EXHIBIT 4(A)
_________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
CHEMICAL BANK
AS TRUSTEE
_________
Indenture
(For Debt Securities)
Dated as of March 1, 1996
_________________________________________
THIS INDENTURE, dated as of ___________, 1996, between
LOUISIANA POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Louisiana (herein called
the "Company"), having its principal office at 639 Loyola Avenue,
New Orleans, Louisiana 70113, and CHEMICAL BANK, a New York
corporation, having its principal corporate trust office at 450
West 33rd Street, New York, New York 10001, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of debentures, notes or other evidences of indebtedness
(herein called the "Securities"), in an unlimited aggregate
principal amount to be issued from time to time in one or more
series as contemplated herein; and all acts necessary to make
this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One or Article Fifteen of this Indenture.
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That and in consideration of the premises and the
purchase of the Securities by the Holders thereof, and in order
to secure the payment of the principal of and premium, if any,
and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants therein and
herein contained and to declare the terms and conditions on which
such Securities are secured, the Company hereby grants, bargains,
sells, conveys, assigns, transfers, mortgages, pledges, sets over
and confirms to the Trustee, and grants to the Trustee a security
interest in, the following (subject, however, to the terms and
conditions set forth in this Indenture):
Granting Clause
All right, title and interest of the Company, as
of the date of the execution and delivery of this
Indenture, in and to all electric utility plant
property owned by the Company, real, personal and
mixed, located in the State of Louisiana or any other
State in the United States of America which property is
more specifically described or referred to in Exhibit A
attached hereto and incorporated herein by this
reference together with all property similar in
character and kind to the Mortgaged Property hereafter
constructed, made or acquired by the Company.
TO HAVE AND TO HOLD all such property, real, personal
and mixed, unto the Trustee, its successors in trust and their
assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of
the execution and delivery of this Indenture (including, but not
limited to, the Liens of the First Mortgage Bond Indenture and
(b) such liens as may be granted upon the Mortgaged Property
hereinafter; and
SUBJECT, FURTHER, to the condition that, with respect
to any property which is now or hereafter becomes subject to the
Lien of the First Mortgage Bond Indenture, the Lien of this
Indenture shall at all times be junior, subject and subordinate
to the Lien of the First Mortgage Bond Indenture;
IN TRUST, NEVERTHELESS, for the equal and ratable
benefit and security of the Holders from time to time of all
Outstanding Securities without any priority of any such Security
over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest
of the Trustee in and to the Mortgaged Property shall cease,
terminate and become void in accordance with, and subject to the
conditions set forth in, Article Seven or Article Fifteen hereof;
otherwise this Indenture, and the estate and rights hereby
granted, shall be and remain in full force and effect; and
IT IS HEREBY COVENANTED AND AGREED by and between the
Company and the Trustee that all the Securities are to be
authenticated and delivered, and that the Mortgaged Property is
to be held, subject to the further covenants, conditions and
trusts hereinafter set forth, and the Company hereby covenants
and agrees to and with the Trustee, for the equal and ratable
benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"Board Resolution" means 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.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
450 West 33rd Street, New York, New York 10001.
"corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the princi
pal of and interest on which are unconditionally guaranteed
by, the United States entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other in
struments which evidence a direct ownership interest in obli
gations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other counsel
acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section 701
(whether or not the Company's indebtedness in respect
thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to Sec
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of
the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each
such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Secu
rities which the Trustee knows to be so owned shall be
so disregarded; provided, however, that Securities so
owned which have been pledged in good faith may be re
garded as Outstanding if it is established to the
reasonable satisfaction of the Trustee that the
pledgee, and not the Company, any such other obligor of
Affiliate of either thereof, has the right so to act
with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securi
ties or any Affiliate of the Company or of such other
obligor; and provided, further, that in no event shall
any Security which shall have been delivered to
evidence or secure, in whole or in part, the Company's
obligations in respect of other indebtedness be deemed
to be owned by the Company if the principal of such
Security is payable, whether at Stated Maturity or upon
mandatory redemption, at the same time as the principal
of such other indebtedness is payable, whether at
Stated Maturity or upon mandatory redemption or
acceleration, but only to the extent of such portion of
the principal amount of such Security as does not
exceed the principal amount of such other indebtedness;
and
(y) the principal amount of a Discount
Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security
which is denominated in a currency other than Dollars
or in a composite currency that shall be deemed to be
Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the princi
pal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth
below of the amount determined as provided in (y)
above) of such currency or composite currency evidenced
by such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (i) on the
average of the mean of the buying and selling spot
rates quoted by three banks which are members of the
New York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time) in The
City of New York on the fifth Business Day preceding
any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to
obtain such quotations from such three banks, on such
other quotations or alternative methods of deter
mination which shall be as consistent as practicable
with the method set forth in (i) above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if
any, or interest, if any, on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of
a series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee,
all as contemplated in Section 301 and clause (b) of Section 303.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company,
limited liability partnership or unincorporated organization or
any Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the place or
places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche are
payable.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Secur
ity to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Securities" means any bonds, notes and other evidences
of indebtedness authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"Successor Corporation" has the meaning set forth in
Section 1101.
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, as amended, or any successor statute, as
in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture 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, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is speci
fically required by any provision of this Indenture relating to
such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
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.
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 Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel 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 counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
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.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided
by this Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, no
tice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may,
and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new Secu
rities of any series, or any Tranche thereof, so modified as
to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order,
fix in advance a record date for the determination of
Holders entitled to give any request, demand, authorization,
direction, notice, consent, waiver or other Act solicited by
the Company, but the Company shall have no obligation to do
so. In addition, the Trustee may, at its option, fix in
advance a record date for the determination of Holders
entitled to join in the giving or making of any Notice of
Default, any declaration of acceleration referred to in
Section 802, any request to institute proceedings referred
to in Section 807 and 812. If any such a record date is
fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act or such notice,
declaration, request or direction may be given before or
after such record date, but only the Holders of record at
the close of business on the record date shall be deemed to
be the Holders for the purposes of determining (i) whether
Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such
Act (and for that purpose the Outstanding Securities shall
be computed as of the record date) and/or (ii) which Holders
may revoke any such Act (notwithstanding subsection (e) of
this Section).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document pro
vided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if the same shall be in writing and delivered
personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or
other direct written electronic means to such telephone number or
other electronic communications address as the parties hereto
shall from time to time designate, or transmitted by registered
mail, charges prepaid, to the applicable address set opposite
such party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention:
Telephone:
Telecopy:
If to the Company, to:
Louisiana Power & Light Company
639 Loyola Avevnue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York, except to the extent that the law of any other jurisdiction
shall be mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the indenture supplemental hereto, Board Resolution or
Officer's Certificate which establishes the terms of the
Securities of such series or Tranche, which specifically states
that such provision shall apply in lieu of this Section) payment
of interest or principal and premium, if any, need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and, if such payment
is made or duly provided for on such Business Day, no interest
shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms established in the indenture
supplemental hereto establishing such series, or in a Board
Resolution establishing such series, or in an Officer's
Certificate pursuant to such a supplemental indenture or Board
Resolution, 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 the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series, there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable
or any formulary or other method or other means by which
such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside this
Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside this Indenture or
otherwise; the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for
the interest payable on such Securities on any Interest
Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and any Paying Agent or
Agents for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable
without the presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at
which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premi
um, if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or in
terest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the coin or currency in which payment of any amount as to
which such election is made will be payable, the period or
periods within which and the terms and conditions upon
which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six and whether any such covenants may be waived
pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of global
form and (iii) any and all other matters incidental to such
Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer, and may have the corporate seal
of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
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
Securities or did not hold such offices at the date of such
Securities.
So long as Article Fifteen is in effect, the Trustee
shall only authenticate and deliver Securities for original issue
pursuant to the provisions of Article Fifteen. When Article
Fifteen is no longer in effect, the Trustee shall authenticate
and deliver Securities of a series, for original issue, at one
time or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a Peri
odic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such
Securities have been duly authorized by the Company and
have been established in conformity with the provisions
of this Indenture;
(ii) that the terms of such Securities have
been duly authorized by the Company and have been estab
lished in conformity with the provisions of this Inden
ture; and
(iii) such Securities, when authenticated
and delivered by the Trustee and issued and delivered
by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order or
Orders or pursuant to such procedures (acceptable to
the Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this Inden
ture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and
to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
(e) an Officer's Certificate to the effect that, to
the knowledge of the signer, no Event of Default has
occurred and is continuing; provided, however, that with
respect to Securities of a series subject to a Periodic
Offering, either (i) such an Officer's Certificate shall be
delivered at the time of the authentication and delivery of
each Security of such series or (ii) the Officer's
Certificate delivered at or prior to the time of the first
authentication and delivery of the Securities of such series
shall state that the statements therein shall be deemed to
be made at the time of each, or each subsequent,
authentication and delivery of Securities of such series.
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or
expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication sub
stantially in the form provided for herein executed by the
Trustee or an Authenticating Agent by manual signature of an
authorized officer thereof, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if (a) any Security shall have
been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and
sold by the Company, (b) the Company shall deliver such Security
to the Security Registrar for cancellation or shall cancel such
Security and deliver evidence of such cancellation to the
Trustee, in each case as provided in Section 309, and (c) the
Company, at its election, shall deliver to the Trustee a written
statement (which need not comply with Section 102 and need not be
accompanied by an Officer's Certificate or an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, then, for all purposes of this Indenture, such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute and
the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to the
Securities of each series, a register (the register kept in
accordance with this Section being referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Securities of such series or any Tranche thereof and the
registration of transfer thereof. The Company shall designate
one Person to maintain the Security Register for the Securities
of each series, and such Person is referred to herein, with
respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register with
respect to the Securities of one or more series shall be
maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee and
the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized denomina
tions and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other govern
mental charge that may be imposed in connection with any registra
tion of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trus
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, but subject to compliance with the foregoing conditions,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, 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 reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the pro
posed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such De
faulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company,
shall promptly cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as
it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special
Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and premium, if any, and
(subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium, if
any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously
called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security
Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Security
Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner pro
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
With respect to any notice of redemption of Securities
at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that such
redemption shall be conditional upon the receipt by the Paying
Agent or Agents for such Securities, on or prior to the date
fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so received
such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that
such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such
money was not so received and such redemption was not required to
be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the
Holders thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment; provided, however, that no Securities shall be applied
in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such mandatory sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding mandatory sinking
fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
404. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) 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 and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than September 15 in each year, commencing
September 15, 1996, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section
301 as being subject to waiver pursuant to this Section 607, if
before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be satisfied and discharged,
if there shall have been irrevocably deposited with the Trustee
or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof; provided, however, that in the case of the
provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions
thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a Company
Order stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel to the effect that
such obligations constitute Eligible Obligations and do
not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof,
and an opinion of an independent public accountant of
nationally recognized standing, selected by the Com
pany, to the effect that the other requirements set
forth in clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon Company Request, acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) (if otherwise required), shall not have
been delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose; and, upon
Company Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503, 602, 603, 907
and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied and discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute such
instruments as the Company shall reasonably request to evidence
and acknowledge the satisfaction and discharge of this Indenture,
when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503, 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposit
ed pursuant to Section 701, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and inter
est, if any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however,
that, so long as there shall not have occurred and be continuing
an Event of Default any cash received from such principal or
interest payments on such Eligible Obligations, if not then
needed for such purpose, shall, to the extent practicable, be
invested upon Company Request and upon receipt of the documents
referred to in clause (y) of Section 701 in Eligible Obligations
of the type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as shall
be sufficient, together with any other moneys and the principal
of and interest on any other Eligible Obligations then held by
the Trustee, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held in accordance with this Section on the Maturity of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due
on such Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture except
the lien provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be continuing, moneys
to be paid over to the Company pursuant to this Section shall be
held until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect
to the Securities of any series, means any one or more of the
following events which shall have occurred and be continuing:
(a) failure to pay interest, if any, on any Security
of such series within 60 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series when due and payable; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series as contemplated by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders
of not less than 33% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or,
if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and payable imme
diately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon such declaration such
principal amount (or specified amount) shall become immediately
due and payable; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the
Securities of any one of such series.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest on all Securities
of such series;
(ii) the principal of and premium, if any,
on any Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(iii) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
Securities; and
(iv) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in
terest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities 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 on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or
on the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensa
tion, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article Eight
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if
any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 907;
Second: To the payment of the amounts then due and un
paid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: To the payment of any surplus then remaining to
the Company, or to whomever may be lawfully entitled
thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceed
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article Eight or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series 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, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. Waiver of Past Defaults.
Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by
his 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, suffered 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 the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(i) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its
part, the Trustee may, with respect to Securities of
such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon 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.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, 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.
(c) No provision 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 wilful
misconduct, except that
(i) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) 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 the direction of
the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as
provided herein, relating to the time, method and place
of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(iv) no provision of this Indenture shall
require the Trustee to expend 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.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 75 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(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, direction, consent, order, bond, debenture, note,
other evidence of indebtedness 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 or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any 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 reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) 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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee
by the Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (ex
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts here
under or the performance of its duties hereunder, including
the reasonable costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article Nine.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
Nine shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(ii) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after
written request therefor by the Company or by any such
Holder, or
(iii) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of 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, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent pro
vided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Nine.
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business.
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 the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article Nine, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an 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 such Authenticating Agent shall be a
party, or any corporation succeeding to all or substantially all
of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof 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 such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be ap
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 and September 15
in each year, commencing September 15, 1996, and at such other
times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as to
the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than September 15 in each year, commencing
September 15, 1996, the Trustee shall transmit to the Holders and
the Commission a report, dated as of the next preceding July 15,
with respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall
file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act.
To the extent required by the Trust Indenture Act, the
Company shall file with the Trustee the following documents and
reports within 30 days after such documents or reports (or
consolidated documents or reports containing such documents or
reports) are filed with the Commission:
A. The Company's annual reports on Form 10-K;
B. The Company's quarterly reports on Form 10-Q;
C. The Company's current reports on Form 8-K; and
D. Any other documents filed with the Commission
which are filed with or incorporated by reference in
the foregoing reports, related to the Company, and have
not previously been filed with the Trustee.
To the extent that any of the foregoing documents or reports are
consolidated with similar documents or reports filed by an
affiliate, the Company may file such consolidated document or
report with the Trustee in lieu of the separate document or
report.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer, or lease,
its properties and assets substantially as an entirety to any
Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases (for a
term extending beyond the last Stated Maturity of the
Securities then Outstanding), the properties and assets of
the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States,
any State thereof or the District of Columbia (such
corporation being hereinafter sometimes called the
"Successor Corporation"), and 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, if any,
and interest, if any, on all Outstanding Securities and the
performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such trans
action and treating any indebtedness for borrowed money
which becomes an obligation of the Company as a result of
such transaction as having been incurred by the Company at
the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance or other
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
Successor Corporation 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 Person had
been named as the Company herein, and thereafter, the predecessor
Person shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder. All
Securities so executed by the Successor Corporation, and all
authenticated and delivered by the Trustee, shall in all respects
be entitled to the benefits provided by this Indenture equally
and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or one or more specified Tranches
thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this Inden
ture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche Outstanding on the
date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(h) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(i) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all
or any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained
herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered to the Company and the
Trustee, the Company and the Trustee may 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; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent
of the Holders of each Outstanding Security of such series
or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof (except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(g).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of such series
or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance there
with, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, 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 Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
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, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities 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 deem appropriate. Except
as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104
or other proof.
(c) 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 Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches 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 vote
of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1000 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, 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 of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders 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 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor cor
poration (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
Issuance of Securities; Possession, Use
and Release of Mortgaged Property
SECTION 1501. Definitions.
For all purposes under this Indenture, so long as this
Article remains in effect, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined
herein have the meanings assigned to them in this Article and
include the plural as well as singular. All terms used herein
without definition which are defined in the Uniform Commercial
Code as in effect in any jurisdiction in which any portion of the
Mortgaged Property is located shall have the meanings assigned to
them therein with respect to such portion of the Mortgaged
Property.
"Authorized Publication" means a newspaper or financial
journal of general circulation, printed in the English language
and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays; or, in the
alternative, shall mean such form of communication as may have
come into general use for the dissemination of information of
import similar to that of the information specified to be
published by the provisions hereof. In the event that successive
weekly publications in an Authorized Publication are required
hereunder they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same
or in different Authorized Publications. In case, by reason of
the suspension of publication of any Authorized Publication, or
by reason of any other cause, it shall be impractical without
unreasonable expense to make publication of any notice in an
Authorized Publication as required by this Indenture, then such
method of publication or notification as shall be made with the
approval of the Trustee shall be deemed the equivalent of the
required publication of such notice in an Authorized Publication.
"Book Value of the Mortgaged Property" has the meaning
specified in Section 1502.
"Charter" means the Amended and Restated Articles of
Incorporation of Louisiana Power & Light Company, dated as of
July 21, 1994 heretofore and hereinafter amended and restated.
"Collateral Balance" has the meaning specified in
Section 1502.
"Expert" means a Person which is an engineer, appraiser
or other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matters set forth in such certificate. For
purposes of this definition, (a) "engineer" means a Person
engaged in the engineering profession or otherwise qualified to
pass upon engineering matters (including, but not limited to, a
Person licensed as a professional engineer, whether or not then
engaged in the engineering profession) and (b) "appraiser" means
a Person engaged in the business of appraising property or
otherwise qualified to pass upon the Fair Value or fair market
value of property.
"Expert's Certificate" means a certificate signed by an
Authorized Officer and by an Expert (which Expert (a) shall be
selected either by the Board of Directors or by an Authorized
Officer, the execution of such certificate by such Authorized
Officer to be conclusive evidence of such selection, and (b)
except as otherwise required in Sections 1516 and 1520, may be an
employee or Affiliate of the Company duly authorized either by
the Board of Directors or by an Authorized Officer) and delivered
to the Trustee. The amount stated in any Expert's Certificate as
to the cost, Fair Value or fair market value of property shall be
conclusive and binding upon the Company, the Trustee and the
Holders of the Securities.
"Fair Value", with respect to property, means the fair
value of such property as may be determined by reference to (a)
the amount which would be likely to be obtained in an arm's-
length transaction with respect to such property between an
informed and willing buyer and an informed and willing seller,
under no compulsion, respectively, to buy or sell, (b) the amount
of investment with respect to such property which, together with
a reasonable return thereon, would be likely to be recovered
through ordinary business operations or otherwise, (c) the cost,
accumulated depreciation and replacement cost with respect to
such property and/or (d) any other relevant factors; provided,
however, that the Fair Value of property shall be determined
without deduction for any Liens on such property prior to the
Lien of this Indenture. Fair Value may be determined, without
physical inspection, by the use of accounting and engineering
records and other data maintained by the Company or otherwise
available to the Expert certifying the same.
"First Mortgage Bonds" means bonds or other obligations
now or hereafter issued and Outstanding under the First Mortgage
Bond Indenture.
"First Mortgage Bond Indenture" means the Mortgage and
Deed of Trust, dated as of April 1, 1944, from Louisiana Power &
Light Company to The Chase National Bank of the City of New York
(Bank of Montreal Trust Company, successor) and Carl E. Buckley
(Mark F. McLaughlin, successor), trustees, as heretofore and
hereafter amended and supplemented.
"First Mortgage Bondholder's Certificate" has the
meaning specified in Section 1511.
"Funded Cash" has the meaning specified in Section
1502.
"Independent", when applied to any Accountant or
Expert, means such a Person who (a) is in fact independent, (b)
does not have any direct material financial interest in the
Company or in any other obligor upon the Securities or in any
Affiliate of the Company or of such other obligor, (c) is not
connected with the Company or such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or
any person performing similar functions and (d) is approved by
the Trustee in the exercise of reasonable care.
"Lien" means any mortgage, deed of trust, pledge,
security interest, encumbrance, easement, lease, reservation,
restriction, servitude, charge or similar right and any other
lien of any kind, including, without limitation, any conditional
sale or other title retention agreement, any lease in the nature
thereof, and any defect, irregularity, exception or limitation in
record title.
"Mortgaged Property" means, as of any particular time,
all property which at such time is subject to the Lien of this
Indenture.
"Officer's Certificate of Collateral Balance" has the
meaning specified in Section 1502.
"Outstanding", where used with respect to First
Mortgage Bonds, has the meaning specified in the First Mortgage
Bond Indenture.
"Pledged Obligations" has the meaning specified in
Section 1516.
"Total Equity" has the meaning specified in Section
1502.
SECTION 1502. Funded Cash; Total Equity; Book Value of Mortgaged
Property;
Officer's Certificate of Collateral Balance.
(a) "Funded Cash" means:
(i) cash, held by the Trustee hereunder, in
connection with the release of First Mortgage Bonds or
the release of Mortgaged Property pursuant to Sections
1514 and 1516, subject to the provisions of Section
1517;
(ii) any cash received by the Trustee from
the payment of the principal of First Mortgage Bonds
delivered to and held by the Trustee pursuant to
Section 1508; and
(iii) any cash, held by the Trustee
hereunder, in connection with the authentication and
delivery of Securities pursuant to Section 1505.
(b) "Book Value of the Mortgaged Property" means the
net book value of the Mortgaged Property as of the date of
determination appearing on the accounts of the Company kept
in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the
financial statements of the Company filed with the
Commission.
(c) "Total Equity" shall mean the sum of the capital
stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus,
paid-in surplus, capital surplus and the balance of current
profit and loss account not transferred to surplus) accounts
of the Company appearing on a balance sheet of the Company
prepared as of the date of determination in accordance with
generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
of the Company filed with the Commission.
(d) An "Officer's Certificate of Collateral Balance"
shall mean an Officer's Certificate,
(i) stating the amount of the Book Value of
Mortgaged Property determined as of a stated date,
which stated date shall be not more than six months
prior to the date of such Officer's Certificate;
(ii) stating the amount of Funded Cash held
by the Trustee as of the date of such Officer's
Certificate;
(iii) stating the principal amount of all
Outstanding First Mortgage Bonds (other than the First
Mortgage Bonds delivered to the Trustee under this
Indenture) as of the date of such Officer's
Certificate;
(iv) stating the principal amount of all
Outstanding Securities issued pursuant to this
Indenture immediately prior to the delivery of such
Officer's Certificate;
(v) stating the aggregate principal amount
of all outstanding debt securities (other than First
Mortgage Bonds) of the Company secured by a Lien on the
Mortgaged Property prior to the Lien of the Indenture
which are outstanding as of the date of such Officer's
Certificate; and
(vi) stating the aggregate Fair Value of all
Mortgaged Property released from the Lien of this
Indenture after the date stated in clause (1) above;
(vii) stating the "Collateral Balance" as
of the date of such Officer's Certificate, which shall
be (A) the amount stated in clause (i) above, plus (B)
the amount stated in clause (ii) above, less (C) the
sum of the amounts stated in clauses (iii) through (vi)
above.
SECTION 1503. Issuance of Securities on the Basis of Total
Equity.
(a) Securities of any one or more series may be
authenticated and delivered on the basis of Total Equity.
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of Total Equity
upon receipt by the Trustee of:
(i) the documents with respect to the
Securities of such series specified in Section 303,
including a Company Order requesting authentication and
delivery of such Securities;
(ii) an Officer's Certificate of Collateral
Balance dated as of the date of such Company Order
showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
(iii) an Officer's Certificate dated as
of the date of such Company Order;
(A) stating the amount of Total
Equity determined as of a stated date, which
stated date shall be not more than six months
prior to the date of such Company Order;
(B) stating the aggregate
principal amount of Securities previously
authenticated and delivered on the basis of Total
Equity (including any Securities previously
authenticated and delivered on the basis of First
Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of
Total Equity pursuant to Sections 1514 or 1517
hereof) which are Outstanding as of the date of
such Company Order;
(C) stating the aggregate
principal amount of Securities requested to be
authenticated and delivered on the basis of such
Total Equity by such Company Order; and
(D) stating that the sum of the
amounts stated in clauses (B) and (C) above does
not exceed three times the amount of Total Equity
stated in clause (A) above.
SECTION 1504. Issuance of Securities on the Basis of First
Mortgage Bonds.
(a) Securities of any one or more series may be
authenticated and delivered on the basis of, and in an
aggregate principal amount not exceeding, the aggregate
principal amount of First Mortgage Bonds delivered to the
Trustee for such purpose.
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of the delivery to
the Trustee of First Mortgage Bonds which have not
theretofore been made the basis of the issuance of
Securities under any provisions of this Indenture upon
receipt by the Trustee of:
(i) First Mortgage Bonds (A) maturing (or
being subject to mandatory redemption) on such dates
and in such principal amounts that, at each Stated
Maturity of the Securities of such series (or the
Tranche thereof then to be authenticated and
delivered), there shall mature (or be redeemed) First
Mortgage Bonds equal in principal amount to the
Securities of such series or Tranche then to mature and
(B) containing, in addition to any mandatory redemption
provisions applicable to all First Mortgage Bonds
Outstanding under the First Mortgage Bond Indenture and
any mandatory redemption provisions contained therein
pursuant to clause (A) 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 such series or Tranche
or for the redemption thereof at the option of the
Holder; it being expressly understood that such First
Mortgage Bonds (X) may, but need not, bear interest,
(Y) may, but need not, contain provisions for the
redemption thereof at the option of the Company, 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 in accordance with
this Article Fifteen;
(ii) the documents with respect to the
Securities of such series specified in Section 303,
including the Company Order requesting the
authentication and delivery of such Securities;
(iii) an Officer's Certificate of
Collateral Balance dated as of the date of such Company
Order showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
(iv) an Opinion of Counsel to the effect
that:
(A) the form or forms of such
First Mortgage Bonds have been duly authorized by
the Company and have been established in
conformity with the provisions of the First
Mortgage Bond Indenture;
(B) the terms of such First
Mortgage Bonds have been duly authorized by the
Company and have been established in conformity
with the provisions of the First Mortgage Bond
Indenture; and
(C) (I) such First Mortgage Bonds
have been duly authenticated and delivered by the
trustee under the First Mortgage Bond Indenture
and (II) when the Securities to be authenticated
and delivered on the basis of the delivery to the
Trustee of such First Mortgage Bonds shall have
been authenticated and delivered by the Trustee in
accordance with this Indenture and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such First Mortgage Bonds will constitute
valid obligations of the Company, entitled to the
benefit of the Lien of the First Mortgage Bond
Indenture equally and ratably with all other First
Mortgage Bonds then Outstanding under the First
Mortgage Bond Indenture.
provided, however, that, with respect to
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the
first authentication and delivery of such Securities
and that, in lieu of the opinions described in clauses
(B) and (C) above, Counsel may opine that:
(X) when the terms of such First
Mortgage Bonds shall have been established in
accordance with the instrument or instruments
creating the series of which such First Mortgage
Bonds are a part, such terms will have been duly
authorized by the Company and will have been
established in conformity with the provisions of
the First Mortgage Bond Indenture; and/or
(Y) (I) either (1) such First
Mortgage Bonds have been duly authenticated and
delivered by the trustee under the First Mortgage
Bond Indenture or (2) when such First Mortgage
Bonds shall have been authenticated and delivered
by the trustee under the First Mortgage Bond
Indenture in accordance with the instrument or
instruments creating the series of which such
First Mortgage Bonds are a part, such First
Mortgage Bonds will have been duly authenticated
and delivered under the First Mortgage Bond
Indenture and (II) when such First Mortgage Bonds
shall have been issued and delivered by the
Company in the manner and subject to any
conditions specified in such Opinion of Counsel,
and when the Securities to be authenticated and
delivered on the basis of the delivery to the
Trustee of such First Mortgage Bonds shall have
been authenticated and delivered by the Trustee in
accordance with this Indenture and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such First Mortgage Bonds will constitute
valid obligations of the Company, entitled to the
benefit of the Lien of the First Mortgage Bond
Indenture equally and ratably with all other First
Mortgage Bonds then Outstanding under the First
Mortgage Bond Indenture.
SECTION 1505. Issuance of Securities on the Basis of Deposit of
Cash.
(a) Securities of any one or more series may be
authenticated and delivered on the basis of, and in an
aggregate principal amount not exceeding the amount of, any
deposit with the Trustee of cash for such purpose; and
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of the deposit of
cash when the Trustee shall have received, in addition to
such deposit,
(i) the documents with respect to the
Securities of such series specified in Section 303,
including a Company Order requesting authentication and
delivery of such Securities; and
(ii) an Officer's Certificate of Collateral
Balance dated as of the date of such Company Order
showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
SECTION 1506. Additional Covenants.
In addition to satisfying the covenants contemplated by
Article Six, the Company shall:
(a) maintain and preserve the Lien of the Indenture so
long as any Securities remain Outstanding, subject, however,
to the provisions of Sections 1513, 1514, 1515, 1516 and
1532; and
(b) pay all taxes and assessments and other
governmental charges lawfully levied or assessed upon the
Mortgaged Property, or upon any part thereof, or upon the
interest of the Trustee in the Mortgaged Property, before
the same shall become delinquent, and shall make reasonable
effort to observe and conform in all material respects to
all valid requirements of any Governmental Authority
relative to any of the Mortgaged Property and all covenants,
terms and conditions upon or under which any of the
Mortgaged Property is held; provided, however, that nothing
in this Section contained shall require the Company (i) to
observe or conform to any requirement of Governmental
Authority or to cause to be paid or discharged, or to pay
any such tax, assessment or governmental charge so long as
the validity thereof shall be contested in good faith and by
appropriate legal proceedings, (ii) to pay, discharge or
make provisions for any tax, assessment or other
governmental charge, the validity of which shall not be so
contested if adequate security for the payment of such tax,
assessment or other governmental charge and for any
penalties or interest which may reasonably be anticipated
from failure to pay the same shall be given to the Trustee
or (iii) to pay, discharge or make provisions for any Liens
existing on the Mortgaged Property at the date of execution
and delivery of this Indenture; and provided, further, that
nothing in this subsection shall prohibit the issuance or
other incurrence of additional indebtedness, or the
refunding of outstanding indebtedness, secured by any Lien
prior to the Lien hereof which is permitted under this
subsection to continue to exist; and
(c) cause this Indenture and all indentures and
instruments supplemental hereto (or notices, memoranda or
financing statements as may be recorded or filed to place
third parties on notice thereof) to be promptly recorded and
filed and re-recorded and re-filed in such manner and in
such places, as may be required by law in order fully to
preserve and protect the security of the Holders of the
Securities and all rights of the Trustee, and shall furnish
to the Trustee:
(i) promptly after the execution and
delivery of this Indenture and of each supplemental
indenture, an Opinion of Counsel either stating that in
the opinion of such counsel this Indenture or such
supplemental indenture (or any other instrument,
notice, memorandum or financing statement in connection
therewith) has been properly recorded and filed, so as
to make effective the Lien intended to be created
hereby or thereby, and reciting the details of such
action, or stating that in the opinion of such counsel
no such action is necessary to make such Lien
effective. The Company shall be deemed to be in
compliance with this subsection (i) if (A) the Opinion
of Counsel herein required to be delivered to the
Trustee shall state that this Indenture or such
supplemental indenture (or any other instrument,
notice, memorandum or financing statement in connection
therewith) has been received for record or filing in
each jurisdiction in which it is required to be
recorded or filed and that, in the opinion of such
counsel (if such is the case), such receipt for record
or filing makes effective the Lien intended to be
created by this Indenture or such supplemental
indenture, and (B) such opinion is delivered to the
Trustee within such time, following the date of the
execution and delivery of this Indenture or such
supplemental indenture, as shall be practicable having
due regard to the number and distance of the
jurisdictions in which this Indenture or such
supplemental indenture (or such other instrument,
notice, memorandum or financing statement in connection
therewith) is required to be recorded or filed; and
(ii) on or before September 15 of each year,
beginning September 15, 1996, an Opinion of Counsel
stating either (A) 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
subsection (ii) or the first Opinion of Counsel
furnished pursuant to subsection (i) of this
subsection, with respect to the recording, filing, re-
recording, and re-filing of this Indenture and of each
indenture supplemental to this Indenture (or any other
instrument, notice, memorandum or financing statement
in connection therewith), as is necessary to maintain
the effectiveness of the Lien hereof, and reciting the
details of such action, or (B) that in the opinion of
such counsel no such action is necessary to maintain
the effectiveness of such Lien.
The Company shall execute and deliver such supplemental
indenture or indentures and such further instruments and do such
further acts as may be necessary or proper to carry out the
purposes of this Indenture and to make subject to the Lien hereof
any property hereafter acquired, made or constructed and intended
to be subject to the Lien hereof, and to transfer to any new
trustee or trustees or co-trustee or co-trustees, the estate,
powers, instruments or funds held in trust hereunder.
SECTION 1507. Registration and Ownership of First Mortgage Bonds
Held by Trustee.
First Mortgage Bonds delivered to the Trustee pursuant
to Section 1504 shall be registered in the name of the Trustee or
its nominee and shall be owned and held by the Trustee, subject
to the provisions of this Indenture, for the benefit of the
Holders of all Securities from time to time Outstanding, and the
Company shall have no interest therein. The Trustee shall be
entitled to exercise all rights of securityholders under the
First Mortgage Bond Indenture either in its discretion or as
otherwise provided in this Article Fifteen.
SECTION 1508. Payments on First Mortgage Bonds.
(a) Any payment by the Company of principal of or
premium or interest on any First Mortgage Bonds delivered to
and held by the Trustee pursuant to Sections 1504 and 1507
shall be applied by the Trustee to the payment of any
principal, premium or interest, as the case may be, in
respect of the Securities which is then due, and, to the
extent of such application, the obligation of the Company
hereunder to make such payment in respect of the Securities
shall be deemed to have been satisfied and discharged.
If, at the time of any such payment of principal of
First Mortgage Bonds delivered to and held by the Trustee
pursuant to Sections 1504 and 1507, there shall be no principal
then due in respect of the Securities, such payment in respect of
such First Mortgage Bonds shall be deemed to constitute Funded
Cash and shall be held by the Trustee as part of the Mortgaged
Property, to be withdrawn, used or applied in the manner, to the
extent and for the purposes provided in Section 1517.
If, at the time of any such payment of premium or
interest on First Mortgage Bonds delivered to and held by the
Trustee pursuant to Sections 1504 and 1507, there shall be no
premium or interest, as the case may be, then due in respect of
the Securities, such payment in respect of such First Mortgage
Bonds shall be remitted to the Company upon receipt by the
Trustee of a Company Order requesting the same, together with an
Officer's Certificate stating that no Event of Default has
occurred and is continuing; provided, however, that, if an Event
of Default shall have occurred and be continuing, such proceeds
shall be held as part of the Mortgaged Property until such Event
of Default shall have been cured or waived.
(b) Any payment by the Company hereunder of principal
of or premium or interest on Securities which shall have
been authenticated and delivered upon the basis of the
delivery to the Trustee of First Mortgage Bonds (other than
by the application of the proceeds of a payment in respect
of such First Mortgage Bonds) shall, to the extent thereof,
be deemed, for all purposes of this Indenture, to satisfy
and discharge the obligation of the Company, if any, to make
a payment of principal, premium or interest, as the case may
be, in respect of such First Mortgage Bonds which is then
due.
(c) The Trustee hereby waives notice of any redemption
of First Mortgage Bonds delivered to it pursuant to Section
1504.
SECTION 1509. Surrender of First Mortgage Bonds.
At the time any Securities which shall have been
authenticated and delivered on the basis of the delivery to the
Trustee of First Mortgage Bonds cease to be Outstanding (other
than as a result of the application of the proceeds of the
payment or redemption of such First Mortgage Bonds), the Trustee
shall surrender to, or upon the order of, the Company an equal
principal amount of such First Mortgage Bonds.
SECTION 1510. No Transfer of First Mortgage Bonds.
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall not sell, assign or otherwise
transfer any First Mortgage Bonds delivered to and held by it
pursuant to Sections 1504 and 1507 except to a successor trustee
under this Indenture and except as provided in Section 1509. The
Company may take such actions as it shall deem necessary,
desirable or appropriate to effect compliance with such
restrictions on transfer, including the placing of a legend on
each such First Mortgage Bond and the issuance of stop-transfer
instructions to the trustee under the First Mortgage Bond
Indenture or any other transfer agent thereunder.
SECTION 1511. Voting of First Mortgage Bonds.
The Trustee shall, as the holder of First Mortgage
Bonds delivered to and held by it pursuant to Sections 1504 and
1507, attend such meeting or meetings of bondholders under the
First Mortgage Bond Indenture or, at its option, deliver its
proxy in connection therewith, as such meetings relate to matters
with respect to which it, as such holder, is entitled to vote or
consent. So long as no Event of Default hereunder shall have
occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the
First Mortgage Bonds Outstanding under the First Mortgage Bond
Indenture is sought without a meeting, the Trustee shall vote as
holder of First Mortgage Bonds delivered to and held by it
pursuant to Sections 1504 and 1507 which were delivered under the
First Mortgage Bond Indenture, or shall consent with respect
thereto, as follows:
(a) the Trustee shall vote all such First Mortgage
Bonds delivered under the First Mortgage Bond Indenture, or
shall consent with respect thereto, in favor of any or all
amendments or modifications of substantially the same tenor
and effect as any or all of those set forth in Exhibit B to
this Indenture;
(b) with respect to any other amendments or
modifications of the First Mortgage Bond Indenture, the
Trustee shall vote all such First Mortgage Bonds delivered
under the First Mortgage Bond Indenture, or shall consent
with respect thereto, proportionately with the vote of all
other First Mortgage Bonds Outstanding the holders of which
are eligible to vote or consent, as indicated in a First
Mortgage Bondholder's Certificate delivered to the Trustee;
provided, however, that the Trustee shall not so vote in
favor of, or so consent to, any amendment or modification of
the First Mortgage Bond Indenture which, if it were an
amendment or modification of this Indenture, would require
the consent of Holders, without the prior consent, obtained
in the manner prescribed in Section 1202, of Holders of
Securities which would be required under said Section 1202
for such an amendment or modification of this Indenture.
For purposes of this Section, "First Mortgage
Bondholder's Certificate" means a certificate signed by the
temporary chairman, the temporary secretary, the permanent
chairman, the permanent secretary, or an inspector of votes at
any meeting or meetings of bondholders under the First Mortgage
Bond Indenture, or by the trustee under the First Mortgage Bond
Indenture in the case of consents of such bondholders which are
sought without a meeting, which states what the signer thereof
reasonably believes will be the proportionate votes or consents
of the holders of all First Mortgage Bonds (other than the First
Mortgage Bonds delivered to and held by the Trustee pursuant to
Sections 1504 and 1507) outstanding under such First Mortgage
Bond Indenture and counted for the purposes of determining
whether such bondholders have approved or consented to the matter
put before them.
SECTION 1512. Quiet Enjoyment.
Unless one or more Events of Default shall have
occurred and be continuing, the Company shall be permitted to
possess, use and enjoy the Mortgaged Property (except, to the
extent not herein otherwise provided, such cash and securities as
are expressly required to be deposited with the Trustee).
SECTION 1513. Dispositions without Release.
Unless an Event of Default shall have occurred and be
continuing, the Company may at any time and from time to time,
without any release or consent by, or report to, the Trustee:
(a) sell or otherwise dispose of, free from the Lien
of this Indenture, any machinery, equipment, apparatus,
towers, transformers, poles, lines, cables, conduits, ducts,
conductors, meters, regulators, holders, tanks, retorts,
purifiers, odorizers, scrubbers, compressors, valves, pumps,
mains, pipes, service pipes, fittings, connections,
services, tools, implements, or any other fixtures or
personalty, then subject to the Lien hereof, which shall
have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use
in the operations of the Company upon replacing the same by,
or substituting for the same, similar or analogous property,
or other property performing a similar or analogous function
or otherwise obviating the need therefor, having a Fair
Value at least equal to that of the property sold or
otherwise disposed of and subject to the Lien hereof,
subject to no Liens prior hereto except any other Liens to
which the property sold or otherwise disposed of was
subject;
(b) cancel or make changes or alterations in or
substitutions for any and all easements, servitudes, rights-
of-way and similar rights and/or interests; and
(c) grant, free from the Lien of this Indenture,
easements, ground leases or rights-of-way in, upon, over
and/or across the property or rights-of-way of the Company
for the purpose of roads, pipe lines, transmission lines,
distribution lines, communication lines, railways, removal
of coal or other minerals or timber, and other like
purposes, or for the joint or common use of real property,
rights-of-way, facilities and/or equipment; provided,
however, that such grant shall not materially impair the use
of the property or rights-of-way for the purposes for which
such property or rights-of-way are held by the Company.
SECTION 1514. Release of First Mortgage Bonds.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any First
Mortgage Bonds then held by the Trustee, and the Trustee shall
release all its right and interest in and to the same from the
Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
First Mortgage Bonds and transmitting therewith a form of
instrument to effect such release;
(b) an Officer's Certificate stating that, to the
knowledge of the signer, no Event of Default has occurred
and is continuing;
(c) an Expert's Certificate made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the First Mortgage Bonds to
be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the First Mortgage Bonds to be
released;
(iii) stating the principal amount of the
First Mortgage Bonds to be released;
(iv) stating that such release is, in the
judgment of the signers, desirable in the conduct of
business of the Company; and
(v) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof; and
(d) the amount of cash to be held by the Trustee as
part of the Mortgaged Property, equal to the amount, if any,
by which the amount referred to in clause (c)(iii) above
exceeds the aggregate of the following items:
(i) the aggregate principal amount of any
Outstanding Securities delivered to the Trustee; and
(ii) an amount which shall not exceed the
Collateral Balance shown on an accompanying Officer's
Certificate of Collateral Balance, provided that an
Officer's Certificate dated as of the date of such
Company Order shall also be delivered to the Trustee,
(A) stating the amount of Total
Equity determined as of a stated date, which
stated date shall be not more than six months
prior to the date of such Company Order;
(B) stating the aggregate
principal amount of Securities previously
authenticated and delivered on the basis of Total
Equity (including any Securities previously
authenticated and delivered on the basis of First
Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of
Total Equity pursuant to Sections 1514 or 1517
hereof) which are Outstanding as of the date of
such Company Order;
(C) stating the aggregate principal
amount of First Mortgage Bonds requested to be
released by such Company Order; and
(D) stating that the sum of the
amounts stated in clauses (B) and (C) above does
not exceed three times the amount of Total Equity
stated in clause (A) above.
Any Outstanding Securities deposited with the Trustee
pursuant to clause (d)(i) of this Section shall forthwith be
canceled by the Trustee. Any cash so deposited with the Trustee
shall be held as part of the Mortgaged Property and shall be
withdrawn, released, used or applied in the manner, to the extent
and for the purposes, and subject to the conditions, provided in
Section 1517.
Any Outstanding Securities which were authenticated and
delivered on the basis of First Mortgage Bonds released pursuant
to this Section shall after such release be deemed to have been
authenticated and delivered on the basis of Total Equity.
SECTION 1515. Release of Mortgaged Property.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the
Mortgaged Property, or any interest therein, (other than Funded
Cash or First Mortgage Bonds deposited with the Trustee) and the
Trustee shall release all its right, title and interest in and to
the same from the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
property and transmitting therewith a form of instrument to
effect such release;
(b) an Officer's Certificate dated as of the date of
such Company Order stating that, to the knowledge of the
signer, no Event of Default has occurred and is continuing;
(c) an Officer's Certificate of Collateral Balance
dated as of the date of such Company Order showing a
Collateral Balance not less than the Fair Value of the
property to be released as shown on the accompanying
Expert's Certificate;
(d) an Expert's Certificate, made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the property to be released;
(iii) stating that (except in any case
where a Governmental Authority has ordered the Company
to divest itself of such property) such release is, in
the opinion of the signers, desirable in the conduct of
the business of the Company; and
(iv) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof.
SECTION 1516. Release of Mortgaged Property on the Basis of Cash
or Pledged Obligations.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the
Mortgaged Property, or any interest therein, (other than Funded
Cash or First Mortgage Bonds deposited with the Trustee) and the
Trustee shall release all its right, title and interest in and to
the same from the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
property and transmitting therewith a form of instrument to
effect such release;
(b) an Officer's Certificate dated as of the date of
such Company Order stating that, to the knowledge of the
signer, no Event of Default has occurred and is continuing;
(c) an Expert's Certificate, made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the property to be released;
(iii) stating that (except in any case
where a Governmental Authority has ordered the Company
to divest itself of such property) such release is, in
the opinion of the signers, desirable in the conduct of
the business of the Company; and
(iv) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof; and
(d) an amount of cash to be held by the Trustee as
part of the Mortgaged Property, equal to the amount, if any,
by which the amount referred to in clause (c)(ii) above
exceeds the Fair Value to the Company, as set forth in an
accompanying Expert's Certificate described below, of any
Pledged Obligations delivered to the Trustee.
If the release of Mortgaged Property is, in whole or in
part, based upon the delivery to the Trustee of Pledged
Obligations, the Company shall deliver to the Trustee an Expert's
Certificate
(A) stating the Fair Value to the Company, in the
judgment of the signers, of the Pledged Obligations to be
delivered to the Trustee as the basis of such release;
(B) stating the aggregate Fair Value, as stated in
Expert's Certificates previously delivered to the Trustee,
of all other securities (other than Securities or First
Mortgage Bonds) made the basis of any authentication and
delivery of Securities, the withdrawal of Funded Cash or the
release of Mortgaged Property since the commencement of the
then calendar year;
(C) stating the sum of the amounts stated in clauses
(A) and (B) above; and
(D) stating the aggregate principal amount of all
Securities then Outstanding.
If the amount stated in clause (C) above is 10 per centum or more
of the amount stated in clause (D), such Expert's Certificate
shall be made by an Independent Expert unless the amount stated
in clause (A) above is less than $25,000 or less than 1 per
centum of the amount stated in clause (D) above.
Any cash so deposited with the Trustee shall be held as
part of the Mortgaged Property and shall be withdrawn, released,
used or applied in the manner, to the extent and for the
purposes, and subject to the conditions, provided in Section
1517. Any Pledged Obligations so delivered to the Trustee shall
be held as part of the Mortgaged Property, shall be deemed part
of the Mortgaged Property for all purposes under this Indenture,
and may be released in the manner, to the extent and for the
purposes, and subject to the conditions, provided in this Section
or in Section 1515.
The principal of and interest on any Pledged
Obligations held by the Trustee shall be collected by the Trustee
as and when the same become payable, shall be held as part of the
Mortgaged Property and shall be withdrawn, released, used or
applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in Section 1517.
"Pledged Obligations" shall mean Government Obligations
owned by the Company and delivered to the Trustee pursuant to
this Section.
SECTION 1517. Withdrawal or Other Application of Funded Cash.
Subject to the provisions of Section 1508(a) and except
as hereafter in this Section provided, unless an Event of Default
shall have occurred and be continuing, any Funded Cash held by
the Trustee, and any other cash which is required to be
withdrawn, used or applied as provided in this Section,
(a) may be withdrawn from time to time by the Company
in an amount up to the Collateral Balance shown in an
accompanying Officer's Certificate of Collateral Balance
dated as of the date of the Company Order requesting such
withdrawal, provided that an Officer's Certificate dated as
of the date of such Company Order shall also be delivered to
the Trustee,
(i) stating the amount of Total Equity
determined as of a stated date, which stated date shall
be not more than six months prior to the date of such
Company Order;
(ii) stating the aggregate principal amount
of Securities previously authenticated and delivered on
the basis of Total Equity (including any Securities
previously authenticated and delivered on the basis of
First Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of Total
Equity pursuant to Sections 1514 or 1517 hereof) which
are Outstanding as of the date of such Company Order;
(iii) stating the amount of cash
requested to be withdrawn by such Company Order; and
(iv) stating that the sum of the amounts
stated in clauses (ii) and (iii) above does not exceed
three times the amount of Total Equity stated in clause
(i) above.
(b) may be withdrawn from time to time by the Company
in an amount equal to the aggregate principal amount of any
Outstanding Securities delivered to the Trustee;
(c) may, upon the request of the Company, be used by
the Trustee for the purchase of Securities in the manner, at
the time or times, in the amount or amounts, at the price or
prices and otherwise as directed or approved by the Company,
all subject to the limitations hereafter in this Section set
forth; or
(d) may, upon the request of the Company, be applied
by the Trustee to the payment (or provision therefor
pursuant to Article Seven) at Stated Maturity of any
Securities or to the redemption (or similar provision
therefor) of any Securities which are, by their terms,
redeemable, in each case of such series as may be designated
by the Company, any such redemption to be in the manner and
as provided in Article Four, all subject to the limitations
hereafter in this Section set forth.
Such moneys shall, from time to time, be paid or used
or applied by the Trustee, as aforesaid, upon the request of the
Company in a Company Order, and upon receipt by the Trustee of an
Officer's Certificate dated as of the date of such Company Order
stating that, to the knowledge of the signer, no Event of Default
has occurred and is continuing.
Notwithstanding the generality of clauses (c) and (d)
above, no cash to be applied pursuant to such clauses shall be
applied to the payment of an amount in excess of the principal
amount of any Securities to be purchased, paid or redeemed except
to the extent that the aggregate principal amount of all
Securities theretofore, and of all Securities then to be,
purchased, paid or redeemed pursuant to such clauses is not less
than the aggregate cost for principal of, premium, if any, and
accrued interest, if any, on and brokerage commissions, if any,
with respect to, such Securities.
Any Securities received by the Trustee pursuant to the
provisions of this Section shall forthwith be canceled by the
Trustee.
Any Outstanding Securities which were authenticated and
delivered on the basis of cash deposited with the Trustee which
cash is withdrawn pursuant to this Section shall after such
withdrawal be deemed to have been authenticated and delivered on
the basis of Total Equity.
SECTION 1518. Alternative Release Provision.
Anything in this Indenture to the contrary
notwithstanding, unless an Event of Default shall have occurred
and be continuing, the Company may obtain the release of any part
of the Mortgaged Property which is subject to the Lien of the
First Mortgage Bond Indenture (except cash), without compliance
with any of the provisions of Section 1514, 1515 or 1516, by
delivery to the Trustee of an Officer's Certificate stating that,
to the knowledge of the signer, no Event of Default has occurred
and is continuing, an Expert's Certificate as to the Fair Value
of the property to be released and a copy of a release of such
part of the Mortgaged Property from the Lien of the First
Mortgage Bond Indenture executed by the trustee thereunder.
SECTION 1519. Disclaimer or Quit Claim.
In case the Company has sold, exchanged, dedicated or
otherwise disposed of, or has agreed or intends to sell,
exchange, dedicate or otherwise dispose of, or a Governmental
Authority has ordered the Company to divest itself of, any
Excepted Property or any other property not subject to the Lien
hereof, or the Company desires to disclaim or quitclaim title to
property to which the Company does not purport to have title, the
Trustee shall, from time to time, disclaim or quitclaim such
property upon receipt by the Trustee of the following:
(a) a Company Order requesting such disclaimer or
quitclaim and transmitting therewith a form of instrument to
effect such disclaimer or quitclaim;
(b) an Officer's Certificate describing the property
to be disclaimed or quitclaimed; and
(c) an Opinion of Counsel stating the signer's opinion
that such property is not subject to the Lien hereof or
required to be subject thereto by any of the provisions
hereof.
SECTION 1520. Miscellaneous.
(a) The Expert's Certificate as to the Fair Value of
property to be released from the Lien of this Indenture in
accordance with any provision of this Article, and as to the
nonimpairment, by reason of such release, of the security
under this Indenture in contravention of the provisions
hereof, shall be made by an Independent Expert if the Fair
Value of such property and of all other property released
since the commencement of the then current calendar year, as
set forth in the certificates required by this Indenture, is
10% or more of the sum of the aggregate principal amount of
the Securities at the time Outstanding; but such Expert's
Certificate shall not be required to be made by an
Independent Expert in the case of any release of property if
the Fair Value thereof, as set forth in the certificates
required by this Indenture, is less than $25,000 or less
than 1% of the aggregate principal amount of the Securities
at the time Outstanding. To the extent that the Fair Value
of any property to be released from the Lien of this
Indenture shall be stated in an Independent Expert's
Certificate, such Fair Value shall not be required to be
stated in any other Expert's Certificate delivered in
connection with such release.
(b) No release of property from the Lien of this
Indenture effected in accordance with the provisions, and in
compliance with the conditions, set forth in this Article
and in Sections 102 and 103 shall be deemed to impair the
security of this Indenture in contravention of any provision
hereof.
(c) If the Mortgaged Property shall be in the
possession of a receiver or trustee, lawfully appointed, the
powers hereinbefore conferred upon the Company with respect
to the release of any part of the Mortgaged Property or any
interest therein or the withdrawal of cash may be exercised,
with the approval of the Trustee, by such receiver or
trustee, notwithstanding that an Event of Default may have
occurred and be continuing, and any request, certificate,
appointment or approval made or signed by such receiver or
trustee for such purposes shall be as effective as if made
by the Company or any of its officers or appointees in the
manner herein provided; and if the Trustee shall be in
possession of the Mortgaged Property under any provision of
this Indenture, then such powers may be exercised by the
Trustee in its discretion notwithstanding that an Event of
Default may have occurred and be continuing.
(d) If the Company shall retain any interest in any
property released from the Lien of this Indenture as
provided in Section 1515 or 1516, this Indenture shall not
become or be, or be required to become or be, a Lien upon
such property or such interest therein or any improvements,
extensions or additions to such property or renewals,
replacements or substitutions of or for such property or any
part or parts thereof unless the Company shall execute and
deliver to the Trustee an indenture supplemental hereto, in
recordable form, containing a grant, conveyance, transfer
and mortgage thereof.
(e) Notwithstanding the occurrence and continuance of
an Event of Default, the Trustee, in its discretion, may
release from the Lien hereof any part of the Mortgaged
Property or permit the withdrawal of cash, upon compliance
with the other conditions specified in this Article in
respect thereof.
(f) No purchaser in good faith of property purporting
to have been released hereunder shall be bound to ascertain
the authority of the Trustee to execute the release, or to
inquire as to any facts required by the provisions hereof
for the exercise of this authority; nor shall any purchaser
or grantee of any property or rights permitted by this
Article to be sold, granted, exchanged, dedicated or
otherwise disposed of, be under obligation to ascertain or
inquire into the authority of the Company to make any such
sale, grant, exchange, dedication or other disposition.
SECTION 1521. Additional Defaults.
In addition to those provisions contemplated by Article
Eight, so long as the Trustee shall hold any Outstanding First
Mortgage Bonds which were delivered to the Trustee as the basis
for the authentication and delivery of Securities which remain
Outstanding hereunder, the occurrence of a matured event of
default under the First Mortgage Bond Indenture under which such
First Mortgage Bonds were delivered (other than any such matured
event of default which (i) is of similar kind or character to the
Event of Default described in clause (c) of Section 801 and (ii)
has not resulted in the acceleration of the First Mortgage Bonds
Outstanding under the First Mortgage Bond Indenture) shall
constitute an Event of Default hereunder; provided, however,
that, anything in this Indenture to the contrary notwithstanding,
the waiver or cure of such event of default under the First
Mortgage Bond Indenture and the rescission and annulment of the
consequences thereof shall constitute a waiver of the
corresponding Event of Default hereunder and a rescission and
annulment of the consequences thereof.
SECTION 1522. Acceleration of Maturity; Rescission and
Annulment.
So long as this Article remains in effect, this Section
will replace Section 802. If an Event of Default shall have
occurred and be continuing, then in every such case the Trustee
or the Holders of not less than 33% in principal amount of the
Securities then Outstanding may declare the principal amount (or,
if any of the Securities are Discount Securities, such portion of
the principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) of all
Securities then Outstanding to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given
by Holders), and upon such declaration such principal amount (or
specified amount), together with premium, if any, and accrued
interest, if any, thereon, shall become immediately due and pay
able.
At any time after such a declaration of acceleration of
the maturity of the Securities then Outstanding shall have been
made, but before any sale of any of the Mortgaged Property has
been made and before a judgment or decree for payment of the
money due shall have been obtained by the Trustee as provided in
Article Eight and in this Article, the Event or Events of Default
giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration
and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all
Securities then Outstanding;
(ii) the principal of and premium, if any,
on any Securities then Outstanding which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Securities; and
(iii) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default, other than
the non-payment of the principal of Securities which shall
have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 1523. Entry upon Mortgaged Property.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and be
continuing, the Company, upon demand of the Trustee and if and to
the extent permitted by law, shall forthwith surrender to the
Trustee the actual possession of, and the Trustee, by such
officers or agents as it may appoint, may enter upon and take
possession of, the Mortgaged Property; and the Trustee may hold,
operate and manage the Mortgaged Property and make all needful
repairs and such renewals, replacements, betterments and
improvements as to the Trustee shall seem prudent; and the
Trustee may receive the rents, issues, profits, revenues and
other income of the Mortgaged Property, to the extent, if any,
that the same shall not then constitute Excepted Property; and,
after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Mortgaged
Property, as well as payments for insurance and taxes and other
proper charges upon the Mortgaged Property prior to the Lien of
this Indenture and reasonable compensation to itself, its agents
and counsel, the Trustee may apply the same as provided in
Section 806. Whenever all that is then due in respect of the
principal of and premium, if any, and interest, if any, on the
Securities and under any of the terms of this Indenture shall
have been paid and all defaults hereunder shall have been cured,
the Trustee shall surrender possession of the Mortgaged Property
to the Company.
SECTION 1524. Power of Sale; Suits for Enforcement.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and be
continuing, the Trustee, by such officers or agents as it shall
appoint, with or without entry, in its discretion may, subject to
the provisions of Section 812 and if and to the extent permitted
by law:
(a) sell, subject to any mandatory requirements of
applicable law, the Mortgaged Property as an entirety, or in
such parcels as the Holders of a majority in principal
amount of the Securities then Outstanding shall in writing
request, or in the absence of such request, as the Trustee
may determine, to the highest bidder at public auction at
such place and at such time (which sale may be adjourned by
the Trustee from time to time in its discretion by
announcement at the time and place fixed for such sale,
without further notice) and upon such terms as the Trustee
may fix and briefly specify in a notice of sale to be
published once in each week for four successive weeks prior
to such sale in an Authorized Publication in each Place of
Payment for the Securities of each series; or
(b) proceed to protect and enforce its rights and the
rights of the Holders of Securities under this Indenture by
sale pursuant to judicial proceedings or by a suit, action
or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement
contained in this Indenture or in aid of the execution of
any power granted in this Indenture or for the foreclosure
of this Indenture or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce
any of the rights of the Trustee or the Holders of
Securities.
SECTION 1525. Incidents of Sale.
In addition to those provisions contemplated by Article
Eight, upon any sale of any of the Mortgaged Property, whether
made under the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal amount (or, if any of the Securities
are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms
thereof as contemplated by Section 301) of all Outstanding
Securities, if not previously due, shall at once become and
be immediately due and payable, together with premium, if
any, and accrued interest, if any, thereon;
(b) any Holder or Holders of Securities or the Trustee
may bid for and purchase the property offered for sale, and
upon compliance with the terms of sale may hold, retain and
possess and dispose of such property, without further
accountability, and may, in paying the purchase money
therefor, deliver any Outstanding Securities or claims for
interest thereon in lieu of cash to the amount which shall,
upon distribution of the net proceeds of such sale, be
payable thereon, and such Securities, in case the amounts so
payable thereon shall be less than the amount due thereon,
shall be returned to the Holders thereof after being
appropriately stamped to show partial payment;
(c) the Trustee may make and deliver to the purchaser
or purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) the Trustee is hereby irrevocably appointed the
true and lawful attorney of the Company, in its name and
stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property so
sold; and for that purpose it may execute all necessary
deeds, bills of sale and instruments of assignment and
transfer, and may substitute one or more persons, firms or
corporations with like power, the Company hereby ratifying
and confirming all that its said attorney or such substitute
or substitutes shall lawfully do by virtue hereof; but, if
so requested by the Trustee or by any purchaser, the Company
shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser
or purchasers all proper deeds, bills of sale, instruments
of assignment and transfer and releases as may be designated
in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of the
Company of, in and to the property so sold shall be divested
and such sale shall be a perpetual bar both at law and in
equity against the Company, its successors and assigns, and
against any and all persons claiming or who may claim the
property sold or any part thereof from, through or under the
Company; and
(f) the receipt of the Trustee or of the officer
making such sale shall be a sufficient discharge to the
purchaser or purchasers at such sale for his or their
purchase money and such purchaser or purchasers and his or
their assigns or personal representatives shall not, after
paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or
be in anywise answerable for any loss, misapplication or non-
application thereof.
SECTION 1526. Receiver.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and, during the
continuance thereof, the Trustee shall have commenced judicial
proceedings to enforce any right under this Indenture, the
Trustee shall, to the extent permitted by law, be entitled, as
against the Company, without notice or demand and without regard
to the adequacy of the security for the Securities or the
solvency of the Company, to the appointment of a receiver of the
Mortgaged Property.
SECTION 1527. Suits for Enforcement by Trustee.
In addition to those provisions contemplated by Article
Eight, the Trustee shall, to the extent permitted by law, be
entitled to sue and recover judgment as aforesaid either before,
during or after the pendency of any proceedings for the
enforcement of the Lien of this Indenture, and in case of a sale
of the Mortgaged Property or any part thereof and the application
of the proceeds of sale as aforesaid, the Trustee, in its own
name and as trustee of an express trust, shall be entitled to
enforce payment of, and to receive, all amounts then remaining
due and unpaid upon the Securities then Outstanding for
principal, premium, if any, and interest, if any, for the benefit
of the Holders thereof, and shall be entitled to recover judgment
for any portion of the same remaining unpaid, with interest as
aforesaid. No recovery of any such judgment by the Trustee and
no levy of any execution upon any such judgment upon any of the
Mortgaged Property or any other property of the Company shall
affect or impair the Lien of this Indenture upon the Mortgaged
Property or any part thereof or any rights, powers or remedies of
the Trustee hereunder, or any rights, powers or remedies of the
Holders of the Securities.
SECTION 1528. Application of Money Collected.
So long as this Article remains in effect, this Section
will replace Section 806. Any money collected by the Trustee
pursuant to this Article, including any rents, profits, revenues
and other income collected pursuant to Section 1523 (after the
deductions therein provided) and any proceeds of any sale (after
deducting the costs and expenses of such sale, including a
reasonable compensation to the Trustee, its agents and counsel,
and any taxes, assessments or Liens prior to the Lien of this
Indenture, except any thereof subject to which such sale shall
have been made), whether made under any power of sale herein
granted or pursuant to judicial proceedings, and any money
collected by the Trustee under Sections 1508 and 1517, together
with, in the case of an entry or sale or as otherwise provided
herein, any other sums then held by the Trustee as part of the
Mortgaged Property, shall be applied in the following order, to
the extent permitted by law, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or premium, if any, or interest, if any, upon
presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all undeducted amounts due
the Trustee under Section 907;
Second: To the payment of the whole amount then due
and unpaid upon the Outstanding Securities for principal and
premium, if any, and interest, if any, in respect of which
or for the benefit of which such money has been collected;
and in case such proceeds shall be insufficient to pay in
full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and
interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment
of premium, if any, and, if so specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid,
all to the extent permitted by applicable law; provided,
however, that any money collected by the Trustee pursuant to
Sections 1508 and 1517 in respect of interest and Section
1523 shall first be applied to the payment of interest
accrued on the principal of Outstanding Securities; and
Third: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 1529. Rights and Remedies - Additional Provision.
In addition to those provisions contemplated by Article
Eight, anything in Article Eight to the contrary notwithstanding,
the availability of the remedies set forth therein (on an
individual or cumulative basis) and the procedures set forth
therein relating to the exercise thereof shall be subject to (a)
the law (including, for purposes of this paragraph, general
principles of equity) of any jurisdiction wherein the Mortgaged
Property or any part thereof is located to the extent that such
law is mandatorily applicable and (b) the rights of the holder of
any Lien prior to the Lien of this Indenture, and, if and to the
extent that any provision of Article Eight conflicts with any
provision of such applicable law and/or with the rights of the
holder of any such prior Lien, such provision of law and/or the
rights of such holder shall control.
SECTION 1530. Control by Holders of Securities.
So long as this Article remains in effect, this Section
will replace Section 812. If an Event of Default shall have
occurred and be continuing, the Holders of a majority in
principal amount of the Securities then 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, however,
that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 1531. Waiver of Past Defaults.
So long as this Article remains in effect, this Section
will replace Section 813. Before any sale of any of the
Mortgaged Property and before a judgment or decree for payment of
the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Securities then
Outstanding may on behalf of the Holders of all the Securities
then Outstanding waive any past default hereunder and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security Outstanding, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of any
series or Tranche affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 1532. Additional Supplemental Indentures Without Consent
of Holders.
In addition to those provisions contemplated by
Section 1201, without the consent of any Holders, the Company and
the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a) to correct or amplify the description of any
property at any time subject to the Lien of this Indenture;
or better to assure, convey and confirm unto the Trustee any
property subject or required to be subjected to the Lien of
this Indenture; or to subject to the Lien of this Indenture
additional property (including property of Persons other
than the Company); or
(b) to exclude from the Lien of this Indenture any
kind of character of property, provided, that any Mortgaged
Property of such kind or character shall have been released
from the Lien of this Indenture or shall be subject to a
release application to the Trustee; or
(c) to amend and restate this Indenture, as originally
executed and delivered and as it may have been subsequently
amended, in its entirety to read substantially as this
Indenture with the deletion of the Granting Clauses, this
Article Fifteen and all references to "Mortgaged Property"
and the "Lien" of the Indenture.
Prior to the execution and delivery by the Trustee of a
supplemental indenture described in clause (c) above, the Company
shall deliver to the Trustee:
(i) a Company Order requesting execution and
delivery by the Trustee of such supplemental indenture;
(ii) an Officer's Certificate stating that:
(x) to the knowledge of
the signer, no Event of Default has
occurred or is continuing; and
(y) (i) the Company's
Charter has been duly amended to
eliminate the restrictions on the
issuance of unsecured indebtedness by
the Company contained in the Charter; or
(ii) all of the preferred securities
which have the benefit of such
restrictions have been paid, retired or
redeemed; or (iii) holders of such
preferred securities consent to amend
the Charter for the purpose of
eliminating such restrictions.
Upon the execution and delivery of a supplemental
indenture described in clause (c) above, (a) the Lien of this
Indenture shall be deemed to have been satisfied and discharged,
(b) the Trustee shall assign, transfer and otherwise turn over to
the Company the Mortgaged Property (other than money and Eligible
Obligations held by the Trustee pursuant to Section 703), (c) the
Trustee shall execute and deliver to the Company such deeds and
other instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence such
satisfaction, discharge, assignment and transfer and (d) the
Company shall, as promptly as practicable, give notice to all
Holders of such satisfaction and discharge in the same manner as
notice of redemption.
SECTION 1533. Additional Supplemental Indenture Restriction
Requiring the Consent of Holders.
In addition to those provisions contemplated by
Section 1202, no supplemental indenture shall (except by virtue
of a supplemental indenture described in clause (b) in
Section 1532) terminate the Lien of this Indenture on all or
substantially all of the Mortgaged Property or deprive the
Holders of the benefit of the Lien of this Indenture, without, in
any such case, the consent of the Holders of all Securities then
Outstanding.
SECTION 1534. Satisfaction and Discharge of Indenture.
Upon satisfaction and discharge of this Indenture as
provided in Section 702, the Trustee shall release, quitclaim and
otherwise turn over to the Company the Mortgaged Property (other
than money and Eligible Obligations held by the Trustee pursuant
to Section 703) and shall execute and deliver to the Company such
deeds and other instruments as, in the judgment of the Company,
shall be necessary, desirable or appropriate to effect or
evidence such release and quitclaim and the satisfaction and
discharge of this Indenture.
SECTION 1535. Company may Consolidate, etc., Only on Certain
Terms.
So long as this Article remains in effect, Sections
1535, 1536, 1537, 1538 and 1539 will replace the provisions of
Article Eleven. The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise transfer or
lease, subject to the Lien of this Indenture, the Mortgaged
Property as or substantially as an entirety to any Person,
unless:
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or other transfer, or which leases,
the Mortgaged Property as or substantially as an entirety
shall be a corporation organized and existing under the laws
of the United States, any State or Territory thereof or the
District of Columbia (such corporation being hereinafter
sometimes called the "Successor Corporation") and shall
execute and deliver to the Trustee an indenture supplemental
hereto, in form recordable and satisfactory to the Trustee,
which:
(i) in the case of a consolidation, merger,
conveyance or other transfer, or in the case of a lease
if the term thereof extends beyond the last Stated
Maturity of the Securities then Outstanding, contains
an assumption by the Successor Corporation of the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all the Securities
then Outstanding and the performance and observance of
every covenant and condition of this Indenture to be
performed or observed by the Company, and
(ii) in the case of a consolidation, merger,
conveyance or other transfer, contains a grant,
conveyance, transfer and mortgage by the Successor
Corporation, of the same tenor of the Granting Clauses
herein,
(A) confirming the Lien of this
Indenture on the Mortgaged Property (as
constituted immediately prior to the time such
transaction became effective) and subjecting to
the Lien of this Indenture all property, real,
personal and mixed, thereafter acquired by the
Successor Corporation which shall constitute an
improvement, extension or addition to the
Mortgaged Property (as so constituted) or a
renewal, replacement or substitution of or for any
part thereof, and, at the election of the
Successor Corporation,
(B) subjecting to the Lien of this
Indenture such property, real, personal or mixed,
in addition to the property described in subclause
(A) above, then owned or thereafter acquired by
the Successor Corporation as the Successor
Corporation shall, in its sole discretion, specify
or describe therein,
and the Lien confirmed or created by such grant,
conveyance, transfer and mortgage shall have force,
effect and standing similar to those which the Lien of
this Indenture would have had if the Company had not
been a party to such consolidation, merger, conveyance
or other transfer or lease and had itself, after the
time such transaction became effective, purchased,
constructed or otherwise acquired the property subject
to such grant, conveyance, transfer and mortgage;
(b) in the case of a lease, such lease shall be made
expressly subject to termination by the Company or by the
Trustee at any time during the continuance of an Event of
Default, and also by the purchaser of the property so leased
at any sale thereof hereunder, whether such sale be made
under the power of sale hereby conferred or pursuant to
judicial proceedings; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each of
which shall state that such consolidation, merger,
conveyance or other transfer or lease, and such supplemental
indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with.
As used in Sections 1535, 1537 and in Section 1520(d),
the terms "improvement", "extension" and "addition" shall be
limited to (a) with respect to real property subject to the Lien
of this Indenture, any item of personal property which has been
so affixed or attached to such real property as to be regarded a
part of such real property under applicable law and (b) with
respect to personal property subject to the Lien of this
Indenture, any improvement, extension or addition to such
personal property which (i) is made to maintain, renew, repair or
improve the function of such personal property and (ii) is
physically installed in or affixed to such personal property.
SECTION 1536. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance or
other transfer, subject to the Lien of this Indenture, of the
Mortgaged Property as or substantially as an entirety in
accordance with Section 1535, the Successor Corporation shall
succeed to, and be substituted for, and may exercise every power
and right of, the Company under this Indenture with the same
effect as if such Successor Corporation had been named as the
"Company" herein.
All Securities so executed by the Successor
Corporation, and authenticated and delivered by the Trustee,
shall in all respects be entitled to the benefit of the Lien of
this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation,
merger, conveyance or other transfer became effective.
SECTION 1537. Extent of Lien Hereof on Property of Successor
Corporation.
Unless, in the case of a consolidation, merger,
conveyance or other transfer contemplated by Section 1535, the
indenture supplemental hereto contemplated in clause (b)(ii) in
Section 1535, or any other indenture, contains a grant,
conveyance, transfer and mortgage by the Successor Corporation as
described in subclause (B) thereof, neither this Indenture nor
such supplemental indenture shall become or be, or be required to
become or be, a Lien upon any of the properties then owned or
thereafter acquired by the Successor Corporation except
properties acquired from the Company in or as a result of such
transaction and improvements, extensions and additions to such
properties and renewals, replacements and substitutions of or for
any part or parts thereof.
SECTION 1538. Release of Company upon Conveyance or Other
Transfer.
In the case of a conveyance or other transfer to any
Person or Persons as contemplated in Section 1535, upon the
satisfaction of all the conditions specified in Section 1535 the
Company (such term being used in this Section without giving
effect to such transaction) shall be released and discharged from
all obligations and covenants under this Indenture and on and
under all Securities then Outstanding unless the Company shall
have delivered to the Trustee an instrument in which it shall
waive such release and discharge.
SECTION 1539. Merger into Company; Extent of Lien Hereof.
(a) Nothing in this Indenture shall be deemed to
prevent or restrict any consolidation or merger after the
consummation of which the Company would be the surviving or
resulting corporation or any conveyance or other transfer or
lease, subject to the Lien of this Indenture, of any part of the
Mortgaged Property which does not constitute the entirety, or
substantially the entirety, thereof.
(b) Unless, in the case of a consolidation or merger
described in subsection (a) of this Section, an indenture
supplemental hereto shall otherwise provide, this Indenture shall
not become or be, or be required to become or be, a Lien upon any
of the properties acquired by the Company in or as a result of
such transaction or any improvements, extensions or additions to
such properties or any renewals, replacements or substitutions of
or for any part or parts thereof.
_________________________
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
LOUISIANA POWER & LIGHT COMPANY
By:_________________________________
[SEAL]
ATTEST:
_______________________
CHEMICAL BANK, Trustee
By:_________________________________
[SEAL]
ATTEST:
_______________________
l
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is the
_________________________ of Louisiana Power & Light Company, one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____________, ____, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is a _________________ of
Chemical Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
EXHIBIT A
[All real property subject to the lien of the Mortgage as of the
date hereof and all personal property and fixtures included on the
Company's books as electric utility plant]
Excepted Property
Expressly excepting and excluding, however, from
the Lien of this Indenture all right, title and
interest of the Company in and to the following
property, whether now owned or hereafter acquired
(herein sometimes called "Excepted Property"):
(a) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests
in general or limited partnerships, bonds, notes, evidences
of indebtedness and other securities not hereafter paid or
delivered to, deposited with or held by the Trustee
hereunder or required so to be;
(b) all contracts, leases, operating agreements, and
other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute
securities, in which case they are separately excepted from
the Lien of this Indenture under clause (a) above); all
revenues, income and earnings, all accounts, accounts
receivable and unbilled revenues, and all rents, tolls,
issues, product and profits, claims, credits, demands and
judgments; all governmental and other licenses, permits,
franchises, consents and allowances; all patents, patent
licenses and other patent rights, patent applications, trade
names, trademarks, copyrights, claims, credits, chooses in
action and other intangible property and general intangibles
including, but not limited to, computer software;
(c) all automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable
equipment; all rolling stock, rail cars and other railroad
equipment; all vessels, boats, barges and other marine
equipment; all airplanes, helicopters, aircraft engines and
other flight equipment; all parts, accessories and supplies
used in connection with any of the foregoing; and all
personal property of such character that the perfection of a
security interest therein or other Lien thereon is not
governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;
(d) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the
ordinary course of business; all materials, supplies,
inventory and other items of personal property which are
consumable (otherwise than by ordinary wear and tear) in
their use in the operation of the Mortgaged Property; all
fuel, including nuclear fuel, whether or not any such fuel
is in a form consumable in the operation of the Mortgaged
Property, including separate components of any fuel in the
forms in which such components exist at any time before,
during or after the period of the use thereof as fuel; all
hand and other portable tools and equipment; all furniture
and furnishings; and computers and data processing, data
storage, data transmission, telecommunications and other
facilities, equipment and apparatus, which, in any case, are
used primarily for administrative or clerical purposes or
are otherwise not necessary for the operation or maintenance
of the facilities, machinery, equipment or fixtures;
(e) all coal, ore, gas, oil and other minerals and all
timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have
been mined or extracted or otherwise separated from the
land; and all electric energy, gas (natural or artificial),
steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the
Company;
(f) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment
or apparatus, in any case used or to be used primarily for
the production or gathering of natural gas; and
(g) all leasehold interests held by the Company as
lessee.
provided, however, that (x) if, at any time after the
occurrence of an Event of Default, the Trustee, or any
separate trustee or co-trustee appointed under Section
914 or any receiver, shall have entered into possession
of all or substantially all of the Mortgaged Property,
all the Excepted Property described or referred to in
the foregoing clauses (b), (c) and (d), then owned or
held or thereafter acquired by the Company, to the
extent that the same is used in connection with, or
otherwise relates or is attributable to, the Mortgaged
Property, shall immediately, and, in the case of any
Excepted Property described or referred to in clause
(f), to the extent that the same is used in connection
with, or otherwise relates or is attributable to, the
Mortgaged Property, upon demand of the Trustee or such
other trustee or receiver, become subject to the Lien
of this Indenture to the extent not prohibited by law
or by the terms of any other Lien on such Excepted
Property, and the Trustee or such other trustee or
receiver may, to the extent not prohibited by law or by
the terms of any such other Lien (and subject to the
rights of the holders of all such other Liens), at the
same time likewise take possession thereof, and (y)
whenever all Events of Default shall have been cured
and the possession of all or substantially all of the
Mortgaged Property shall have been restored to the
Company, such Excepted Property shall again be excepted
and excluded from the Lien hereof to the extent set
forth above; it being understood that the Company may,
however, subject to the Lien of this Indenture any
any Excepted Property, whereupon the same shall cease
to be Excepted Property.
EXHIBIT B
The amendment of clause (c) of subdivision (4) of Section 59
of the Mortgage to read substantially as follows:
(c) the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 26 or 10/6
of the principal amount of each bond or fraction of bond to
the authentication and delivery of which the Company shall be
entitled under the provisions of Section 29 hereof, by virtue
of compliance with all applicable provisions of said Section
26 or Section 29, as the case may be (except as hereinafter in
this Section otherwise provided) the application for such
release shall operate as a waiver by the Company of such right
to the authentication and delivery of each such bond or
fraction thereof on the basis of which right such property is
released and to such extent no such bond or fraction thereof
may thereafter be authenticated and delivered hereunder, and
any such bonds or Qualified Lien Bonds which have been made
the basis of any such right to the authentication and delivery
of bond(s) or fraction of a bond so waived shall be deemed to
have been made the basis of the release of such property;
(a) The amendment of Section 60 of the Mortgage by
inserting "(I)" before the word "Unless" in the first line
thereof, and by adding a subsection (II) at the end of Section 60
to read substantially as follows:
(II) Unless the Company is in default in the
payment of the interest on any bonds then Outstanding
hereunder or one or more of the Defaults defined in Section 65
hereof shall have occurred and be continuing, the Company may
obtain the release of any of the Mortgaged and Pledged
Property that is not Funded Property, except cash then held by
the Corporate Trustee (provided, however, that Qualified Lien
Bonds deposited with the Corporate Trustee shall not be
released or surrendered except as provided in Article IX
hereof and obligations secured by purchase money mortgage
deposited with the Corporate Trustee shall not be released
except as provided in Section 61 hereof), and the Corporate
Trustee shall release all its right, title and interest in and
to the same from the Lien hereof upon application of the
Company and receipt by the Corporate Trustee of the following
(in lieu of complying with the requirements of Section 59
hereof):
(1) an Officers' Certificate complying
with the requirements of Section 121 hereof and describing in
reasonable detail the property to be released and requesting
such release, and stating:
(a) that the Company is not in
default in the payment of interest on any bonds then
Outstanding hereunder and that no Default has occurred and is
continuing;
(b) that the Company has
decided to release from the Lien hereof the property to be
released;
(c) that the property to be
released is not Funded Property;
(d) that (except in any case
where a governmental body or agency has exercised a right to
order the Company to divest itself of such property) such
release is in the opinion of the signers desirable in the
conduct of the business of the Company; and
(e) the amount of cash and/or
principal amount of obligations secured by purchase money
mortgage received or to be received for any portion of said
property sold to any Federal, State, County, Municipal or
other governmental bodies or agencies or public or semi-public
corporations, districts, or authorities;
(2) an Engineer's Certificate, made and
dated not more than ninety (90) days prior to the date of such
application, stating:
(a) the fair value, in the
opinion of the signers, of the property (or securities) to be
released;
(b) that in the opinion of the
signers such release will not impair the security under this
Indenture in contravention of the provisions hereof; and
(c) that the Company has
Property Additions constituting property that is not Funded
Property (not including the Property Additions then being
released) of a Cost or fair value to the Company (whichever is
less) of not less than one dollar ($1) (after making any
deductions and any additions pursuant to the provisions of
Section 4 hereof) after deducting the Cost of the property
then being released;
(3) an Opinion of Counsel complying with
the requirements of Section 121 hereof and stating that all
conditions precedent provided for in this Indenture relating
to the release of the property in question have been complied
with; and
(4) in case the Corporate Trustee is
requested to release any franchise, an Opinion of Counsel
complying with the requirements of Section 121 hereof and
stating that in his or their opinion such release will not
impair to any material extent the right of the Company to
operate any of its remaining properties.
(b) The amendment of clause (a) of subdivision (3)
of Section 59 to read substantially as follows:
(a) that the Company has decided to release
from the Lien hereof the property to be released;
(c) The amendment of clause (b) of subdivision (4)
of Section 59 to delete the words "that no such application
for release may be based in whole or in part upon Property
Additions acquired, made or constructed more than five years
prior to the last day of the calendar month immediately
preceding the date of such application, and provided,
further,"
The amendment of clause (5) on page 120 of the Mortgage to
add after the word "royalties;" substantially the following text:
any property (other than cash [, Class A Bonds] or
purchase money mortgage obligations delivered to the Trustee
hereunder), whether real, personal or mixed, of a character
which does not come within the definition of Property
Additions contained in Section 4 hereof without regard to
whether such property was acquired by the Company before or
after June 30, 1994 or actually constructed or created before
or after such date; any property released from the Lien hereof
pursuant to the provisions hereof without regard to whether
such property is still owned by the Company;
The amendment of Article XIX of the Mortgage to read
substantially as follows:
ARTICLE XIX.
Meetings and Consents of
Bondholders.
SECTION 107.
Modifications and alterations of this Indenture and/or of any
indenture supplemental hereto and/or of the rights and
obligations of the Company and/or of the rights of the holders
of bonds and coupons issued hereunder may be made as provided
in this Article XIX.
SECTION 108. The Corporate Trustee may at any
time call a meeting of the holders of bonds of one or more, or
all, series and it shall call such a meeting on written
request of the Company, given pursuant to a Resolution of its
Board of Directors, or a resolution of the holders of a
majority or more in principal amount of the bonds of such
series Outstanding hereunder, considered as one class, at the
time of such request. In the event of the Corporate Trustee's
failing for ten (10) days to call a meeting after being
thereunto requested by the Company or bondholders as above set
forth, holders of Outstanding bonds in the amount above
specified in this Section or the Company, pursuant to
Resolution of its Board of Directors, may call such meeting.
Every such meeting called by and at the instance of the
Corporate Trustee shall be held in the Borough of Manhattan,
The City of New York, or with the written approval of the
Company, at any other place in the United States of America,
and written notice thereof, stating the place and time thereof
and in general terms the business to be submitted, shall be
mailed by the Corporate Trustee not less than thirty (30) days
before such meeting (a) to each registered holder of bonds of
the series in respect of which such meeting is being called,
then Outstanding hereunder addressed to him at his address
appearing on the registry books, (b) to all other holders of
bonds of such series then Outstanding hereunder the names and
addresses of whom are preserved by the Corporate Trustee as
required by the provisions of Section 43 hereof and (c) to the
Company addressed to it at _____________________ (or at such
other address as may be designated by the Company from time to
time), and, if any bonds of such series shall not be in fully
registered form, shall be published by the Corporate Trustee
at least once a week for four (4) successive calendar weeks
immediately preceding the meeting, upon any secular day of
each such calendar week, which need not be the same day of
each week, in a Daily Newspaper, printed in the English
language, and published and of general circulation in The City
of New York; provided, however, that, if such notice by
publication shall have been given, the mailing of such notice
to any bondholders shall in no case be a condition precedent
to the validity of any action taken at such meeting. Any
meeting of holders of the bonds of one or more, or all, series
shall be valid without notice if the holders of all bonds of
such series then Outstanding hereunder are present in person
or by proxy and if the Company and the Corporate Trustee are
present by duly authorized representatives, or if notice is
waived in writing before or after the meeting by the Company,
the holders of all bonds of such series Outstanding hereunder
and by the Corporate Trustee, or by such of them as are not
present in person or by proxy.
SECTION 109. Officers and nominees of the
Corporate Trustee and of the Company and of the Co-Trustee or
their or its nominees may attend such meeting, but shall not
as such be entitled to vote thereat. Attendance by
bondholders may be in person or by proxy. In order that the
holder of any bond payable to bearer and his proxy may attend
and vote without producing his bond, the Corporate Trustee,
with respect to any such meeting, may make and from time to
time vary such regulations as it shall think fit for deposit
of bonds with, (i) any bank or trust or insurance company, or
(ii) any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization, or similar
fund or funds, or (iii) the United State of America, any
Territory thereof, the District of Columbia, any State of the
United States, any municipality in any State of the United
States or any public instrumentality of the United States, any
State or Territory, or (iv) any other person or corporation
satisfactory to the Corporate Trustee, and for the issue to
the persons depositing the same of certificates by such
depositaries entitling the holders thereof to be present and
vote at any such meeting and to appoint proxies to represent
them and vote for them at any such meeting in the same way as
if the persons so present and voting, either personally or by
proxy, were the actual bearers of the bonds in respect of
which such certificates shall have been issued and any
regulations so made shall be binding and effective. A
bondholder in any of the foregoing categories may sign such a
certificate in his own behalf. In lieu of or in addition to
providing for such deposit, the Corporate Trustee may, in its
discretion, permit such institutions to issue certificates
stating that bonds were exhibited to them, which certificates
shall entitle the holders thereof to vote at any meeting only
if the bonds with respect to which they are issued are not
produced at the meeting by any other person and are not at the
time of the meeting registered in the name of any other
person. Each such certificate shall state the date on which
the bond or bonds in respect of which such certificate shall
have been issued were deposited with or exhibited to such
institution and the series, maturities and serial numbers of
such bonds. A bondholder in any of the foregoing categories
may sign such a certificate in his own behalf. In the event
that two or more such certificates shall be issued with
respect to any bond or bonds, the certificate bearing the
latest date shall be recognized and be deemed to supersede any
certificate or certificates previously issued with respect to
such bond or bonds. If any such meeting shall have been
called under the provisions of Section 108 hereof, by
bondholders or by the Company, and the Corporate Trustee shall
fail to make regulations as above authorized, then regulations
to like effect for such deposit, or exhibition of bonds and
the issue of certificates by (i) any bank or trust or
insurance company, or (ii) any trustee, secretary,
administrator or other proper officer of any pension, welfare,
hospitalization, or similar fund or funds, or (iii) by the
United States of America, any Territory thereof, the District
of Columbia, any State of the United States, any municipality
in any State of the United States or any public
instrumentality of the United States, any State or Territory
shall be similarly binding and effective for all purposes
hereof if adopted or approved by the bondholders calling such
meeting or by the Board of Directors of the Company, if such
meeting shall have been called by the Company, provided that
in either such case copies of such regulations shall be filed
with the Corporate Trustee. A bondholder in any of the
foregoing categories may sign such a certificate in his own
behalf.
SECTION 110. Subject to the restrictions
specified in Sections 109 and 113 hereof, any registered
holder of bonds Outstanding hereunder and any holder of a
certificate provided for in Section 109 hereof relating to
bonds Outstanding hereunder, in either case of the series in
respect of which a meeting shall have been called, shall be
entitled in person or by proxy to attend and vote at such
meeting as a holder of the bonds registered or certified in
the name of such holder without producing such bonds. All
others seeking to attend or vote at such meeting in person or
by proxy must, if required by any authorized representative of
the Corporate Trustee or the Company or by any other
bondholder, produce the bonds claimed to be owned or
represented at such meeting and every one seeking to attend or
vote shall, if required as aforesaid, produce such further
proof of bond ownership or personal identity as shall be
satisfactory to the authorized representative of the Corporate
Trustee, or if none be present then to the Inspectors of Votes
hereinafter provided for. Proxies shall be witnessed or in
the alternative may (a) have the signature guaranteed by a
bank or trust company or a registered dealer in securities,
(b) be acknowledged before a Notary Public or other officer
authorized to take acknowledgements, or (c) have their gen
uineness otherwise established to the satisfaction of the
Inspector of Votes. All proxies and certificates presented at
any meeting shall be delivered to said Inspectors of Votes and
filed with the Corporate Trustee.
SECTION 111. Persons nominated by the
Corporate Trustee if it is represented at the meeting shall
act as temporary Chairman and Secretary, respectively, of the
meeting, but if the Corporate Trustee shall not be represented
or shall fail to nominate such persons or if any person so
nominated shall not be present, the bondholders and proxies
present shall by a majority vote of bonds represented elect
another person or other persons from those present to act as
temporary Chairman and/or Secretary. A permanent Chairman and
a permanent Secretary of such meeting shall be elected from
those present by the bondholders and proxies present by a
majority vote of bonds represented. The Corporate Trustee, if
represented at the meeting, shall appoint two Inspectors of
Votes who shall decide as to the right of anyone to vote and
shall count all votes cast at such meeting, except votes on
the election of a Chairman and Secretary, both temporary and
permanent, as aforesaid, and who shall make and file with the
permanent Secretary of the meeting their verified written
report in duplicate of all such votes so cast at said meeting.
If the Corporate Trustee shall not be represented at the
meeting or shall fail to nominate such Inspectors of Votes or
if either Inspector of Votes fails to attend the meeting, the
vacancy shall be filled by appointment by the permanent
Chairman of the meeting.
SECTION 112. The holders of a majority in
aggregate principal amount of the bonds Outstanding hereunder
of the series with respect to which a meeting shall have been
called as hereinbefore provided, considered as one class,
shall constitute a quorum for a meeting of holders of bonds of
such series; and provided, further, that if any action is to
be taken at such meeting which this Indenture expressly
provides may be taken by the holders of a specified percentage
which is less than a majority in principal amount of the bonds
of such series Outstanding hereunder, considered as one class,
the holders of such specified percentage in principal amount
of the bonds of such series Outstanding hereunder, considered
as one class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
holders of bonds of such series, be dissolved. In any other
case the meeting may be adjourned for such period or periods
as may be determined by the chairman of the meeting prior to
the adjournment thereof.
SECTION 113. Any modification or alteration of
this Indenture and/or of any indenture supplemental hereto
and/or of the rights and obligations of the Company and/or the
rights of the holders of bonds and/or coupons issued hereunder
in any particular may be made at a meeting of bondholders duly
convened and held in accordance with the provisions of this
Article, but only by resolution duly adopted by the
affirmative vote of the holders of a majority in principal
amount of the bonds Outstanding hereunder, considered as one
class (or, if such modification or alteration shall directly
affect the holders of bonds of one or more, but less than all,
series then Outstanding hereunder, then the affirmative vote
only of the holders of a majority in aggregate principal
amount of the bonds of the series so directly affected then
Outstanding hereunder, considered as one class), when such
meeting is held, and in every case approved by Resolution of
the Board of Directors of the Company as hereinafter
specified; provided, however, that no such modification or
alteration shall, without the consent of the holder of any
bond issued hereunder affected thereby, permit (1) the
extension of the maturity of the principal of, or interest on,
such bonds, or (2) the reduction in such principal or the rate
of interest thereon or any other modification in the terms of
payment of such principal or interest, or (3) the creation of
any lien ranking prior to, or on a parity with, the Lien of
this Indenture with respect to any of the Mortgaged and
Pledged Property, or (4) the deprivation of any non-assenting
bondholder of a lien upon the Mortgaged and Pledged Property
for the security of his bonds (subject only to Excepted Encum
brances) or (5) the reduction of the percentage required by
the provisions of this Section for the taking of any action
under this Section with respect to any bond Outstanding
hereunder. For all purposes of this Article, the Trustees
shall be entitled to rely upon an Opinion of Counsel with
respect to the extent, if any, as to which any action taken at
such meeting affects the rights under this Indenture or under
any indenture supplemental hereto of any holders of bonds then
Outstanding hereunder.
Bonds owned and/or held by and/or for account
of and/or for the benefit or interest of the Company, or any
corporation of which the Company shall own twenty-five per
centum (25%) or more of the outstanding voting stock, shall
not be deemed Outstanding for the purpose of any vote or of
any calculation of bonds Outstanding in Article XVI hereof or
in this Article XVIII or for the purpose of the quorum
provided for in Section 112 of this Article; provided,
however, that bonds so owned or held which have been pledged
in good faith may be regarded as Outstanding for purposes of
this paragraph if the pledgee establishes to the satisfaction
of the Corporate Trustee the pledgee's right to vote or give
consents with respect to such bonds and that the pledgee is
not the Company or a corporation of which the Company shall
own twenty-give per centum (25%) or more of the outstanding
voting stock. For all purposes of this Indenture, the Cor
porate Trustee, the Chairman and Secretary of any meeting held
pursuant to the provisions of this Article XIX and the
Inspectors of Votes at any such meeting shall (unless the fact
is challenged at such meeting by any holder of bonds
Outstanding hereunder entitled to vote at such meeting and a
contrary fact is established) be entitled conclusively to rely
upon a notification in writing by the Company, specifying the
principal amount of bonds Outstanding hereunder owned by or
held by or for the account of or for the benefit or interest
of the Company or any corporation of which the Company shall
own twenty-five per centum (25%) or more of the outstanding
voting stock, or stating that no such bonds are so owned or
held. In case the meeting shall have been called otherwise
than on the written request of the Company, the Corporate
Trustee shall be entitled conclusively to assume that none of
the bonds Outstanding hereunder is so owned or held unless a
notification by the Company is furnished as in this paragraph
provided or unless the fact is challenged at such meeting by
any holder of bonds Outstanding hereunder and a contrary fact
is established.
SECTION 114. A record in duplicate of the
proceedings of each meeting of bondholders shall be prepared
by the permanent Secretary of the meeting and shall have
attached thereto the original reports of the Inspectors of
Votes, and affidavits by one or more persons having knowledge
of the facts showing a copy of the notice of the meeting, and
showing that said notice was mailed and published as provided
in Section 108 hereof. Such record shall be signed and
verified by the affidavit of the permanent Chairman and the
permanent Secretary of the meeting, and one duplicate thereof
shall be delivered to the Company and the other to the
Corporate Trustee for preservation by the Corporate Trustee.
Any record so signed and verified shall be proof of the
matters therein stated, and if such record shall also be
signed and verified by the affidavit of a duly authorized
representative of the Corporate Trustee, such meeting shall be
deemed conclusively to have been duly convened and held and
such record shall be conclusive, and any resolution or
proceeding stated in such record to have been adopted or
taken, shall be deemed conclusively to have been duly adopted
or taken by such meeting. A true copy of any resolution
adopted by such meeting shall be mailed by the Corporate
Trustee to all holders of bonds Outstanding hereunder, the
names and addresses of whom are then preserved by the
Corporate Trustee pursuant to the provisions of Section 43
hereof, and proof of such mailing by the affidavit of some
person having knowledge of the fact shall be filed with the
Corporate Trustee, but failure to mail copies of such
resolution as aforesaid shall not affect the validity thereof.
No such resolution shall be binding until and unless such
resolution is approved by Resolution of the Board of Directors
of the Company, of which such Resolution of approval, if any,
it shall be the duty of the Company to file a copy certified
by the Secretary or an Assistant Secretary of the Company with
the Corporate Trustee, but if such Resolution of the Board of
Directors of the Company is adopted and a certified copy
thereof is filed with the Corporate Trustee, the resolution so
adopted by such meeting shall (to the extent permitted by law)
be deemed conclusively to be binding upon the Company, the
Trustees and the holders of all bonds and coupons issued
hereunder, at the expiration of sixty (60) days after such
filing, except in the event of a final decree of a court of
competent jurisdiction setting aside such resolution, or
annulling the action taken thereby in a legal action or
equitable proceeding for such purposes commenced within such
sixty (60) day period; provided, however, that no such
resolution of the bondholders, or of the Company, shall in any
manner be so construed as to change or modify any of the
rights, immunities, or obligations of the Trustees or either
of them without their, its or his written assent thereto.
SECTION 115. Bonds authenticated and delivered
after the date of any bondholders' meeting may bear a notation
in form approved by the Corporate Trustee as to the action
taken at meetings of bondholders theretofore held, and upon
demand of the holder of any bond Outstanding at the date of
any such meeting and presentation of his bond for the purpose
at the principal office of the Corporate Trustee, the Company
shall cause suitable notation to be made on such bond by
endorsement or otherwise as to any action taken at any meeting
of bondholders theretofore held. If the Company or the
Corporate Trustee shall so determine, new bonds so modified as
in the opinion of the Corporate Trustee and the Board of
Directors of the Company to conform to such bondholders'
resolution shall be prepared, authenticated and delivered, and
upon demand of the holder of any bond then Outstanding and
affected thereby shall be exchanged without cost to such
bondholders for bonds then Outstanding hereunder upon
surrender of such bonds with all unmatured coupons, if any,
appertaining thereto. The Company or the Corporate Trustee
may require bonds Outstanding to be presented for notation or
exchange as aforesaid if either shall see fit to do so.
Instruments supplemental to this Indenture embodying any
modification or alteration of this Indenture or of any
indenture supplemental hereto made at any bondholders' meeting
and approved by Resolution of the Board of Directors of the
Company, as aforesaid, may be executed by the Trustees and the
Company and upon demand of the Corporate Trustee, or if so
specified in any resolution adopted by any such bondholders'
meeting, shall be executed by the Company and the Trustees.
Any instrument supplemental to this Indenture
executed pursuant to the provisions of this Section, shall
comply with all applicable provisions of the Trust Indenture
Act of 1939 as in force on the date of the execution of such
supplemental indenture.
SECTION 116. (A) Anything in this Article XIX
contained to the contrary notwithstanding, the Corporate
Trustee shall receive the written consent (in any number of
instruments of similar tenor executed by bondholders or by
their attorneys appointed in writing) of the holders of a
majority in principal amount of the bonds Outstanding
hereunder, considered as one class (or, if any action proposed
to be taken shall directly affect the holders of bonds of one
or more, but less than all, series then Outstanding hereunder,
then the consent only of the holders of a majority in
aggregate principal amount of bonds of the series so directly
affected then Outstanding hereunder, considered as one class),
at the time the last such needed consent is delivered to the
Corporate Trustee, in lieu of the holding of a meeting
pursuant to this Article XIX and in lieu of all action at such
a meeting and with the same force and effect as a resolution
duly adopted in accordance with the provisions of Section 113
hereof.
(B) Instruments of consent shall be witnessed
or in the alternative may (a) have the signature guaranteed by
a bank or trust company or a registered dealer in securities,
(b) be acknowledged before a Notary Public or other officer
authorized to take acknowledgments, or (c) have their
genuineness otherwise established to the satisfaction of the
Corporate Trustee.
The amount of bonds payable to bearer, and the
series and serial numbers thereof, held by a person executing
an instrument of consent (or whose attorney has executed an
instrument of consent in his behalf), and the date of his
holding the same, may be proved by exhibiting the bonds to and
obtaining a certificate executed by (i) any bank or trust or
insurance company organized under the laws of the United
States of America or of any State thereof, or (ii) any
trustee, secretary, administrator or other proper officer of
any pension, welfare, hospitalization or similar fund or
funds, or (iii) the United States of America, any Territory
thereof, the District of Columbia, any State of the United
States, any municipality in any State of the United States or
any public instrumentality of the United States, or of any
State or of any Territory, or (iv) any other person or
corporation satisfactory to the Corporate Trustee. A
bondholder in any of the foregoing categories may sign a
certificate in his own behalf.
Each such certificate shall be dated and shall
state in effect that as of the date thereof a coupon bond or
bonds bearing a specified serial number or numbers was
exhibited to the signer of such certificate. The holding by
the person named in any such certificate of any bonds speci
fied therein shall be presumed to continue unless (1) any
certificate bearing a later date issued in respect of the same
bond shall be produced, (2) the bond specified in such
certificate (or any bond or bonds issued in exchange or
substitution for such bond) shall be produced, or (3) the bond
specified in such certificate shall be registered as to
principal in the name of another holder or shall have been
surrendered in exchange or a fully registered bond registered
in the name of another holder. The Corporate Trustee may
nevertheless in its discretion require further proof in cases
where it deems further proof desirable. The ownership of
registered bonds shall be proved by the registry books.
(C) Until such time as the Corporate Trustee
shall receive the written consent of the necessary per centum
in principal amount of the bonds required by the provisions of
subsection (A) above for action contemplated by such consent,
any holder of a bond, the serial number of which is shown by
the evidence to be included in the bonds the holders of which
have consented to such action, may, by filing written notice
with the Corporate Trustee at its principal office and upon
proof of holding as provided in subsection (B) above, revoke
such consent so far as it concerns such bond. Except as
aforesaid, any such action taken by the holder of any bond
shall be conclusive and binding upon such holder and upon all
future holders of such bond (and any bond issued in lieu
thereof or exchanged therefor), irrespective of whether or not
any notation of such consent is made upon such bond, and in
any event any action taken by the holders of the percentage in
aggregate principal amount of the bonds specified in
subsection (A) above in connection with such action shall be
conclusively binding upon the Company, the Corporate Trustee
and the holders of all the bonds.
The amendment of Section 5 to replace the first two
paragraphs thereof with three paragraphs reading substantially as
follows:
The term "Funded Property Certificate" shall
mean an Independent Engineer's Certificate delivered to the
Corporate Trustee, within ninety days after the date thereof,
(A) stating the aggregate principal amount
of bonds then Outstanding under this Indenture;
(B) stating the aggregate principal amount
of bonds which the Company is then entitled to have
authenticated and delivered by compliance with the provisions
of Section 29 hereof;
(C) stating an amount equal to 10/7 of the
sum of the amounts stated in clauses (A) and (B) above;
(D) describing all or any portion of the
Mortgaged and Pledged Property which, in the opinion of the
signers, has an aggregate Fair Value not less than the amount
stated in clause (C) above.
The term "Funded Property" shall mean:
(1) all Mortgaged and Pledged Property
described in the most recent Funded Property Certificate
delivered to the Corporate Trustee;
(2) all Property Additions to the extent
that the same shall have been made the basis of the
authentication and delivery of bonds under this Indenture
after the date of the most recent Funded Property Certificate
delivered to the Corporate Trustee;
(3) all Property Additions to the extent
that the same shall have been made the basis of the release of
property from the Lien of this Indenture after the date of the
most recent Funded Property Certificate delivered to the
Corporate Trustee, subject, however, to the provisions of
Section 59 hereof;
(4) all Property Additions to the extent
that the same shall have been substituted (otherwise than
under the release or cash withdrawal provisions hereof) for
Funded Property retired after the date of the most recent
Funded Property Certificate delivered to the Corporate
Trustee; and
(5) all Property Additions to the extent
that the same shall have been made the basis of the withdrawal
of any Funded Cash as hereinafter defined after the date of
the most recent Funded Property Certificate delivered to the
Corporate Trustee, except to the extent that any such Property
Additions shall no longer be deemed to be Funded Property in
accordance with the provisions of other Sections of this
Indenture.
In the event that in any certificate filed with
the Corporate Trustee in connection with any of the
transactions referred to in clauses (2), (3) and (5) of this
Section only a part of the Cost or fair value of the Property
Additions described in such certificate shall be required for
the purposes of such certificate, then such Property Additions
shall be deemed to be Funded Property only to the extent so
required for the purpose of such certificate.
Collateral Trust Provisions
(a) The amendment of Section 2 of the Mortgage to
add at the end of such Section ____ new paragraphs, reading
substantially as follows:
"Class A Bonds" means bonds or other
obligations now or hereafter issued and Outstanding under any
Class A Mortgage or Mortgages.
"Class A Mortgage" means each mortgage or deed
of trust or similar indenture, as amended and supplemented
from time to time, (i) to which any corporation that is
subsequently merged into or consolidated with the Company was
a party at the time of such merger or consolidation or (ii)(A)
which constitutes a Lien on property conveyed or otherwise
transferred to the Company and (B) the obligations of the
mortgagor under which have been duly assumed by the Company,
and, in the case of either (i) or (ii) above, which is
hereafter designated an additional Class A Mortgage in an
indenture supplemental hereto executed and delivered in
accordance with Section 136.
"Stated Maturity", when used with respect to
any obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or interest
is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase
or extension).
"Tranche" means a group of bonds which (a) are
of the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Outstanding", when used with respect to Class
A Bonds, has the meaning specified in the related Class A
Mortgage.
(b) The amendment of clause (c) in the last
paragraph of Section 5 to add substantially the following
text:
any cash received by the Trustee from the payment of
the principal of Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131;
(c) The amendment of clause (iii) of subparagraph
(B) of the first paragraph of Section 7 to read substantially
as follows:
(iii) all Qualified Lien Bonds
which will be Outstanding immediately after the authentication
of the bonds then applied for in pending applications,
including the application in connection with which such
certificate is made; all Class A Bonds Outstanding under Class
A Mortgages at the date of such certificate, except any
delivered to and held by the Trustee pursuant to Sections 130
and 131 and except any for the payment or redemption of which
the bonds applied for are to be issued; provided, however,
that, if the Outstanding Class A Bonds of any series bear
interest at a variable rate or rates, then the interest
requirement on the Class A Bonds of such series shall be
determined by reference to the rate or rates in effect on the
date next preceding the date of the initial authentication and
delivery of the bonds then applied for in the application in
connection with which the Net Earning Certificate is made; and
(d) The amendment of Section 36 of the Mortgage to
add the words "and the liens of Class A Mortgages" after the
words "other than Excepted Encumbrances" in such Section and
to add the words "(including, but not limited to the lien of
any Class A Mortgage)" after the words "any lien thereon at
the time of the acquisition thereof" in such Section.
(e) The amendment of the Mortgage to add a new
Article XXI to read substantially as follows:
ARTICLE XXI
Class A Bonds; Additional
Class A Mortgages;
Issuance of Bonds on the
Basis of Class A Bonds
Discharge of Class A
Mortgage
SECTION 130. Issuance of Bonds on the Basis of Class A Bonds.
(a) Bonds of any one
or more series may be authenticated and delivered on the basis
of, and in an aggregate principal amount not exceeding, the
aggregate principal amount of Class A Bonds delivered to the
Trustee for such purpose.
(b) Bonds of any
series shall be authenticated and delivered by the Trustee on
the basis of the delivery to the Trustee of Class A Bonds
which have not theretofore been made the basis of the
authentication and delivery of bonds hereunder, upon receipt
by the Trustee of:
(i) Class A
Bonds (A) maturing (or being subject to mandatory redemption)
on such dates and in such principal amounts that, at each
Stated Maturity of the bonds of such series (or the Tranche
thereof then to be authenticated and delivered), there shall
mature (or be redeemed) Class A Bonds equal in principal
amount to the bonds of such series or Tranche then to mature
and (B) containing, in addition to any mandatory redemption
provisions applicable to all Class A Bonds Outstanding under
the related Class A Mortgage and any mandatory redemption
provisions contained therein pursuant to clause (A) above,
mandatory redemption provisions correlative to the provisions,
if any, for the mandatory redemption (pursuant to a sinking
fund or otherwise) of the bonds of such series or Tranche or
for the redemption thereof at the option of the Holder; it
being expressly understood that such Class A Bonds (X) may,
but need not, bear interest, (Y) may, but need not, contain
provisions for the redemption thereof at the option of the
Company, 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 in accordance with Article XXI;
(ii) the documents with respect to the
bonds of such series specified in clauses (1), (2), (6), (8)
and (10) of Section 28; provided, however, that no Net
Earnings Certificate shall be required to be delivered if
there shall be delivered an Officers' Certificate to the
effect that such Class A Bonds have been authenticated and
delivered under the related Class A Mortgage on the basis of
retired Class A Bonds; and
(iii) an Opinion of Counsel to the
effect that:
(A) the form or forms of such
Class A Bonds have been duly authorized by the Company and
have been established in conformity with the provisions of the
related Class A Mortgage;
(B) the terms of such Class A
Bonds have been duly authorized by the Company and have been
established in conformity with the provisions of the related
Class A Mortgage; and
(C) (I) such Class A Bonds have
been duly authenticated and delivered by the trustee under the
related Class A Mortgage and (II) when the bonds to be
authenticated and delivered on the basis of the delivery to
the Trustee of such Class A Bonds shall have been
authenticated and delivered by the Trustee in accordance with
this Indenture and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, such Class A Bonds will constitute valid obli
gations of the Company, entitled to the benefit of the Lien of
such Class A Mortgage equally and ratably with all other Class
A Bonds then Outstanding under such Class A Mortgage.
No bonds shall be authenticated or delivered
under Section 29 hereof on the basis of any retired bonds
theretofore authenticated and delivered on the basis of Class
A Bonds pursuant to this Section until the Class A Mortgage
under which such Class A Bonds were delivered has been
discharged pursuant to the provisions thereof.
SECTION 131. Registration and Ownership of Class A Bonds.
Class A Bonds delivered to the Trustee pursuant
to Section 130 shall be registered in the name of the Trustee
or its nominee and shall be owned and held by the Trustee,
subject to the provisions of this Indenture, for the benefit
of all bonds from time to time Outstanding, and the Company
shall have no interest therein. The Trustee shall be entitled
to exercise all rights of securityholders under each Class A
Mortgage either in its discretion or as otherwise provided in
this Article or in Article XIII.
SECTION 132. Payments on Class A Bonds.
(a) Any payment by the Company of principal of
or premium or interest on any Class A Bonds delivered to and
held by the Trustee pursuant to Sections 130 and 131 shall be
applied by the Trustee to the payment of any principal,
premium or interest, as the case may be, in respect of the
bonds which is then due, and, to the extent of such
application, the obligation of the Company hereunder to make
such payment in respect of the bonds shall be deemed to have
been satisfied and discharged.
If, at the time of any such payment of
principal of Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131, there shall be no
principal then due in respect of the bonds, such payment in
respect of such Class A Bonds shall be deemed to constitute
Funded Cash and shall be held by the Trustee as part of the
Mortgaged and Pledged Property, to be withdrawn, used or
applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in Section 130; and
thereafter the bonds authenticated and delivered on the basis
of such Class A Bonds shall, to the extent of such payment of
principal, be deemed to have been authenticated and delivered
on the basis of the deposit of cash.
If, at the time of any such payment of premium
or interest on Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131, there shall be no
premium or interest, as the case may be, then due in respect
of the bonds, such payment in respect of such Class A Bonds
shall be remitted to the Company upon receipt by the Trustee
of a Company Order requesting the same, together with an
Officers' Certificate stating that no Default has occurred and
is continuing; provided, however, that, if a Default shall
have occurred and be continuing, such proceeds shall be held
as part of the Mortgaged Property until such Default shall
have been cured or waived.
(b) Any payment by the Company hereunder of
principal of or premium or interest on bonds which shall have
been authenticated and delivered upon the basis of the
delivery to the Trustee of Class A Bonds (other than by the
application of the proceeds of a payment in respect of such
Class A Bonds) shall, to the extent thereof, be deemed, for
all purposes of this Indenture, to satisfy and discharge the
obligation of the Company, if any, to make a payment of
principal, premium or interest, as the case may be, in respect
of such Class A Bonds which is then due.
(c) The Trustee hereby waives notice of any
redemption of Class A Bonds delivered to it pursuant to
Section 402.
SECTION 133. Surrender of Class A Bonds.
At the time any bonds which shall have been
authenticated and delivered on the basis of the delivery to
the Trustee of Class A Bonds cease to be Outstanding (other
than as a result of the application of the proceeds of the
payment or redemption of such Class A Bonds), the Trustee
shall surrender to, or upon the order of, the Company an equal
principal amount of such Class A Bonds.
SECTION 134. No Transfer of Class A Bonds.
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall not sell, assign or
otherwise transfer any Class A Bonds delivered to and held by
it pursuant to Sections 130 and 131 except to a successor
trustee under this Indenture and except as provided in Section
133. The Company may take such actions as it shall deem
necessary, desirable or appropriate to effect compliance with
such restrictions on transfer, including the placing of a
legend on each such Class A Bond and the issuance of stop-
transfer instructions to the trustee under the related Class A
Mortgage or any other transfer agent thereunder.
SECTION 135. Voting of Class A Bonds.
The Trustee shall, as the holder of Class A
Bonds delivered to and held by it pursuant to Sections 130 and
131, attend such meeting or meetings of bondholders under each
Class A Mortgage or, at its option, deliver its proxy in con
nection therewith, as relate to matters with respect to which
it, as such holder, is entitled to vote or consent. So long
as no Default hereunder shall have occurred and be continuing,
either at any such meeting or meetings, or otherwise when the
consent of the holders of the Class A Bonds Outstanding under
any Class A Mortgage is sought without a meeting, the Trustee
shall vote as holder of Class A Bonds delivered to and held by
it pursuant to Sections 130 and 131 which were delivered under
such Class A Mortgage, or shall consent with respect thereto,
as follows:
(a) with respect to any amendments or
modifications of any Class A Mortgage, the Trustee shall vote
all such Class A Bonds delivered under such Class A Mortgage,
or shall consent with respect thereto, proportionately with
the vote or consent of the holders of all other Class A Bonds
Outstanding under such Class A Mortgage the holders of which
are eligible to vote or consent, as indicated in a Class A
Bondholder's Certificate delivered to the Trustee.
For purposes of this Section, "Class A
Bondholder's Certificate" means a certificate signed by the
temporary chairman, the temporary secretary, the permanent
chairman, the permanent secretary, or an inspector of votes at
any meeting or meetings of bondholders under a Class A
Mortgage, or by the trustee under such Class A Mortgage in the
case of consents of such bondholders which are sought without
a meeting, which states what the signer thereof reasonably
believes will be the proportionate votes or consents of the
holders of all Class A Bonds (other than the Class A Bonds
delivered to and held by the Trustee pursuant to Sections 130
and 131) outstanding under such Class A Mortgage and counted
for the purposes of determining whether such bondholders have
approved or consented to the matter put before them.
SECTION 136. Designation of Additional Class A
Mortgages.
(a) In the event that, after the date of the
execution and delivery of this Indenture, a corporation which
was the mortgagor under a mortgage, deed of trust or similar
indenture shall have merged into or consolidated with the
Company, or shall have conveyed or otherwise transferred
property to the Company subject to the lien of such a
mortgage, deed of trust or similar indenture and the Company
shall have duly assumed and agreed to perform and pay all the
obligations of the mortgagor thereunder, such mortgage, deed
of trust or similar indenture may be designated an additional
Class A Mortgage upon delivery to the Trustee of the
following:
(i) a Company Order authorizing the
designation of such mortgage, deed of trust or similar
indenture as an additional Class A Mortgage;
(ii) an Officers' Certificate (A) stating
that no event has occurred and is continuing which entitles
the trustee under such mortgage, deed of trust or similar
indenture to accelerate the maturity of the obligations
outstanding thereunder, (B) reciting the aggregate principal
amount of obligations theretofore issued under such mortgage,
deed of trust or similar indenture and the aggregate principal
amount of obligations then outstanding thereunder and (C)
either (1) stating that the terms of such mortgage, deed of
trust or similar indenture, as then in effect, do not permit
the issuance of obligations thereunder upon the basis of
property additions in a principal amount exceeding seventy per
centum (70%) of the balance of the cost or fair value of such
property additions to the issuer thereof (whichever shall be
less) after making deductions and additions similar to those
provided for in Section 4, or (2) in the event that the
statements contained in clause (1) above cannot be made,
stating that the Company has irrevocably waived its right to
the authentication and delivery of further obligations under
such mortgage, deed of trust or similar indenture (I) on any
basis, in a principal amount equal to the excess of (x) the
aggregate principal amount of obligations then outstanding
under such mortgage, deed of trust or similar indenture which
were issued on the basis of property additions or on the basis
of the retirement of obligations which were issued (whether
directly or indirectly when considered in light of the
successive issuance and retirement of obligations) on the
basis of property additions over (y) an amount equal to
seventy per centum (70%) of the aggregate Dollar amount of
property additions certified as the basis for the issuance of
such obligations then outstanding and (II) on the basis of
property additions, in a principal amount exceeding seventy
per centum (70%) of the balance of the Cost or Fair Value to
the Company thereof (whichever shall be less) after making
deductions and additions similar to those provided for in
Section 4; and
(iii) an Opinion or Opinions of
Counsel to the effect that (A) the corporation that was the
mortgagor under such mortgage, deed of trust or similar
indenture has been duly and lawfully merged into or
consolidated with the Company or has duly and lawfully
conveyed or otherwise transferred property to the Company; (B)
the Company has duly assumed and agreed to perform and pay the
obligations of the mortgagor under such mortgage, deed of
trust or similar indenture; (C) such mortgage, deed of trust
or similar indenture constitutes a lien upon the property
described therein subject to no lien prior thereto except
liens generally of the character of Excepted Encumbrances and
liens permitted under Section 36 to exist or to be hereafter
created; (D) this Indenture constitutes, or, upon the delivery
of, and/or the filing and/or the recording in the proper
places and manner of, the instruments of conveyance,
assignment or transfer, if any, specified in such opinion,
will constitute, a lien on the property described in such
mortgage, deed of trust or similar indenture which is
generally of the character described in the definition of
Property Additions in Section 4 of this Indenture and which
was acquired by the Company from such corporation by virtue of
such merger, consolidation, conveyance or other transfer,
subject to no lien thereon prior to the lien of this Indenture
except the lien of such mortgage, deed of trust or similar
indenture, Excepted Encumbrances, liens generally of the
character permitted to exist or to be hereafter created under
Section 36 and, to the extent, if any, specified in such
opinion, the lien of any existing Class A Mortgage; (E) the
terms of such mortgage, deed of trust or similar indenture, as
then in effect, do not permit the further issuance of
obligations thereunder except on the basis of property
additions generally of the character of Property Additions,
the retirement or deposit of outstanding obligations, the
deposit of prior lien obligations or the deposit of cash; (F)
either (1) the terms of such mortgage, deed of trust or
similar indenture, as then in effect, do not permit the
further issuance of obligations thereunder upon the basis of
property additions in a principal amount exceeding seventy per
centum (70%) of the balance of the Cost or the Fair Value to
the Company thereof (whichever shall be less) after making
deductions and additions similar to those provided for in
Section 4, or, if such is not the case, (2) that the waivers
contemplated by clause (ii)(C)(2) above have been duly made;
(G) in the case of a conveyance or other transfer to the
Company of property subject to the lien of such mortgage, deed
of trust or similar indenture, no person, corporation or other
entity (other than the Company) has the right to issue or
redeem obligations secured by, or to obtain the release of
property from the lien of, such mortgage, deed of trust or
similar indenture; and (H) the indenture supplemental hereto
referred to in clause (i) of subsection (b) of this Section
complies with the requirements of said clause (i), and the
indenture supplemental to such mortgage, deed of trust or
similar indenture referred to in clause (ii) of subsection (b)
of this Section complies with the requirements of said clause
(ii).
(b) At such time as there shall have been
executed and delivered and properly recorded and filed:
(i) an indenture supplemental hereto (A)
in which such mortgage, deed of trust or similar indenture has
been designated as an additional Class A Mortgage and (B) by
which the Company has specifically imposed the lien of this
Indenture upon properties of the character of Property
Additions as defined in this Indenture which shall have been
acquired by the Company from such corporation by virtue of the
merger, consolidation, conveyance or other transfer (and later
improvements, extensions and additions thereto and renewals
and replacements thereof) as contemplated by Section 87
hereof; and
(ii) an indenture supplemental to such
mortgage, deed of trust or similar indenture by which such
mortgage, deed of trust or similar indenture has been amended
to provide that, so long as the Trustee shall hold any
obligations outstanding thereunder which were delivered to the
Trustee as the basis for the authentication and delivery of
bonds which remain Outstanding hereunder, a Default hereunder
shall constitute a matured event of default thereunder;
provided, however, that the waiver or cure of such Default
hereunder and the rescission and annulment of the consequences
thereof shall constitute a waiver of the corresponding event
of default under such mortgage, deed of trust or similar
indenture and a rescission and annulment of the consequences
thereof,
then such mortgage, deed of trust or similar indenture
and all obligations issued and outstanding thereunder shall
for all purposes hereof be treated as a Class A Mortgage and
as Class A Bonds, respectively.
SECTION 137. Discharge of Class A Mortgage.
The Trustee shall surrender for cancellation to
the trustee under any Class A Mortgage all Class A Bonds
delivered to and then held by it pursuant to Sections 130 and
131 which were delivered under such Class A Mortgage upon
receipt by the Trustee of:
(a) a Company Order requesting such
surrender for cancellation of such Class A Bonds;
(b) an Officers' Certificate to the
effect that no Class A Bonds are Outstanding under such Class
A Mortgage other than Class A Bonds delivered to and held by
the Trustee pursuant to Sections 130 and 131 and that promptly
upon such surrender such Class A Mortgage will be satisfied
and discharged pursuant to the terms thereof;
(c) an Engineer's Certificate
(i) describing all property
constituting Property Additions designated by the Company, in
its discretion, to be deemed, on and after the date of such
surrender for cancellation and for all purposes of this
Indenture, to be Funded Property, such Property Additions to
have, in the aggregate, a Cost (or as to Property Additions of
which the Fair Value to the Company specified pursuant to
subclause (viii) or clause (d) below is less than the Cost
thereof, then such Fair Value in lieu of Cost) not less than
ten-sevenths (10/7) of the aggregate principal amount of bonds
which shall have been authenticated and delivered under
Section 130 on the basis of Class A Bonds authenticated and
delivered under such Class A Mortgage and which, at such date,
remain Outstanding;
(ii) stating that all such
property constitutes Property Additions;
(iii) stating that such
Property Additions are desirable for use in the conduct of the
business of the Company;
(iv) stating that such Property
Additions, to the extent of the Cost (or as to Property
Additions of which the Fair Value to the Company specified
pursuant to subclause (viii) or clause (d) below is less than
the Cost thereof, then such Fair Value in lieu of Cost)
thereof to be deemed to be Funded Property pursuant to this
Section, do not constitute Funded Property;
(v) stating, except as to
Property Additions acquired, made or constructed wholly
through the delivery of securities or other property, that the
amount of cash forming all or part of the Cost thereof was
equal to or more than an amount to be stated therein;
(vi) briefly describing, with
respect to any Property Additions acquired, made or
constructed in whole or in part through the delivery of
securities or other property, the securities or other property
so delivered and stating the date of such delivery;
(vii) stating what part, if
any, of such Property Additions included property which within
six (6) months prior to the date of acquisition thereof by the
Company had been used or operated by others than the Company
in a business similar to that in which it has been or is to be
used or operated by the Company and stating whether or not, in
the judgment of the signers, the Fair Value to the Company
thereof, as of the date of such certificate, is less than
Twenty-five Thousand Dollars ($25,000) and whether or not the
Fair Value to the Company thereof, as of such date, is less
than one per centum (1%) of the aggregate principal amount of
bonds then Outstanding;
(viii) stating, in the
judgment of the signers, the Fair Value to the Company, as of
the date of such certificate, of such Property Additions,
except any thereof with respect to the Fair Value to the
Company of which a statement is to be made in an Independent
Engineer's Certificate pursuant to clause (d) below; provided,
however, that if any such Property Additions shall have
theretofore been certified to the trustee under such Class A
Mortgage in connection with the authentication and delivery of
Class A Bonds thereunder, the release of property, the
withdrawal of cash or the satisfaction of the requirements of
any sinking, improvement, maintenance, replacement or similar
fund or analogous provision, then there may be stated, in lieu
of the Fair Value to the Company of such Property Additions as
of the date of such certificate, the Fair Value to the Company
thereof as so certified to the trustee under such Class A
Mortgage; it being understood that the Company may make
allocations on a pro-rata or other reasonable basis for
purposes of determining whether or not, and/or the extent to
which, any such Property Additions shall have theretofore been
so certified to the trustee under a Class A Mortgage; and
(ix) if any property included in
such Property Additions is subject to easements, restrictions,
exceptions or reservations of the character described in
clause (e) of the definition of Excepted Encumbrances, stating
that the same do not, in the judgment of the signers,
materially impair the use by the Company of the Mortgaged
Property considered as a whole; and
(x) stating the lower of the
Cost or the Fair Value to the Company of such Property
Additions, as required to be stated in such Engineer's
Certificate pursuant to clauses (i) and (viii) above,
respectively;
(xi) stating the amount equal to
seventy per centum (70%) of the amount required to be stated
pursuant to clause (x) above; and
(xii) stating the aggregate
principal amount of the bonds referred to in clause (i) above
(such amount not to exceed the amount stated pursuant to
clause (xi) above);
(d) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause (c)
above to include property which, within six months prior to
the date of acquisition thereof by the Company, had been used
or operated by others than the Company in a business similar
to that in which it has been or is to be used or operated by
the Company and such certificate does not show the Fair Value
to the Company thereof, as of the date of such certificate, to
be less than Twenty-five Thousand Dollars ($25,000) or less
than one per centum (1%) of the aggregate principal amount of
bonds then Outstanding, an Independent Engineer's Certificate
stating, in the judgment of the signer, the Fair Value to the
Company, as of the date of such Independent Engineer's
Certificate, of (x) such Property Additions which have been so
used or operated and (at the option of the Company) as to any
other Property Additions included in the Engineer's
Certificate provided for in clause (c) above and (y) any
property so used or operated which has been subjected to the
lien of this Indenture since the commencement of the then
current calendar year as the basis for the authentication and
delivery of bonds and as to which an Independent Engineer's
Certificate has not previously been furnished to the Trustee;
(e) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause (c)
above to have been acquired, made or constructed in whole or
in part through the delivery of securities or other property,
an Engineer's Certificate stating, in the judgment of the
signers, the fair market value in cash of such securities or
other property at the time of delivery thereof in payment for
or for the acquisition of such Property Additions;
(f) an Opinion of Counsel to the effect
that:
(i) this Indenture constitutes,
or, upon (x) the satisfaction and discharge of such Class A
Mortgage and/or (y) the delivery of, and/or the filing and/or
recording in the proper places and manner of, the instruments
of conveyance, assignment or transfer, if any, specified in
said opinion, will constitute, a lien on all the Property
Additions to be deemed to be Funded Property in accordance
with this Section, subject to no lien thereon prior to the
lien of this Indenture except Excepted Encumbrances; and
(ii) the Company has corporate
authority to operate such Property Additions;
(g) an Opinion of Counsel to the effect
that upon satisfaction and discharge of such Class A Mortgage
the lien of this Indenture on the property formerly subject to
the lien of such Class A Mortgage, to the extent the same is
part of the Mortgaged and Pledged Property, will be subject to
no lien prior to the lien of this Indenture except Excepted
Encumbrances and liens of the character permitted to exist or
to be hereafter created under Section 36; and
(h) copies of the instruments of
conveyance, assignment and transfer, if any, specified in the
Opinion of Counsel provided for in clause (f) above.
SECTION 138. Defaults under Class A Mortgages.
In addition to every other right and remedy
provided herein, the Trustee may (but shall not be obligated
to) exercise any right or remedy available to the Trustee in
its capacity as owner and holder of Class A Bonds which arises
as a result of a default or matured event of default under any
Class A Mortgage, whether or not a Default shall then have
occurred and be continuing.
The Trustee shall give to the trustee under
each Class A Mortgage a copy of each notice of default given
to the bondholders pursuant to Section 66 hereof. In
addition, the Trustee shall give to the bondholders copies of
each notice of default under any Class A Mortgage given to the
Trustee in its capacity as owner and holder of Class A Bonds
delivered thereunder.
The amendment of the Mortgage to add a new Section which
reads substantially as follows:
Section ____. Nothing in this Indenture shall
prevent the Company from implementing a corporate division,
whereby all or substantially all of the Company's assets and
liabilities, including the bonds then Outstanding under this
Indenture, are divided among two or more successor
corporations, one of which may be the Company, provided that
the following conditions are met:
(A) the Company shall deliver an Independent
Engineer's Certificate to the Trustee, dated not more than
ninety days prior to such corporate division,
(1) stating the Fair Value, in the opinion
of the signers, of all Funded Property then owned by the
Company;
(2) stating, with respect to each
successor corporation, the Fair Value, in the opinion of the
signers, of the Funded Property to be transferred to each such
successor corporation in the corporate division;
(3) stating the Fair Value, in the opinion
of the signers, of all of the Mortgaged and Pledged Property
to be released from the Lien of this Indenture in such
corporate division; and
(4) stating, that in the opinion of the
signers, the release of the Mortgaged and Pledged Property to
each successor corporation will not impair the security under
this Indenture in contravention of the provisions hereof;
(B) each of the successor corporations which
receives any Mortgaged and Pledged Property in the corporate
division shall adopt an indenture substantially identical to
this Indenture, each such indenture to create a lien on the
Mortgaged and Pledged Property received by such successor
corporation to secure the payment of those bonds then
Outstanding under this Indenture the payment of which is
assumed by such successor corporation;
(C) each of the successor corporations which
receives any Funded Property shall assume the payment of
certain bonds then Outstanding under this Indenture, the
aggregate principal amount of such assumed bonds to be between
ninety-nine per centum (99%) and one hundred one per centum
(101%) of the product of the aggregate principal amount of all
bonds then Outstanding under this Indenture multiplied by the
amount stated in clause (2) above with respect to such
successor corporation divided by the amount stated in clause
(1) above;
(D) the amount of bonds that the Company was
entitled to have authenticated and delivered pursuant to the
provisions of Section 29 hereof shall be allocated to the
successor corporations under each of their respective
indentures in the same proportion as bonds were assumed under
clause (C) above;
(E) the Company shall deliver to the Corporate
Trustee an Opinion of Counsel, dated not more than ninety days
prior to such corporate division,
(1) describing the instruments, documents
and actions necessary to preserve the Lien of this Indenture
on the Mortgaged and Pledged Property until the lien of the
indenture of each successor corporation has been perfected
with respect to so much of the Mortgaged and Pledged Property
as is being transferred to such successor corporation in the
corporate division,
(2) stating that, in the opinion of the
signers, the bonds assumed by each successor corporation will
be secured by a lien upon the Mortgaged and Pledged Property
transferred to such successor corporation similar in
character, validity and priority to the Lien of this Indenture
immediately prior to such corporation division.
The Trustees under this Indenture shall execute and
deliver such instruments and other documents and take such
other action as is described in the Opinion of Counsel
described above to release from the Lien of this Indenture the
Mortgaged and Pledged Property transferred to each such
successor corporation in the corporate division effective as
of the date of the imposition of the lien of the indenture
described above on such Mortgaged and Pledged Property. The
Corporate Trustee shall allocate and deliver any Funded Cash
held by it as of the date of corporate division among the
trustees for the indentures of the successor corporations in
the same proportion that bonds are assumed under clause (C)
above.
Promptly after the implementation of the foregoing, the
Company shall be released and discharged from any obligation
to pay the principal or interest on any bond assumed by a
successor corporation other than the Company and such assumed
bonds shall be deemed to have been paid for purposes of
Section 106 of this Indenture.
The amendment of Section 25 of the Mortgage to change the
words "sixty per centum (60%)" to "seventy per centum (70%). The
amendment of clause (c) of subdivision (4) of Section 59 to read
as follows:
(c) the principal amount of each bond or
fraction of bond to the authentication and delivery of which
the Company shall be entitled under the provisions of Section
26 or 10/7 of the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 29 hereof,
by virtue of compliance with all applicable provisions of said
Section 26 or Section 29, as the case may be (except as
hereinafter in this Section otherwise provided) the
application for such release shall operate as a waiver by the
Company of such right to the authentication and delivery of
each such bond or fraction thereof on the basis of which right
such property is released and to such extent no such bond or
fraction thereof may thereafter be authenticated and delivered
hereunder, and any such bonds or Qualified Lien Bonds which
have been made the basis of any such right to the
authentication and delivery of bond(s) or fraction of a bond
so waived shall be deemed to have been made the basis of the
release of such property;
(a) The amendment of subparagraph (A) of the first
paragraph of Section 7 to substitute the words "eighteen (18)"
for the words "fifteen (15)" in the second line.
(b) The amendment of clause (1) of clause (A) of
Section 7 to add after the word "revenues" substantially the
following text:
(which may include revenues subject when collected
or accrued to possible refund at a future date)
(c) The amendment of clause (8) of subparagraph (A)
of the first paragraph of Section 7 to add after the word
"(net)" substantially the following text:
, which may include any portion of the allowance for
funds used during construction or any portion of the allowance
for funds used for conservation expenditures (or any analogous
amount), in either case, which is not included in "other
income" (or any analogous item) in the Company's books of
account
(d) The amendment of the second paragraph in
Section 7 (which begins with the words "In calculating such
Adjusted Net Earnings ..." to add at the end of the first
sentence thereof substantially the following text:
and provided further that no deduction from revenues
or income shall be made for expenses or provisions for any non-
recurring charge to income of whatever kind or nature
(including without limitation the recognition of expense due
to the non-recoverability of investment), whether or not
recorded as an extraordinary item in the Company's books of
account, and no deduction from revenues or income shall be
made for provisions for any refund of revenues previously
collected or accrued subject to possible refund.
(e) The addition of a new paragraph at the end of
Section 7 to read substantially as follows:
In calculating such Annual Interest
Requirements (A) if any bonds issued hereunder, Qualified Lien
Bonds and/or other indebtedness bear interest at a variable
rate or rates, the Annual Interest Requirements thereon shall
be determined by reference to the rate or rates in effect on
the date next preceding the date of the initial authentication
and delivery of the bonds then applied for in the application
in connection with which the Net Earning Certificate is made,
(B) if such bonds then applied for and/or any bonds applied
for in any other pending application are to bear interest at a
variable rate or rates, the Annual Interest Requirements
thereon shall be determined by reference to the rate or rates
to be in effect at the time of the initial authentication and
delivery thereof, and (C) the Annual Interest Requirements on
bonds issued or to be issued hereunder, Qualified Lien Bonds
and any other indebtedness shall be determined by reference to
the rate or rates at which such obligations are stated by
their terms to bear simple interest, without regard to the
effective interest cost to the Company of such obligations and
without regard to the stated interest rate or rates upon, or
the effective cost to the Company of, other obligations for
which such obligations are or are to be pledged or otherwise
delivered as security.
The amendment of Section 86 of the Mortgage to add a
new paragraph at the end reading substantially as follows:
In case the Company, as permitted by Section 85
hereof, shall convey or transfer, subject to the Lien of this
Indenture, all or substantially all of the Mortgaged and
Pledged Property as an entirety to a successor corporation,
the indenture described above in this Section may also provide
for the release and discharge of the Company from all
obligations under this Indenture or any bonds issued hereunder
which are assumed by such successor corporation.
The amendment of Section 102 of the Mortgage to insert
immediately after the first paragraph thereof a new paragraph
reading substantially as follows:
So long as no event which is, or after notice
or lapse of time, or both, would become, a Default (as defined
in Section 65 hereof) shall have occurred and be continuing,
if the Company shall have delivered to the Corporate Trustee
(i) an instrument executed by order of its Board of Directors
and duly acknowledged by proper officers of the Company
appointing a successor Corporate Trustee, Individual Trustee
or other trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor trustee, such
trustee shall be deemed to have resigned as contemplated in
Section 101, and such successor trustee shall be deemed to
have been appointed pursuant to the first paragraph of this
Section, all as of such date, and all other provisions of this
Article shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with this
paragraph.
The amendment of Section 120 of the Mortgage to read
substantially as follows:
SECTION 120. Anything in this Indenture to the
contrary notwithstanding, without the consent of any holders
of bonds, the Company and the Trustees, at any time and from
time to time, may enter into one or more indentures supple
mental hereto, in form satisfactory to the Trustees, for any
of the following purposes:
(a) 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
bonds, all as provided in Article XVI hereof, or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all holders of
the bonds or for the benefit of the holders of, or to remain
in effect only so long as there shall be Outstanding, bonds of
one or more specified series, and to make the occurrence of a
default in the performance of any of such additional covenants
an additional "Default" under Section 65 permitting the
enforcement of all or any of the several remedies provided in
this Indenture, as herein set forth; provided, however, that
in respect of any such additional covenant, such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than those
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default, or may (subject to
the provisions of applicable law) limit the remedies available
to the Trustees upon such default; or to provide that the
occurrence of one or more specified events shall constitute
additional "Defaults" under Section 65 as if set forth
therein, or to surrender any right or power herein conferred
upon the Company, which additional "Default" or surrender may
be limited so as to remain in effect only so long as bonds of
one or more specified series shall remain Outstanding; or
(c) to correct or amplify the description
of any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto the
Trustees any property subject or required to be subjected to
the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property; or
(d) to change or eliminate any provision
of this Indenture or to add any new provision to this
Indenture; provided, however, that no such change, elimination
or addition shall adversely affect the interests of the
holders of bonds of any series in any material respect; or
(e) to establish the form or terms of
bonds of any series as contemplated by Article II; or
(f) to provide for the procedures
required to permit the Company to utilize, at its option, a
non-certificated system of registration for all or any series
of bonds; or
(g) to change any place or places where
(1) the principal of and premium, if any, and interest, if
any, on all or any series of bonds shall be payable, (2) all
or any series of bonds may be surrendered for registration of
transfer, (3) all or any series of bonds may be surrendered
for exchange and (4) notices and demands to or upon the Com
pany in respect of all or any series of bonds and this
Indenture may be served; or
(h) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein; or to make any
other changes to the provisions hereof or to add other
provisions with respect to matters or questions arising under
this Indenture, provided that such other changes or additions
shall not adversely affect the interests of the holders of
bonds of any series in any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act of 1939, as in effect at
any time and from time to time,
(x) shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to the Trust Indenture Act
of 1939 as then in effect, and the Company and the Trustees
may, without the consent of any holders of bonds, enter into
an indenture supplemental hereto to evidence such amendment
hereof; or
(y) shall permit one or more
changes to, or the elimination of, any provisions hereof which
shall theretofore have been required by the Trust Indenture
Act of 1939 to be contained herein or are contained herein to
reflect any provisions of the Trust Indenture Act of 1939,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company and the Trustees
may, without the consent of any holders of bonds, enter into
an indenture supplemental hereto to evidence such amendment
hereof.
The amendment of Section 59 of the Mortgage to delete the
clause at the end of subdivision (4) beginning with the words
"provided, however, that (i) no obligations ...." and ending with
the words "... at such time Outstanding under this Indenture" and
substituting therefor substantially the following:
provided, however, that no obligations secured by
purchase money mortgage upon any property being released from
the Lien hereof shall be used as a credit in any application
for such release unless the Company shall deliver to the
Trustee a certificate or opinion of an engineer, appraiser or
other expert as to the fair value of such purchase money
mortgage obligations to the Company, and provided further,
that if the fair value to the Company of such purchase money
mortgage obligations and of all other securities (other than
bonds authenticated and delivered hereunder) made the basis of
any authentication and delivery of bonds hereunder, the
withdrawal of any cash constituting part of the trust estate
hereunder, or the release of any property or securities from
the Lien hereof since the commencement of the then calendar
year, as set forth in the certificates or opinions required by
this clause, is ten per centum (10%) or more of the aggregate
principal amount of the bonds at the time Outstanding under
this Indenture, such certificate or opinion shall be made by
an independent engineer, appraiser, or other expert; but such
a certificate of an independent engineer, appraiser, or other
expert shall not be required with respect to any purchase
money mortgage obligations so deposited, if the fair value
thereof to the Company as set forth in the certificate or
opinion required by this clause is less than twenty-five
thousand Dollars ($25,000) or less than one per centum (1%) of
the aggregate principal amount of bonds at the time
Outstanding under this Indenture.
The amendment of Section 37 of the Mortgage to replace the
words "Fifty Thousand Dollars ($50,000)" with the words "the
greater of (A) Ten Million Dollars ($10,000,000) and (B) three
per centum (3%) of the aggregate principal amount of bonds then
Outstanding on the date of such particular loss" in each place
such words appear in such Section.