Exhibit 4(a)
COLLATERAL TRUST INDENTURE
dated as of __________, 19__
AMONG
W3A FUNDING CORPORATION,
LOUISIANA POWER & LIGHT COMPANY
AND
BANKERS TRUST COMPANY
not in its individual capacity, but solely as Trustee
___________
Providing for the Issuance from Time to Time of
Securities To Be Issued in One or More Series
Issuance of Securities
in connection with the
Lease of Three Undivided Interests in
Unit No. 3 of the Waterford Steam
Electric Generating Station
St. Charles Parish, Louisiana
W3A FUNDING CORPORATION
LOUISIANA POWER & LIGHT COMPANY
Reconciliation and tie between Indenture
dated as of October 1, 1994
and
Trust Indenture Act of 1939
Section
Section of Act of Indenture
310(a)(1) 9.09
(2) 9.09
(3) 9.15(b)(2)
(4)
Inapplicable
(5) 9.09
(b) 9.08,9.10
(c) 9.13
311(a) 9.13
(b) 9.13
(c)
Inapplicable
312(a) 10.01
(b) 10.01
(c) 10.01
313(a) 10.02
(b) 10.02
(c) 10.02
(d) 10.02
314(a) 10.02
(b) 5.06
(c)(1) 1.02
(2) 1.02
(3) 2.04(g)(i)
(d)(1) 5.11
(2) Inapplicable
(3) 2.04(g)(ii)
(e) 1.02
315(a) 9.01, 9.03
(b) 9.02
(c) 9.01
(d)(1) 9.01
(2) 9.01
(3) 9.01
(e) 8.10
316(a)(1)(A) 8.07
(B) 8.08
(2) Inapplicable
(a) (last sentence) 1.01
("Outstanding")
(b) 8.11
317(a)(1) 8.05(a)
(2) 8.05(d)
(b) 5.03
9.14(a)
318(a) 1.07
____________________
Bond: This reconciliation and tie shall not, for any purpose, be
deemed to constitute a part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS 1
GRANTING CLAUSES 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definitions 2
Section 1.02. Compliance Certificates and
Opinions 7
Section 1.03. Form of Documents Delivered to
Trustee 8
Section 1.04. Acts of Holders 8
Section 1.05. Notices, etc., to Trustee, Company
and LP&L 9
Section 1.06. Notices to Holders; Waiver 9
Section 1.07. Conflict with Trust Indenture Act 10
Section 1.08. Effect of Heading and Table of
Contents 10
Section 1.09. Successors and Assigns 10
Section 1.10. Separability Clause 10
Section 1.11. Benefits of Indenture 10
Section 1.12. Governing Law 10
Section 1.13. Legal Holidays 11
ARTICLE TWO
The Securities
Section 2.01. Form of Security to Be Established
by Series Supplemental Indenture 11
Section 2.02. Form of Trustee's Authentication 11
Section 2.03. Amount Unlimited; Issuable in
Series; Limitations on Issuance 11
Section 2.04. Authentication and Delivery of
Securities 13
Section 2.05. Form and Denominations 14
Section 2.06. Execution of Securities 14
Section 2.07. Temporary Securities 15
Section 2.08. Registration, Transfer and Exchange 15
Section 2.09. Mutilated, Destroyed, Lost and
Stolen Securities 16
Section 2.10. Payment of Interest; Interest
Rights Preserved 16
Section 2.11. Persons Deemed Owners 18
Section 2.12. Cancellation 18
Section 2.13. Dating of Securities; Computation
of Interest 18
Section 2.14. Source of Payments; Rights and
Liabilities of Lessors, Owner Participants and
Lease Indenture Trustees 18
Section 2.15. Application of Proceeds from the
Sale of Securities 18
Section 2.16. Principal Amount of Securities
Payable Without Presentment or Surrender. 19
ARTICLE THREE
Provisions as to Pledged Property
Section 3.01. Holding of Pledged Securities 19
Section 3.02. Disposition of Payments on Pledged
Property. 19
Section 3.03. Exercise of Rights and Powers Under
Pledged Lessor Bonds and Lease
Indentures 19
Section 3.04. Certain Actions in Case of Judicial
Proceedings 20
Section 3.05. Cash Held by Trustee Treated as a
Deposit 20
ARTICLE FOUR
Withdrawal of Collateral
Section 4.01. Withdrawal of Collateral 20
Section 4.02. Reassignment of Pledged Lessor
Bonds upon Payment 20
ARTICLE FIVE
Covenants
Section 5.01. Payment of Principal, Premium, if
any, and Interest 20
Section 5.02. Maintenance of Office or Agency 21
Section 5.03. Money for Security Payments to be
Held in Trust 21
Section 5.04. Maintenance of Corporate Existence 22
Section 5.05. Protection of Pledged Property. 22
Section 5.06. Opinions as to Pledged Property. 23
Section 5.07. Performance of Obligations 23
Section 5.08. Negative Covenants 23
Section 5.09. Annual Statement as to Compliance 24
Section 5.10. Delivery of Certificate of
Independent Public Accountant 24
Section 5.11. Delivery of Certificate of
Engineer, Appraiser or Other Expert 24
ARTICLE SIX
Redemption of Securities
Section 6.01. Applicability of Article 25
Section 6.02. Election to Redeem; Notice to
Trustee 25
Section 6.03. Selection by Trustee of Securities
to be Redeemed. 25
Section 6.04. Notice of Redemption. 26
Section 6.05. Securities Payable on Redemption
Date 27
Section 6.06. Securities Redeemed in Part. 27
ARTICLE SEVEN
Sinking Funds
Section 7.01. Applicability of Article 27
Section 7.02. Sinking Funds for Securities 28
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 8.01. Events of Default 28
Section 8.02. Acceleration of Maturity;
Rescission and Annulment 29
Section 8.03. Trustee's Power of Sale of Pledged
Property; Notice Required; Power to Bring
Suit 30
Section 8.04. Incidents of Sale of Pledged
Property 30
Section 8.05. Judicial Proceedings Instituted by
Trustee 31
Section 8.06. Holders May Demand Enforcement of
Rights by Trustee 33
Section 8.07. Control by Holders 33
Section 8.08. Waiver of Past Defaults 34
Section 8.09. Proceedings Instituted by Holder 34
Section 8.10. Undertaking To Pay Court Costs 34
Section 8.11. Right of Holders To Receive Payment
Not To Be Impaired 35
Section 8.12. Application of Moneys Collected by
Trustee 35
Section 8.13. Securities Held by Certain Persons
Not To Share in Distribution. 36
Section 8.14. Waiver of Appraisement, Valuation,
Stay, Right to Marshalling 36
Section 8.15. Remedies Cumulative; Delay or
Omission Not a Waiver 36
ARTICLE NINE
The Trustee
Section 9.01. Certain Duties and Responsibilities 37
Section 9.02. Notice of Defaults 37
Section 9.03. Certain Rights of Trustee 37
Section 9.04. Not Responsible for Recitals or
Issuance of Securities. 38
Section 9.05. May Hold Securities 38
Section 9.06. Funds May Be Held by Trustee or
Paying Agent 38
Section 9.07. Compensation and Reimbursement of
Trustee and Authorized Agents 39
Section 9.08. Disqualification; Conflicting
Interests 39
Section 9.09. Corporate Trustee Required;
Eligibility 39
Section 9.10 Resignation and Removal; Appointment
of Successor. 40
Section 9.11. Acceptance of Appointment by
Successor. 41
Section 9.12. Merger, Conversion, Consolidation
or Succession to Business. 41
Section 9.13. Preferential Collection of Claims
against any Obligor 41
Section 9.14. Authorized Agents 41
Section 9.15. Co-Trustee or Separate Trustee. 43
ARTICLE TEN
Holders' Lists and Reports
by Trustee and LP&L
Section 10.01. LP&L to Furnish Trustee Names and
Addresses of Holders. 44
Section 10.02. Reports by Trustee and LP&L 45
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without
Consent of Holders. 45
Section 11.02. Supplemental Indenture With
Consent of Holders 46
Section 11.03. Documents Affecting Immunity or
Indemnity 47
Section 11.04. Election of Supplemental
Indentures 47
Section 11.05. Effect of Supplemental Indentures 47
Section 11.06. Conformity with Trust Indenture
Act 47
Section 11.07. Reference in Securities to
Supplemental Indentures. 48
ARTICLE TWELVE
Satisfaction and Discharge
Section 12.01. Satisfaction and Discharge of
Securities 48
Section 12.02. Satisfaction and Discharge of Indenture. 49
Section 12.03. Application of Trust Money 50
ARTICLE THIRTEEN
Meetings of Holders of Securities; Action without Meeting
Section 13.01.Purposes for Which Meetings May Be Called 50
Section 13.02. Call, Notice and Place of Meetings. 50
Section 13.03. Persons Entitled to Vote at
Meetings 51
Section 13.04. Quorum; Action. 51
Section 13.05. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 52
Section 13.06. Counting Votes and Recording
Action of Meetings. 52
Section 13.07. Action Without Meeting 53
ARTICLE FOURTEEN
Liability of the Company Solely Corporate; No Liability of LP&L
Section 14.01. Liability of the Company Solely
Corporate. 53
Section 14.02. No Liability of LP&L 53
PARTIES 51
EXHIBIT A - Identification of Certain Documents and Parties
Thereto
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of __________, 199_,
among W3A Funding Corporation, a Delaware corporation (the
"Company"), having its principal office and mailing address at
Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801, Louisiana Power & Light Company, a Louisiana
corporation ("LP&L"), having its principal office and mailing
address at 639 Loyola Avenue, New Orleans, Louisiana 70113 and
Bankers Trust Company, a New York banking corporation, not in its
individual capacity but solely as trustee (hereinafter called the
"Trustee") having its corporate trust office at Four Albany
Street, New York, New York 10006.
W I T N E S S E T H:
Whereas, the Company has duly authorized the creation of an
issue of its bonds, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture; and to
secure the Securities and to provide for the authentication and
delivery thereof by the Trustee, the Company has duly authorized
the execution and delivery of this Indenture; and
Whereas, all acts necessary to make this Indenture a valid
instrument for the security of the Securities, in accordance with
its and their terms, have been done;
Now, Therefore, This Indenture Witnesseth, that, to secure
the payment of the principal of and premium, if any, and interest
on all the Securities authenticated and delivered hereunder and
issued by the Company and outstanding, and the performance of the
covenants therein and herein contained, and in consideration of
the premises and of the covenants herein contained and of the
purchase of the Securities by the holders thereof, and of the sum
of one dollar ($1.00) paid to the Company by the Trustee at or
before the delivery hereof, the receipt whereof is hereby
acknowledged, the Company by these presents does grant, bargain,
sell, release, convey, assign, pledge, transfer, mortgage,
hypothecate and confirm unto the Trustee all and singular the
following (which collectively are hereinafter called the "Pledged
Property"), excluding, in any event, any moneys which are
specifically stated herein not to constitute part of the Pledged
Property, to wit:
RECITALS
All Pledged Lessor Bonds (as hereinafter defined) as shall
be actually pledged and assigned by the Company to the Trustee
pursuant to the Series Supplemental Indentures or other
supplemental indentures to be executed and delivered as provided
in this Indenture, together with the interest of the Company, if
any, in the Lease Indentures (as hereinafter defined) securing
said Pledged Lessor Bonds.
GRANTING CLAUSES
Any property, including cash, that may, from time to time,
hereafter be subjected to the lien and/or pledge hereof by the
Company or which, pursuant to any provision of this Indenture or
any Series Supplemental Indenture or other supplemental
indentures to be executed and delivered as provided in this
Indenture, may become subjected to the lien and/or pledge hereof;
and the Trustee is hereby authorized to receive the same at any
time as additional security hereunder. Such subjection to the
lien hereof of any such property as additional security may be
made subject to any reservations, limitations or conditions which
shall be set forth in a written instrument executed by the
Company and/or by the Trustee respecting the scope or priority of
such lien and/or pledge or the use and disposition of such
property or the proceeds thereof.
To Have and to Hold the Pledged Property unto the Trustee
and its successors and assigns forever subject to the terms of
this Indenture, including, without limitation, Section 12.01.
But In Trust, Nevertheless, for the equal and proportionate
benefit and security of the holders from time to time of all the
Securities authenticated and delivered hereunder and issued by
the Company and outstanding, without any priority of any one
Security over any other.
And Upon The Trusts and subject to the covenants and
conditions hereinafter set forth.
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act (as hereinafter defined), either directly or
by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) all reference in this Indenture to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Indenture; and
(5) 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
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 1.04.
"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 acting as
Authenticating Agent hereunder pursuant to Section 9.14.
"Authorized Agent" means any Paying Agent or Security
Registrar or Authenticating Agent or other agent appointed by the
Trustee in accordance with this Indenture to perform any function
which this Indenture authorizes the Trustee or such agent to
perform.
"Board of Directors" means, when used with respect to the
Company, the board of directors of the Company and, when used
with respect to LP&L, the board of directors of LP&L, or, in
either case, any committee of that board duly authorized to act
for it hereunder.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company or
LP&L, as the case may be, to have been duly adopted by the Board
of Directors of such entity and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or
Sunday or other day on which banks in New Orleans, Louisiana, New
York, New York or the cities in which the Indenture Trustee's
Offices (as defined in the respective Lease Indentures) are
located, are authorized or obligated to be closed.
"Change" with respect to any instrument means any consent,
amendment, waiver, approval, notice or direction or the
execution, grant or giving of any thereof.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" or "Company Order" means a written
request or order, as the case may be, signed in the name of the
Company by its President or one of its Vice Presidents, and by
its Treasurer, Secretary, or one of its Assistant Treasurers or
Assistant Secretaries, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time corporate trust business
of the Trustee shall be administered, which at the date of this
Indenture is Four Albany Street, New York, New York 10006,
Attention: Corporate Trust & Agency Group_Public Utilities Group,
or such other office as may be designated by the Trustee to the
Company, LP&L and each Securityholder.
"Event of Default" has the meaning specified in Section
8.01.
"Extension Letter" means the Extension Letter, to be dated
the date of the original issuance of a series of Pledged Lessor
Bonds and addressed to the Trustee by the parties to the
Participation Agreement in accordance with which such series of
Pledged Lessor Bonds was issued, extending to the Trustee the
representations, warranties and covenants of such parties
referred to in Section 10(c)(8) of such Participation Agreement.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the Security Register.
"Indenture" means this instrument as originally executed
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.
"Initial Interest Payment Date" with respect to any series
of Securities means the date of the Stated Maturity of the
initial installment of interest on Securities of such series.
"Installment Payment Amount", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means the amount of the
installment payment of principal due and payable on each
Installment Payment Date other than the Stated Maturity date
thereof.
"Installment Payment Date", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means each date on which an
installment payment of principal is due and payable on such
Security, as set forth in the Series Supplemental Indenture
creating the Securities of such series.
"LP&L" shall mean Louisiana Power & Light Company, a
Louisiana corporation, and its permitted successors and assigns.
"Lease" means each Lease identified in Exhibit A hereto, as
such Lease may be amended or supplemented from time to time
pursuant to the applicable provisions thereof; "Leases" means
each and every Lease.
"Lease Indenture" means each Lease Indenture identified in
Exhibit A hereto, as such Lease Indenture may be amended or
supplemented from time to time pursuant to the applicable
provisions thereof; "Lease Indentures" means each and every Lease
Indenture.
"Lease Indenture Estate" shall have the meaning set forth
in each Lease Indenture.
"Lease Indenture Trustee" means each Lease Indenture
Trustee identified in Exhibit A hereto, until a successor Lease
Indenture Trustee shall have become such pursuant to the
applicable provisions of the Lease Indenture to which such Lease
Indenture Trustee is a party, and thereafter "Lease Indenture
Trustee" means the successor Lease Indenture Trustee; "Lease
Indenture Trustees" means each and every Lease Indenture Trustee.
"Lease Payments" with respect to any Lease shall mean
amounts payable under such Lease in respect of (i) basic rent,
(ii) casualty value, (iii) special casualty value, (iv) any
amount determined by reference to casualty value or special
casualty value or (v) any other amounts payable in connection
with termination of such Lease, in each case as more fully
described in and assigned pursuant to the related Lease
Indenture; "Lease Payments" with respect to all Leases means the
aggregate of Lease Payments under any and all Leases.
"Lessor" or "Owner Trustee" means any Lessor or Owner
Trustee identified in Exhibit A hereto, until a successor shall
have become such pursuant to the applicable provisions of the
related Trust Agreement identified in such schedule, and
thereafter "Lessor" or "Owner Trustee" means such successor;
"Lessors" or "Owner Trustees" means each and every Lessor or
Owner Trustee.
"Lessor Bond" means any bond issued by a Lessor under a
Lease Indenture.
"Lien of this Indenture" or "lien hereof" means the lien
and security interest created by these presents, or created by
any concurrent or subsequent conveyance to the Trustee (whether
made by the Company or any other Person and whether pursuant to a
Series Supplemental Indenture or otherwise), or otherwise
created, making any property a part of the Pledged Property held
by the Trustee for the benefit of the Securities Outstanding
hereunder.
"Obligor", when used with reference to the Securities or
this Indenture, means LP&L and any successor to the obligations
of LP&L under a Lease, and does not include the Trustee, a Lease
Indenture Trustee, an Owner Trustee or an Owner Participant so
long as they have not assumed such obligations; provided,
however, that no reference to LP&L as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by LP&L.
"Officers' Certificate" means a certificate signed by the
President or any Vice President and the Treasurer, the Secretary,
any Assistant Treasurer or any Assistant Secretary of LP&L, any
Lessor or the Company, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel for
any Person either expressly referred to herein or otherwise
satisfactory to the Trustee which may include, without
limitation, counsel to the Company, any Lessor, any Lease
Indenture Trustee, any Owner Participant or LP&L, whether or not
such counsel is an employee of any of them.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof deemed to have been
paid within the meaning of Section 12.01 hereof; and
(iii) Securities which have been paid pursuant to Section
2.09 or in exchange for or in lieu of which other
Securities have been issued, authenticated and delivered
pursuant to this Indenture, other than any Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser 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, 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, Securities owned by the Company
or LP&L, or any Affiliate of either thereof, unless such Persons
own all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series, as the case may be,
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 Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which
have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or LP&L, or any Affiliate of
either thereof.
"Owner Participant" means any Owner Participant identified
in Exhibit A hereto, until a transferee, successor or assignee
thereof shall have become such pursuant to the applicable
provisions of the Participation Agreement to which such Owner
Participant is a party, and thereafter "Owner Participant" means
such transferee, successor or assignee; "Owner Participants"
means each and every Owner Participant.
"Participation Agreement" means each Participation
Agreement identified in Exhibit A hereto as such Participation
Agreement may be amended from time to time pursuant to the
applicable provisions thereof; "Participation Agreements" means
each and every Participation Agreement.
"Paying Agent" means any Person acting as Paying Agent
hereunder pursuant to Section 9.14.
"Person" means any individual, partnership, corporation,
trust, unincorporated association or joint venture, a government
or any department or agency thereof, or any other entity.
"Place of Payment", when used with respect to the
Securities of any series, means the office or agency maintained
pursuant to Section 5.02 and such other place or places, if any,
where the principal of and premium, if any, and interest on the
Securities of such series are payable as specified in the Series
Supplemental Indenture setting forth the terms of the Securities
of such series.
"Pledged Lessor Bond" means each Lessor Bond identified in
a schedule to a Series Supplemental Indenture, as such Lessor
Bond may be amended or supplemented from time to time pursuant to
the applicable provisions thereof, of the related Lease Indenture
and of this Indenture; "Pledged Lessor Bonds" means each and
every Pledged Lessor Bond.
"Pledged Property" has the meaning set forth in the
Granting Clauses.
"Predecessor Securities" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; for the
purposes of this definition, any Security authenticated and
delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Instruments" means the Pledged Lessor Bonds, the
Lease Indentures, the Participation Agreements and the Leases.
"Redeemed Securities" shall have the meaning specified in
Section 7.02.
"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 Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture and the terms of such Security.
"Regular Record Date" for the Stated Maturity of any
installment of interest on the Securities of any series or for
the Installment Payment Date of any installment of principal of
the Securities and any series for which principal is payable from
time to time without presentation or surrender means the 15th day
(whether or not a Business Day) of the month preceding the month
in which such Stated Maturity or Installment Payment Date, as the
case may be, occurs, or any other date specified for such purpose
in the Series Supplemental Indenture setting forth the terms of
the Securities of such series.
"Responsible Officer" shall mean when used with respect to
the Trustee, any officer within the Corporate Trust Office of the
Trustee including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Managing Director or any other
officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
"Security" or "Securities" shall have the meaning set forth
in the recitals hereto.
"Security Register" has the meaning specified in Section
2.08.
"Security Registrar" means any Person acting as Security
Registrar hereunder pursuant to Section 9.14.
"LP&L Request" means a written request or order, signed in
the name of LP&L by its President or one of its Vice Presidents
or Assistant Vice Presidents and by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant Secretaries or any
authorized agent of LP&L, and delivered to the Trustee.
"Series Supplemental Indenture" means an indenture
supplemental to this Indenture, for the purpose of, among other
things, specifying, in accordance with Article Two hereof, the
form of the Securities of any series and/or for the purpose of,
among other things, subjecting to the Lien of this Indenture the
Pledged Lessor Bonds related to such series; "Series Supplemental
Indentures" means each and every Series Supplemental Indenture.
"Sinking Fund" has the meaning specified in Section 7.02.
"Sinking Fund Redemption Date" shall have the meaning
specified in Section 7.02.
"Sinking Fund Requirements" shall have the meaning
specified in Section 7.02.
"Special Record Date" for the payment of any defaulted
interest or any defaulted Installment Payment Amount means a date
fixed by the Trustee pursuant to Section 2.10.
"Stated Maturity", when used with respect to the principal
of any Security or any installment of interest thereon, means the
date specified in such Security as the fixed date on which such
principal or such installment of interest is due and payable;
provided, however, that, with respect to any Security the
principal of which is payable in installments without presentment
or surrender, Stated Maturity shall mean the date specified in
such Security as the fixed date on which the final payment of
principal of such Security is due and payable.
"Trust Indenture Act" or "TIA" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed, except as provided in Section 11.06.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company, any Lessor
or LP&L to the Trustee to take any action under any provision of
this Indenture, the Company, such Lessor or LP&L, as the case may
be, shall furnish to the Trustee an Officers' 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 specifically
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
(other than certificates provided pursuant to Section 10.02
herein) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions therein 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
individual, he has made such examination or investigation
as is necessary to enable him 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 individual, such condition or covenant has been
complied with.
Section 1.03. 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, of
any Lessor or of LP&L may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is 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, of any Lessor or of LP&L, as the case
may be, stating that the information with respect to such factual
matters is in the possession of the Company, such Lessor or LP&L,
as the case may be, unless such counsel knows that the
certificate or opinion or representations with respect to such
matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other
opinion.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be 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 and to LP&L. 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 shall be sufficient for any
purpose of this Indenture and (subject to Section 9.01)
conclusive in favor of the Trustee, the Company and LP&L, if made
in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 13.06.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the certificate
of any notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer oaths
that the Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer.
If 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. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities
held by any Person, and the date or dates of holding the same,
shall be proved by the Security Register and the Trustee shall
not be affected by notice to the contrary.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Security shall bind the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof,
whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have
been delivered 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 the Holder of any Security 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 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 Securities of any series 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.
Section 1.05. Notices, etc., to Trustee, Company and LP&L.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(a) the Trustee by any Holder, by the Company, by LP&L
or by an Authorized Agent shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee, by any Holder, by LP&L
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee and LP&L by
the Company for such purpose, or
(c) LP&L by the Trustee, by any Holder, by the Company
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to LP&L addressed to it at the address of
its principal office specified in the first paragraph of
this instrument or at any other address previously
furnished in writing to the Trustee and the Company by LP&L
for such purpose.
Section 1.06. Notices to Holders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at such Holder's address 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, then such notification as shall be made
by overnight courier at the expense of the Company shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, 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.
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, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
Section 1.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required to be
included in this Indenture by, or is otherwise governed by, any
provision of the Trust Indenture Act, such required or governed
provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control.
Section 1.08. Effect of Heading 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 1.09. Successors and Assigns.
All covenants, agreements, representations and warranties
in this Indenture by the Company, LP&L and the Trustee, shall
bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed
or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, or the Holders of
Securities as expressly provided herein, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and each Security are being and will be
executed and delivered in the State of New York, shall be deemed
to be contracts made in such State and for all purposes shall be
construed in accordance with and governed by the laws of the
State of New York, except to the extent that laws of other
jurisdictions are mandatorily applicable.
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Installment Payment
Date or the Stated Maturity of principal of or any installment of
interest on any Security, or any date on which any defaulted
interest or principal is proposed to be paid, shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or such Security) payment of interest and/or principal
and premium, if any, shall be due and payable on the next
succeeding Business Day with the same force and effect as if made
on or at such nominal Redemption Date, Stated Maturity,
Installment Payment Date or date on which the defaulted interest
or principal is proposed to be paid, and no interest shall accrue
on the amount so payable for the period from and after such
Redemption Date, Stated Maturity, Installment Payment Date or
date for the payment of defaulted interest or principal, as the
case may be.
ARTICLE TWO
The Securities
Section 2.01. Form of Security to Be Established by Series
Supplemental Indenture.
The Securities of each series shall be substantially in the
form (not inconsistent with this Indenture, including Section
2.05 hereof) established in the Series Supplemental Indenture
relating to the Securities of such series.
Section 2.02. Form of Trustee's Authentication.
The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within mentioned Indenture.
________________________________________________
as Trustee
By______________________________________________
Authorized Officer
Dated
Section 2.03. Amount Unlimited; Issuable in Series; Limitations
on Issuance.
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. There
shall be established in one or more Series Supplemental
Indentures, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities) and the form or forms of Securities of
such series;
(2) any limit upon the aggregate principal amount of
the Securities of such series that 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 2.07, 2.08, 2.09, 6.06 or
11.07 and except for Securities which pursuant to Section
2.04 hereof, are deemed never to have been authenticated
and delivered hereunder);
(3) the date on which the principal of the Securities
of such series is payable and the date or dates on or as of
which the Securities of such series shall be dated, if
other than as provided in Section 2.13;
(4) the rate at which the Securities of such series
shall bear interest, or the method by which such rate shall
be determined, 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 for
the determination of Holders to whom interest is payable;
and the basis of computation of interest, if other than as
provided in Section 2.13;
(5) if other than as provided in Section 5.02, the
place or places where (1) the principal of and premium, if
any, and interest on Securities of such series shall be
payable, (2) Securities of such series may be surrendered
for registration of transfer or exchange and (3) notices
and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served;
and, if such is the case, the circumstances under which the
principal of such Securities shall be payable without
presentment or surrender;
(6) the price or prices at which, the period or
periods within which, and the terms and conditions upon
which Securities of such series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any
sinking fund, installment payment or analogous provisions
or at the option of a Holder thereof and the price or
prices at which and the period or periods within which, and
the terms and conditions upon which, Securities of the
series shall be redeemed, purchased or repaid in whole or
in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of
such series shall be issuable;
(9) any other terms of Securities of such series
(which terms shall not be inconsistent with the provisions
of this Indenture); and
(10) any trustees, authenticating or paying agents,
warrant agents, transfer agents or registrars with respect
to the Securities of such series.
Concurrently with the initial authentication and delivery
of the Securities of each series, the Company shall cause to be
delivered to the Trustee Lessor Bonds (a) issued as separate
series under one or more Lease Indentures, (b) payable as to
principal on such dates and in such amounts that on the Stated
Maturity of principal and each Sinking Fund Redemption Date or
Installment Payment Date of such Securities there shall be
payable on the Lessor Bonds an amount in respect of principal
equal to the principal amount of such Securities then to mature
or to be payable in installments of principal or be redeemed, (c)
bearing interest at the same rate and payable at the same times,
as the corresponding Securities of such series, (d) containing
provisions for redemption, including redemption premiums,
correlative to the provisions for redemption (other than pursuant
to a Sinking Fund) of the Securities of such series and (e)
registered in the name of the Trustee.
Section 2.04. Authentication and Delivery of Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
shall thereupon authenticate and deliver such Securities in accor
dance with such Company Order, without any further action (other
than as set forth in Section 2.04(b)) by the Company. Subject to
Section 9.14(b) hereof, no Security shall be secured by or
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, in the form provided for herein,
executed manually by the Trustee and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee (and, if applicable, the
Authenticating Agent) shall be entitled to receive, and (subject
to Section 9.01) shall be fully protected in relying upon:
(a) an executed Series Supplemental Indenture;
(b) an Officers' Certificate of the Company (i)
certifying as to resolutions of the Board of Directors of
the Company authorizing the execution and delivery by the
Company of such Series Supplemental Indenture and the
issuance of such Securities, (ii) certifying that all
conditions precedent under this Indenture to the Trustee's
(or, if applicable, the Authenticating Agent's)
authentication and delivery of such Securities have been
complied with and (iii) certifying that the terms of the
documents referred to in clauses (c) and (d) below are not
inconsistent with the terms of this Indenture as then and
theretofore supplemented;
(c) fully executed counterparts (but not the originals
thereof) of (i) the Lease Indentures under which were
issued the Pledged Lessor Bonds relating to the Securities
of such series and (ii) the Leases relating to such Pledged
Lessor Bonds;
delivered (i) to the Company in connection with its
purchase of the Pledged Lessor Bonds relating to the
Securities of such series, (ii) to the Owner Trustee and/or
the Lease Indenture Trustee in connection with the issuance
of such Pledged Lessor Bonds, and (iii) to the extent not
covered by such opinions, opinions of Counsel to the
Company or LP&L (x) to the effect that (1) the form or
forms and the terms of such Securities have been
established by a Series Supplemental Indenture as permitted
by Sections 2.01 and 2.03 in conformity with the provisions
of this Indenture, (2) such Securities, when authenticated
and delivered by the Trustee (or, if applicable, the
Authenticating Agent) and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Company, except to the extent that the
enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereafter in effect relating to
creditors' rights generally and (3) all requirements of the
laws of the States of New York and Louisiana and of the
General Corporation Law of the State of Delaware and of
this Indenture, in respect of the execution and delivery by
the Company of the Securities, have been complied with and
(y) concerning such other matters as the Trustee may
reasonably request;
(f) duly executed Extension Letters relating to the
Pledged Lessor Bonds; and
(g) in circumstances where the Pledged Lessor Bonds
relating to such series of Securities are executed and
delivered for the purposes described in Section 8(f) of the
Facility Lease, (i) a certificate of an independent public
Trustee (who shall not be an employee of the Company, or
LP&L or any Affiliate of either thereof) to the effect that
the principal amount of Securities to be authenticated does
not exceed the Undivided Interest Percentage (as defined in
such Lease Indenture) of total cost (including allowance
for funds used during construction, or any analogous
amount, to the extent permitted by generally accepted
accounting principles) of any related Capital Improvement
(as defined in such Lease Indenture) financed with the
proceeds of such Pledged Lessor Bonds and (ii) a
certificate of an engineer, appraiser or other expert (who
may be an officer or employee of LP&L and who shall not be
required to be independent, except as would be required by
Section 314(d)(3) of the Trust Indenture Act) to the effect
that the Undivided Interest Percentage of the fair value of
any such Capital Improvement as of its respective date of
incorporation or installation was not less than the
Undivided Interest Percentage of the total cost (including
allowance for funds used during construction, or any
analogous amount, to the extent permitted by generally
accepted accounting principles) of such Capital Improvement
as of the date financed with the proceeds of such Pledged
Lessor Bonds.
Receipt by the Trustee of the Officers' Certificate
referred to in clause (b) above shall be conclusively presumed
for all purposes of this Indenture to establish that the
documents referred to in such Officers' Certificate comply with
the requirements of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 2.12
together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and
sold by the Company, 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 2.05. Form and Denominations.
The Securities of each series shall be in registered form
and may have such letters, numbers or other marks of
identification and such legends or endorsements thereon as may be
required to comply with the rules of any securities exchange or
to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of
the Company or by the officers executing such Securities, as
evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution thereof.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided herein or in the Series Supplemental Indenture
setting forth the terms of the Securities of such series.
In the absence of any provision contained in any Series
Supplemental Indenture, the Securities are issuable only in
denominations of $1,000 and/or any integral multiple thereof.
Section 2.06. Execution of Securities.
The Securities shall be executed on behalf of the Company
by its President or one of its Vice Presidents, under its
corporate seal affixed thereto or reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries. The
signature of any or all such officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time relevant to the authorization
thereof the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the
date of such Securities.
Section 2.07. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the
Trustee shall authenticate and deliver, temporary Securities of
such series which are printed, lithographed, typewritten,
photocopied or otherwise produced in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued (with or without the recital of specific
redemption or sinking fund provisions) and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by
their execution thereof.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained for such
purpose at the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall
execute, and the Trustee shall authenticate and deliver in
exchange therefor, definitive Securities of such series of
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and of like tenor.
Section 2.08. Registration, Transfer and Exchange.
The Company shall cause to be kept at the office of the
Security Registrar a register in which, subject to such
reasonable regulations as the Company may prescribe, the Company
shall provide for the registration of Securities and of
registration of transfers and exchanges of Securities and, with
respect to Securities of any series the principal of which is
payable without presentation or surrender, the amount of the
unpaid principal amount of such Securities. This register and,
if there shall be more than one Security Registrar, the combined
registers maintained by all such Security Registrars, are herein
sometimes referred to as the "Security Register".
Upon surrender for registration of transfer of any Security
of any series at any office or agency maintained for such purpose
pursuant to Section 5.02, 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, of authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at any office or agency maintained for such purpose
pursuant to Section 5.02. 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 issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
security and 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 exchange shall (if so required by the Company or the
Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and Security Registrar or any
transfer agent, duly executed, by the Holder thereof or his
attorney duly authorized in writing.
Except as may be otherwise provided in the Series
Supplemental Indenture relating to the Securities of any series,
no service charge shall be made for any transfer or exchange of
Securities, but the Security Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of
Securities other than exchanges pursuant to Sections 2.07, 6.06
or 11.07 not involving any transfer.
Neither the Company, the Trustee nor the Security Registrar
shall be required (i) to execute and deliver, issue, register the
transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 6.02 or 7.02
and ending at the close of business on the day of such mailing or
(ii) to issue, register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security selected for redemption in
part.
Section 2.09. 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 of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Trustee, the Company and
LP&L (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 required by them to save any of
them and any agent of any of them harmless, then, in the absence
of notice to the Trustee, the Company or LP&L that such Security
has been acquired by a bona fide purchaser, 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 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 is about to become due and
payable, the Company in its discretion may, 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 expenses connected therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
security and benefits of this Indenture equally and
proportionately with any and all other Securities 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 2.10. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, at any Stated Maturity of
an installment of interest 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. At the option of the Company, payment of
interest on any Security may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register or in such other manner as shall
be established in a Series Supplemental Indenture creating the
series of which such Security is a part.
Any Installment Payment Amount or any interest on any
Security of any series which is payable, but is not punctually
paid or duly provided for, at any Installment Payment Date or any
Stated Maturity of an installment of interest, as the case may
be, shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder
to the extent that the Company has elected to pay such defaulted
interest or principal as provided in clause (a) or (b) below:
(a) The Company may elect, which election shall be at
the direction of any Owner Trustee whose Pledged Lessor
Bond is in default in respect of the payment of interest or
principal and which is proposing to make payment of all or
part of such defaulted interest or principal, to make
payment of any defaulted interest or principal to the
Persons in whose names the Securities of such series in
respect of which interest is in default (or their
respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment
of such defaulted interest or principal, which shall be
fixed in the following manner. Such Owner Trustee shall
notify the Trustee and, if other than the Trustee, the
Paying Agent, in writing of the amount of defaulted
interest or principal proposed to be paid on each such
Security and the date of the proposed payment, and at the
same time there shall be deposited with the Trustee an
amount of money equal to the aggregate amount proposed to
be paid in respect of such defaulted interest or principal,
as the case may be, or there shall be made 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 or principal as in this clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such defaulted interest or
principal which shall be not more than 15 nor 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, LP&L and the Security Registrar of such
Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of
such defaulted interest or principal and the Special Record
Date therefor to be mailed, first-class postage prepaid, to
each Holder 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 or principal and the
Special Record Date therefor having been mailed as
aforesaid, 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 and shall
no longer be payable pursuant to the following clause (b).
(b) The Company may make, or cause to be made, payment
of any defaulted Installment Payment Amount or any
defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities in respect of which such
principal or interest is in default 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 paragraph, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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, and each such
Security shall bear interest from whatever date shall be
necessary so that neither gain nor loss in interest shall result
from such registration of transfer, exchange or replacement.
Section 2.11. Persons Deemed Owners.
The Person in whose name any Security is registered shall
be deemed to be the owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and
(subject to Section 2.10) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, regardless of any notice to anyone to the contrary.
Section 2.12. Cancellation.
All Securities surrendered for payment, redemption, credit
against any Sinking Fund payment or registration of transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The
Company may at any time deliver to the Trustee 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 all Securities so
delivered shall be promptly canceled by the Trustee. 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 Securities canceled
by the Trustee shall be disposed of in accordance with the
customary practice of the Trustee, and the Trustee shall promptly
deliver a certificate of disposition to the Company, unless, by a
timely Company Order, the Company shall direct that canceled
Securities be disposed of otherwise. The Trustee shall promptly
deliver written evidence of any cancellation of a Security in
accordance with this Section 2.12 to the Company.
Section 2.13. Dating of Securities; Computation of Interest.
(a) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, each
Security of any series shall be dated the date of its
authentication.
(b) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, 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 2.14. Source of Payments; Rights and Liabilities of
Lessors, Owner Participants and Lease Indenture
Trustees.
Except as otherwise specifically provided in this
Indenture, all payments of principal and premium, if any, and
interest to be made in respect of the Securities or under this
Indenture shall be made only from Pledged Property or the income
and proceeds received by the Trustee therefrom. Each Holder, by
its acceptance of a Security shall be deemed to have agreed that
(a) it will look solely to the Pledged Property or the income and
proceeds received by the Trustee therefrom to the extent
available for distribution to such Holder as herein provided and
(b) none of any Owner Participant, any Owner Trustee, any Lease
Indenture Trustee or the Trustee is liable to any Holder or, in
the case of any Owner Participant, Owner Trustee or Lease
Indenture Trustee, to the Trustee for any amounts payable under
any Security or, except as provided herein with respect to the
Trustee, for any liability under this Indenture. No Owner
Participant, Owner Trustee or Lease Indenture Trustee shall have
any duty or responsibility under this Indenture or the Securities
to any Holder or to the Trustee.
Section 2.15. Application of Proceeds from the Sale of
Securities.
The Company shall pay, or cause to be paid, the proceeds of
the issuance and sale of the Securities of each series to each
Lease Indenture Trustee under a Lease Indenture under which
Pledged Lessor Bonds shall have been issued and delivered to the
Trustee in connection with the issuance of such Securities, for
the account of the related Owner Trustee which issued such
Pledged Lessor Bonds, each such Lease Indenture Trustee to
receive an amount equal to the aggregate principal amount of such
Pledged Lessor Bonds.
Section 2.16. Principal Amount of Securities Payable Without
Presentment or Surrender
All references in this Indenture to the principal amount of
any Security shall, when used with respect to Securities of any
series the principal of which is payable without presentation or
surrender, mean the unpaid principal amount thereof, except that,
for purposes of Sections 2.07, 2.08,2.09 and 6.06 of this
Indenture, principal amount shall, when used with respect to any
such Security, refer to the original principal amount thereof
prior to the payment of any Installment Payment Amounts.
Notwithstanding anything herein or in any Security to the
contrary, with respect to each Security of any series the
principal of which is payable without presentation or surrender,
the unpaid principal amount thereof recorded on the Security
Register shall be controlling as to the remaining unpaid
principal amount thereof.
ARTICLE THREE
Provisions as to Pledged Property
Section 3.01. Holding of Pledged Securities.
The Trustee is authorized in its discretion to cause to be
registered (as to principal) in its name, as Trustee, or in the
name of its nominee, any and all coupon bonds which it may
receive as part of the Pledged Property, or it may cause the same
to be exchanged for registered bonds without coupons of any
denomination. The Trustee is authorized in its discretion to
cause to be registered in its name, as Trustee, or in the name of
its nominee, any and all registered bonds which it may receive as
part of the Pledged Property, or may cause such registered bonds
to be exchanged for coupon bonds. The Company will deliver
promptly to the Trustee such documents, certificates and opinions
as the Trustee may reasonably request in connection with
subjection of any securities to the lien of this Indenture to the
extent contemplated hereby.
Section 3.02. Disposition of Payments on Pledged Property
Unless and until all Outstanding Securities have been paid
in full or provision for the payment of such Securities has been
made in accordance with this Indenture, the Trustee shall be
entitled to receive all principal, premium, if any, and interest
paid in respect of any Pledged Lessor Bonds and interest paid on
bonds or other obligations or indebtedness which may be subject
to the lien of this Indenture and shall apply the same to the
payment of the principal of and premium, if any, and interest on
the Securities when and as they become due and payable pursuant
to, and in accordance with, this Indenture. The Trustee shall
duly note on the schedules attached to the Pledged Lessor Bonds
or by other appropriate means all payments of principal, premium,
if any, and interest made on the Pledged Lessor Bonds.
Section 3.03. Exercise of Rights and Powers Under Pledged Lessor
Bonds and Lease Indentures.
The Trustee shall not take any action as the holder of the
Pledged Lessor Bonds to direct any Lease Indenture Trustee in any
respect or to vote any Pledged Lessor Bond or any portion thereof
except as specified in this Section. The Trustee shall give
notice to the Holders of the occurrence of any event of default
or default under any Lease Indenture, and of every Event of Loss
or Deemed Loss Event or Financial Event occurring under a Lease
(as such terms are therein defined), but only to the extent the
same shall actually be known by a Responsible Officer. The
Trustee may, at any time, and shall, upon the written request of
any Lease Indenture Trustee made to the Trustee to give any
direction or to vote its interest in the Pledged Lessor Bonds,
request from Holders directions as to (a) whether or not to
direct such Lease Indenture Trustee to take or refrain from
taking any action which holders of Pledged Lessor Bonds have the
option to direct and (b) how to vote any Pledged Lessor Bond if a
vote has been called for with respect thereon. In addition, any
Holder may at any time request the Trustee to direct, or to
participate in the direction of, any action under any Lease
Indenture to the extent that the Trustee may do so under such
Lease Indenture. Upon receiving from Holders any written
directions as to the taking or the refraining from taking, of any
action, or the voting of any Pledged Lessor Bond, the Trustee
shall specify to the related Lease Indenture Trustee the
principal amount of the Pledged Lessor Bond which is in favor of
the action or vote, the principal amount of the Pledged Lessor
Bond which is opposed to the action or vote, and the principal
amount of the Pledged Lessor Bond which is not taking any
position for the action or vote. Such principal amounts shall be
determined by allocating to the total principal amount of the
Pledged Lessor Bonds with respect to which direction is to be
given the proportionate principal amount of Securities taking
corresponding positions or not taking any position, based on the
aggregate principal amount of Outstanding Securities.
Section 3.04. Certain Actions in Case of Judicial Proceedings.
In case all or any part of the property of any Lessor or
any other Person which may be deemed an obligor in respect of the
Pledged Lessor Bonds shall be sold at any judicial or other
involuntary sale, the Trustee shall receive any portion of the
proceeds of such sale payable in respect of the Pledged Property,
and such proceeds shall be held as provided in Section 3.05.
Section 3.05. Cash Held by Trustee Treated as a Deposit.
Any and all cash held by the Trustee under any provision of
this Indenture shall be treated by the Trustee, until required to
be paid out hereunder, as a deposit, in trust, without any
liability for interest.
ARTICLE FOUR
Withdrawal of Collateral
Section 4.01. Withdrawal of Collateral.
Except as provided in Section 4.02, none of the Pledged
Property shall be subject to withdrawal unless and until all
Outstanding Securities have been paid in full or provision for
such payment has been made in accordance with the terms of this
Indenture and the Trustee shall have received the documents and
opinions required by Section 4.02 or Article Twelve.
Section 4.02. Reassignment of Pledged Lessor Bonds upon Payment.
Upon receipt of payment in full of the principal of and
premium, if any, and interest on any Pledged Lessor Bond held by
the Trustee, the Trustee shall deliver to the Company said
Pledged Lessor Bond and any instrument of transfer or assignment
necessary to reassign to the Company said Pledged Lessor Bond and
the interest of the Company, if any, in the Lease Indenture
relating thereto; provided, however, that nothing herein
contained shall prevent the Trustee from presenting any Pledged
Lessor Bond to the related Lease Indenture Trustee for final
payment in accordance with the applicable provisions of the
related Lease Indenture.
ARTICLE FIVE
Covenants
Section 5.01. Payment of Principal, Premium, if any, and
Interest.
The Company shall duly and punctually pay, or cause to be
paid, the principal of and premium, if any, and interest on the
Securities in accordance with the terms of the Securities and
this Indenture, subject, however, to Section 2.14 hereof.
Section 5.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York, and in such other Places of Payment as shall be
specified for the Securities of any series, an office or agency
where Securities may be presented or surrendered for payment of
principal, premium, if any, and interest, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of
Securities and this Indenture may be served. The Corporate Trust
Office is hereby initially designated as one such office or
agency. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of
each such office or agency and prompt notice to the Holders in
the manner specified in Section 1.06. If at any time the Company
shall fail to maintain any such office or agency, or shall fail
to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served by the Corporate Trust Office, and the Company hereby
appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that 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 1.06, of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 5.03. Money for Security Payments to be Held in Trust.
All moneys deposited with the Trustee or with any Paying
Agent for the purpose of paying the principal of or premium (if
any) or interest on Securities shall be deposited and held in
trust for the benefit of the Holders of the Securities entitled
to such principal, premium (if any) or interest, subject to the
provisions of this Indenture. Moneys so deposited and held in
trust shall not be a part of the Pledged Property but shall
constitute a separate trust fund for the benefit of the Holders
of the relevant Securities.
The Company may at any time direct any Paying Agent to pay
to the Trustee all sums held in trust by such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent, 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 in
trust for the payment of the principal of or premium, if any, or
interest on any Security and remaining unclaimed for two years
(or such lesser period as may be required by law to give effect
to this provision) after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request (to the extent such monies shall have been deposited by
the Company) or to any other Person on its written request (to
the extent such monies shall have been deposited by such other
Person), and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company or such
other Person, as the case may be, for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such repayment, shall, at the expense of the Company or, to
the extent such monies are to be paid to another Person, such
other Person, cause to be published once, in an Authorized
Newspaper in The City of New York and each other city, if any, in
which a Place of Payment is located, notice that such money
remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company or such other Person. As used herein, "Authorized
Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily
published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in The
City of New York and each other city, if any, in which a Place of
Payment is located. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice as
herein provided, then such notification as shall be given with
the approval of the Trustee shall constitute sufficient notice.
Section 5.04. Maintenance of Corporate Existence.
The Company, at its own cost and expense, will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises,
except as otherwise specifically permitted in this Indenture,
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof will not have any material adverse
effect on the Holders of the Securities.
Section 5.05. Protection of Pledged Property
The Company and LP&L will from time to time execute and
deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of
further assurance and other instruments as shall be necessary to
(i) make more effective the pledge and assignment
hereunder of all or any portion of the Pledged Property,
(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof,
(iii) perfect, publish notice of or protect the validity of
any grant made or to be made by this Indenture,
(iv) enforce any of the Securities, or
(v) preserve and defend title to any Securities or other
instrument included in the Pledged Property and the rights
of the Trustee, and of the Holders, in such Securities or
other instrument against the claims of all persons and
parties.
Each of the Company and LP&L hereby designates the Trustee its
agent and attorney-in-fact to execute any financing statement,
continuation statement or other instrument required pursuant to
this Section.
Section 5.06. Opinions as to Pledged Property
Promptly after the execution and delivery of this Indenture
and of each Series Supplemental Indenture or other supplemental
indenture or other instrument of further assurance, the Company
shall furnish to the Trustee such Opinion or Opinions of Counsel
as the Trustee may reasonably request stating that, in the
opinion of such Counsel, this Indenture and all such Series
Supplemental Indentures, other supplemental indentures and other
instruments of further assurance have been properly recorded,
filed, re-recorded and re-filed to the extent necessary to make
effective the lien intended to be created by this Indenture, and
reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, and stating
that all financing statements and continuation statements have
been executed and filed that are then necessary fully to preserve
and protect the rights of the Holders and the Trustee, or stating
that, in the opinion of such Counsel, no such action is necessary
to make such lien effective.
On or before May 1, in each calendar year, beginning with
the first calendar year commencing more than three months after
the date of authentication and delivery of any Securities, the
Company shall furnish to the Trustee such Opinion or Opinions of
Counsel as are reasonably satisfactory to the Trustee, either
stating that, in the opinion of such Counsel, such action has
been taken with respect to the recording, filing, re-recording
and re-filing of this Indenture, any Series Supplemental
Indenture and any other requisite documents and with respect to
the execution and filing of any financing statements and
continuation statements as is then necessary to maintain the lien
and security interest created by this Indenture with respect to
the Pledged Property and reciting the details of such action or
stating that, in the opinion of such Counsel, no such action is
then necessary to maintain such lien and security interest. Such
Opinion or Opinions of Counsel shall also describe the recording,
filing, re-recording and re-filing of this Indenture, any Series
Supplemental Indenture and any other requisite documents and the
execution and filing of and financing statements and continuation
statements that will, in the opinion of such Counsel, be required
to maintain the lien of this Indenture with respect to the
Pledged Property until in the following calendar year.
Section 5.07. Performance of Obligations.
Neither the Company nor LP&L will take or omit to take any
action the taking or omission of which would release any Person
from any of such Person's covenants or obligations under
instruments included in the Pledged Property, or which would
result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effective
ness of, any such instrument, except as expressly provided in
this Indenture or such instrument.
Section 5.08. Negative Covenants.
During such time as any Security issued hereunder is
Outstanding, the Company will not:
(a) sell, transfer, exchange or otherwise dispose of
any portion of the Pledged Property except as expressly
permitted by this Indenture;
(b) (i) engage in any business or activity (A) other
than in connection with, or relating to, the issuance of
Securities pursuant to this Indenture and application of
the proceeds thereof as herein provided or (B) which would
cause the Company to be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended
or (ii) amend Article Third, Fourth or Sixth of its
Certificate of Incorporation as in effect on the date of
execution and delivery of this Indenture; notwithstanding
the foregoing, however, the Company may, with respect to
the Securities of one or more series enter into credit or
liquidity support facilities (including, but without
limitation, bank letters of credit, bank lines of credit,
surety bonds and bonds of insurance);
(c) issue bonds, notes or other evidences of
indebtedness other than (A) Securities issued hereunder or
(B) evidences of indebtedness permitted by clause (b)
above;
(d) assume or guarantee any indebtedness of any
Person;
(e) dissolve or liquidate in whole or in part;
(f) take any action which would (i) permit the
validity or effectiveness of this Indenture or the pledge
and assignment of any of the Pledged Property to be
impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any
covenant or obligation under this Indenture, (ii) permit
any lien, charge, security, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Pledged
Property or any part thereof or any interest therein or the
proceeds thereof or (iii) permit the lien of this Indenture
not to constitute a valid first priority security interest
in the Pledged Property; or
(g) institute any proceedings to be adjudicated a
bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a
petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other
applicable federal or state law or law of the District of
Columbia, or consent to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Company or any substantial part of its property, or make an
assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they
become due, or take any corporate action in furtherance of
the foregoing.
Section 5.09. Annual Statement as to Compliance.
(a) Each of LP&L and the Company shall deliver to the
Trustee, not less often than annually, a brief certificate from
its principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of its
compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph (a), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(b) Each of LP&L and the Company shall deliver to the
Trustee, promptly after having obtained knowledge thereof,
written notice of any Event of Default under Section 8.01 or
event which with the giving of notice or lapse of time, or both,
would become an Event of Default.
Section 5.10. Delivery of Certificate of Independent Public
Accountant.
LP&L shall cause to be delivered to the Trustee any
certificate of an independent certified public accountant (who
shall not be an employee of the Company, LP&L or any Affiliate of
either of them) delivered to any Lease Indenture Trustee pursuant
to Section 11.01(a) of any Lease Indenture.
Section 5.11. Delivery of Certificate of Engineer, Appraiser or
Other Expert.
In connection with any release from the security and other
interest created by any Lease Indenture of a portion of the Lease
Indenture Estate (as defined in such Lease Indenture) pursuant to
Section 13.01 and 13.02 of such Lease Indenture, at its own
expense LP&L shall cause to be delivered to the Trustee a
certificate of an engineer, appraiser or other expert as to the
fair value of any portion of the Lease Indenture Estate to be
released from the lien of such Lease Indenture and such
certificate shall state that in the opinion of the Person making
the same the proposed release will not impair the security under
such Lease Indenture in contravention of the provisions thereof.
If the fair value of the portion of the Lease Indenture Estate to
be released and all other portions of the Lease Indenture Estate
released since the commencement of the then current calendar
year, as set forth in the certificate required pursuant to this
Section 5.11, is 10% or more of the aggregate principal amount of
Securities at the time Outstanding, such certificate shall be
made by an independent engineer, appraiser or other expert;
provided, however, that a certificate of an independent engineer,
appraiser or other expert shall not be required in the case of
any release of portions of the Lease Indenture Estate if the fair
value thereof as set forth in the certificate or opinion required
by this Section 5.11 is less than $25,000 or less than 1% of the
aggregate principal amount of Securities at the time Outstanding.
ARTICLE SIX
Redemption of Securities
Section 6.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity of principal shall be redeemable in accordance
with their terms and (except as otherwise specified in the Series
Supplemental Indenture creating such series) in accordance with
this Article.
Section 6.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
otherwise than through a Sinking Fund shall be evidenced by a
Company Order. 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), deliver to the Trustee a
Company Order specifying such Redemption Date and the series and
principal amount of 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 Officers' Certificate evidencing compliance with
such restriction or condition. The election by LP&L to terminate
a Lease pursuant to Section 13(f) or (g) or Section 14 thereof,
or Section 16(d)(5) of the related Participation Agreement, shall
constitute an election by the Company to redeem Securities (but
shall not relieve the Company of its obligation hereunder to
deliver to the Trustee the Company Order herein provided for)
subject, however, except in the case of a termination pursuant to
Section 14 of such Lease, to the right of LP&L to assume the
Lessor Bonds related to such Lease on the Lease termination date,
in which event there shall be no redemption of Securities solely
as a consequence of such termination.
Section 6.03. Selection by Trustee of Securities to be Redeemed
(a) If any Lease is to be terminated pursuant to Section
13(f) or (g) or Section 14 thereof, or Section 16(d)(5) of the
related Participation Agreement, and all Lessor Bonds issued
under the related Lease Indenture are to be prepaid, the Company
shall redeem Securities which (i) are of the series corresponding
to the series of Pledged Lessor Bonds to be so prepaid and (ii)
have amounts of principal payable on Stated Maturities and
Sinking Fund Redemption Dates or Installment Payment Dates which
correspond to the amounts and dates for the payment of the
principal of such Pledged Lessor Bonds plus any accrued interest
to the Redemption Date, such redemption of Securities to be made
on the date on which such Lessor Bonds are to be so prepaid.
(b) If less than all the Securities are to be redeemed
otherwise than as contemplated in subsection (a) of this Section
6.03 and otherwise than through a Sinking Fund, the particular
Securities to be redeemed shall be selected from the series and
Stated Maturities, and in the principal amounts, designated to
the Trustee in the Company Order required by Section 6.02.
(c) Subject to the provisions of subsections (a) and (b)
of this Section 6.03, if less than all the Securities of any
series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by lot in
such manner as shall provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of such series except as otherwise specified in the
Series Supplemental Indenture creating such series; provided,
however, that if the Company, LP&L or an Affiliate or nominee of
either thereof shall be the Holder of Securities of any series to
be redeemed through a Sinking Fund, the Trustee, if so directed
in a Company Order or LP&L Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
LP&L Order shall state that such redemption is in accordance with
Section 9(b)(3)(iv) of each Participation Agreement.
If more than one Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section 16(d)(5)
of the related Participation Agreement, and the Lessor Bonds
relating to each such Lease are to be prepaid on the same date,
the Trustee shall separately designate the Securities to be
redeemed in respect of each such Lease termination.
The Trustee shall promptly notify the Company 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 6.04. Notice of Redemption
Notice of redemption (including Sinking Fund redemption)
shall be given in the manner provided in Section 1.06 to the
Holders of Securities to be redeemed not less than 20 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 Outstanding Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed, including the series
and Stated Maturity of principal, and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price
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
(f) that the redemption is pursuant to the operation
of a Sinking Fund, if such is the case.
With respect to any notice of redemption of Securities
otherwise than through a Sinking Fund, unless, upon the giving of
such notice, such Securities shall be deemed to have been paid in
accordance with Section 12.01, such notice shall state that such
redemption shall be conditional upon the receipt by the Trustee,
on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and
interest 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.
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 Trustee in the name
and at the expense of the Company.
Section 6.05. 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) such Securities or portions thereof 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 at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however,
that 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
2.10.
Section 6.06. Securities Redeemed in Part
Any Security which is to be redeemed only in part shall be
surrendered 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), and 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, 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 SEVEN
Sinking Funds
Section 7.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series
except as otherwise specified in the Series Supplemental
Indenture creating the Securities of such series.
Section 7.02. Sinking Funds for Securities.
Any Series Supplemental Indenture may provide for a sinking
fund for the retirement of the Securities of the series created
thereby (herein called a "Sinking Fund") in accordance with which
the Company will be required to redeem on the dates set forth
therein (hereinafter called "Sinking Fund Redemption Dates")
Securities of principal amounts set forth therein (hereinafter
called "Sinking Fund Requirements").
If there shall have been a redemption, otherwise than
through a Sinking Fund, of less than all the Securities of a
series to which a Sinking Fund is applicable (such redeemed
Securities being hereinafter called the "Redeemed Securities"),
the Sinking Fund Requirements relating to the Securities of such
series for each Sinking Fund Redemption Date thereafter shall be
deemed to have been satisfied to the extent of an amount equal to
the quotient resulting from the division of (A) the product of
(w) the principal amount of the Redeemed Securities and (x) such
Sinking Fund Requirement by (B) the sum of (y) the aggregate
principal amount of Securities of such series then Outstanding
(after giving effect to such redemption) and (z) the principal
amount of such Redeemed Securities; provided, however, that the
remaining Sinking Fund Requirements determined as set forth in
this paragraph shall be rounded to the nearest integral multiple
of the minimum authorized denomination for Securities of such
series, subject to necessary adjustment so that the aggregate
principal amount of such satisfaction of Sinking Fund
Requirements shall be equal to the aggregate principal amount of
such Redeemed Securities, such adjustment to such Sinking Fund
Requirements to be made in the inverse order of the respective
Sinking Fund Redemption Dates corresponding thereto and;
provided, further, that, notwithstanding the provisions of the
foregoing proviso, any such adjustment shall be made in a manner
such that, after giving effect thereto, the provisions of clause
(b) of the last paragraph of Section 2.03 hereof shall continue
to be complied with.
Particular Securities to be redeemed through a Sinking Fund
shall be selected in the manner provided in Section 6.03, and
notice of such redemption shall be given in the manner provided
in Section 6.04.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 8.01. Events of Default.
"Events of Default", wherever used herein, means any one of
the following events:
(a) failure to pay any interest on any Security when
it becomes due and payable, and the continuation of such
failure for a period of 10 days; or
(b) failure to pay principal of or premium, if any, on
any Security when it becomes due and payable, whether at
its Stated Maturity of principal, on any applicable
Redemption Date or Installment Payment Date or at any other
time, and the continuation of such failure for a period of
10 days; or
(c) failure on the part of either the Company or LP&L
to perform or observe any covenant or agreement herein to
be performed or observed by it, and the continuation of
such failure for a period of 30 days after notice thereof
shall have been given to the Company or LP&L, as the case
may be, by the Trustee, or to the Company or LP&L, as the
case may be, and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities,
specifying such failure and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; provided, however, that the continuation of such
failure for a period of 30 days or more after such notice
has been so given (but in no event for a period which is
greater than one year after such notice has been given)
shall not constitute an Event of Default if (i) such
failure can be remedied but cannot be remedied within such
30 days, (ii) the Company or LP&L, as the case may be, is
diligent in pursuing a remedy of such failure and (iii)
such failure does not impair in any respect the lien and
security interest created hereby; or
(d) the occurrence of an "Event of Default" under any
Lease Indenture; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the
Federal Bankruptcy Act or any other applicable federal or
state law or law of the District of Columbia, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any
substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuation of
any such decree or order unstayed and in effect for a
period of 75 consecutive days; or
(f) the institution by the Company of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable federal
or state law or law of the District of Columbia, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other 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 taking of
corporate action by the Company in furtherance of any such
action.
Section 8.02. Acceleration of Maturity; Rescission and
Annulment.
Upon the occurrence of an Event of Default, (a) if such
Event of Default is one referred to in clause (a), (b), (c), (e)
or (f) of Section 8.01, the Trustee may, and upon the direction
of the Holders of not less than a majority in principal amount of
the Securities Outstanding, shall, and (b) if such Event of
Default is the one referred to in clause (d) of Section 8.01
(including without limitation an event of default under any Lease
which has resulted in an Event of Default referred to in clause
(a) or (b) of Section 8.01) under circumstances in which the
related Pledged Lessor Bonds have been declared immediately due
and payable, the Trustee, shall declare the principal of all the
Securities to be due and payable immediately, by a notice in
writing to the Company and LP&L, and upon any such declaration
such principal shall become immediately due and payable; provided
that no such declaration shall be made (and no action under
Section 8.03 or 8.05 shall be taken) in cases in which the Event
of Default is one referred to in clause (a) or (b) of Section
8.01 which resulted directly from a failure of LP&L to make any
payment of rent under any Lease until such time as the Lessor
under such Lease has been given the opportunity to exercise its
rights under Section 7.16 of the related Lease Indenture.
At any time after such a declaration of acceleration has
been made and before any sale of the Pledged Property, or any
part thereof, shall have been made pursuant to any power of sale
as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) there shall have been paid to or deposited with
the Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
Securities,
(B) the principal of and premium, if any, on any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the
respective rates provided in the Securities for late
payments of principal or premium,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest at the respective rates provided in the
Securities for late payments of interest, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and
(2) all Events of Default, other than the non-payment
of the principal of Securities which have become due solely
by such acceleration, have been cured or waived as provided
in Section 8.08.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
If a declaration of acceleration shall have been rescinded
and annulled as provided in the next preceding paragraph, and if,
prior to such rescission and annulment, the maturity of the
Pledged Lessor Bonds issued under any Lease Indenture had been
accelerated as a result of an "Event of Default" thereunder, the
Trustee, as the holder of such Pledged Lessor Bonds, shall direct
the Lease Indenture Trustee under such Lease Indenture to rescind
and annul such acceleration of such Pledged Lessor Bonds and to
terminate any proceedings to enforce remedies under such Lease
Indenture and the related Lease.
Section 8.03. Trustee's Power of Sale of Pledged Property;
Notice Required; Power to Bring Suit.
If an Event of Default shall have occurred and be
continuing, subject to the provisions of Sections 8.06 and 8.07
and the proviso to the first paragraph of Section 8.02, the
Trustee, by such officer or agent as it may appoint, may:
(1) sell, to the extent permitted by law, without
recourse, for cash or credit or for other property, for
immediate or future delivery, and for such price or prices
and on such terms as the Trustee in its discretion may
determine, the Pledged Property as an entirety, or in any
such portions as the Holders of a majority in aggregate
principal amount of the Securities then Outstanding shall
request by an Act of Holders, or, in the absence of such
request, as the Trustee in its discretion shall deem
expedient in the interest of the Securityholders, at public
or private sale; and/or
(2) proceed by one or more suits, actions or
proceedings at law or in equity or otherwise or by any
other appropriate remedy to enforce payment of the
Securities or Pledged Lessor Bonds, or to foreclose this
Indenture or to sell the Pledged Property under a judgment
or decree of a court or courts of competent jurisdiction,
or by the enforcement of any such other appropriate legal
or equitable remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce
any of its rights or powers or any of the rights or powers
of the Holders.
ln the event that the Trustee shall deem it advisable to
sell any or all of the Pledged Property in accordance with the
provisions of this Section, the Company and LP&L agree that if
registration of any such Pledged Property shall be required, in
the opinion of counsel for the Trustee, under the Securities Act
of 1933, as amended, or other applicable law, and regulations
promulgated thereunder, and if LP&L shall not effect, or cause to
be effected, such registration promptly, the Trustee may sell any
such Pledged Property at a private sale, and no Person shall
attempt to maintain that the prices at which such Pledged
Property is sold are inadequate by reason of the failure to sell
at public sale, or hold the Trustee liable therefor.
Section 8.04. Incidents of Sale of Pledged Property.
Upon any sale of all or any part of the Pledged Property
made either under the power of sale given under this Indenture or
under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Indenture,
the following shall be applicable:
(1) Securities Due and Payable. The principal of and
premium, if any, and accrued interest on the Securities, if
not previously due, shall immediately become and be due and
payable.
(2) Trustee Appointed Attorney of Company to Make
Conveyances. 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, transfer or conveyance of the
property thus sold, and for that purpose the Trustee may
execute all such documents and instruments and may
substitute one or more persons with like power. The
Company hereby ratifies and confirms all that its said
attorneys, or such substitute or substitutes, shall
lawfully do by virtue hereof.
(3) Company to Confirm Sales and Conveyances. 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, conveyance or transfer and
releases as may be designated in any such request.
(4) Holders and Trustee May Purchase Pledged Property.
Any Holder or the Trustee may bid for and purchase any of
the Pledged Property and, upon compliance with the terms of
sale, may hold, retain, possess and dispose of such Pledged
Property in his or its own absolute right without further
accountability.
(5) Purchaser at Sale May Apply Securities to Purchase
Price. Any purchaser at any such sale may, in paying the
purchase price, deliver any of the Securities then
Outstanding in lieu of cash and apply to the purchase price
the amount which shall, upon distribution of the net
proceeds of such sale, after application to the costs of
the action and any other sums which the Trustee is
authorized to deduct under this Indenture, be payable on
such Securities so delivered in respect of principal,
premium, if any, and interest. In case the amount so
payable on such Securities shall be less than the amount
due thereon, duly executed and authenticated Securities
shall be delivered in exchange therefor to the Holder
thereof for the balance of the amount due on such
Securities so delivered by such Holder.
(6) Receipt of Trustee Shall Discharge Purchaser. The
receipt of the Trustee or of the officer making such sale
under judicial proceedings shall be a sufficient discharge
to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such
purchaser or his personal representative or assigns shall
not be obliged to see to the application of such purchase
money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(7) Sale To Divest Rights of Company in Property Sold.
Any such sale shall operate to divest the Company of all
right, title, interest, claim and demand whatsoever, either
at law or in equity or otherwise, in and to the Pledged
Property so sold, and shall be a perpetual bar both at law
and in equity or otherwise against the Company, and its
successors and assigns, and any and all persons claiming or
who may claim the Pledged Property sold or any part thereof
from, through or under the Company, or its successors and
assigns.
(8) Application of Moneys Received upon Sale. Any
moneys collected by the Trustee upon any sale made either
under the power of sale given by this Indenture or under
judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this
Indenture, shall be applied as provided in Section 8.12.
Section 8.05. Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. If there shall be a failure
to make payment of the principal of any Security at its Stated
Maturity or upon Sinking Fund redemption, declaration of accelera
tion or otherwise,or if there shall be a failure to pay the
premium, if any, or interest on any Security when the same
becomes due and payable, then the Trustee, if any such failure
shall continue for 15 days, in its own name, and as trustee of an
express trust, shall be entitled, and empowered subject to the
proviso to the first paragraph of Section 8.02, to institute any
suits, actions or proceedings at law, in equity or otherwise, for
the collection of the sums so due and unpaid on the Securities,
and may prosecute any such claim or proceeding to judgment or
final decree, and may enforce any such judgment or final decree
and collect the moneys adjudged or decreed to be payable in any
manner provided by law, whether before or after or during the
pendency of any proceedings for the enforcement of the Lien of
this Indenture, or of any of the Trustee's rights or the rights
of the Security holders under this Indenture, and such power of
the Trustee shall not be affected by any sale hereunder or by the
exercise of any other right, power or remedy for the enforcement
of the provisions of this Indenture or for the foreclosure of the
lien hereof.
(b) Trustee May Recover Unpaid Indebtedness after Sale of
Pledged Property. In the case of a sale of the Pledged Property
and of the application of the proceeds of such sale to the
payment of the indebtedness secured by this Indenture, the
Trustee in its own name, and as trustee of an express trust,
shall be entitled and empowered, by any appropriate means, legal,
equitable or otherwise, to enforce payment of, and to receive all
amounts then remaining due and unpaid upon, all or any of the
Securities, for the benefit of the Holders thereof, and upon any
other portion of the indebtedness remaining unpaid, with interest
at the rates specified in the respective Securities on the
overdue principal of, and premium, if any, and (to the extent
that payment of such interest is legally enforceable) on the
overdue installments of interest.
(c) Recovery of Judgment Does Not Affect Lien of this
Indenture or Other Rights. No recovery of any such judgment or
final decree by the Trustee and no levy of any execution under
any such judgment upon any of the Pledged Property, or upon any
other property, shall in any manner or to any extent affect the
Lien of this Indenture upon any of the Pledged Property, or any
rights, powers or remedies of the Trustee, or any liens, rights,
powers or remedies of the Holders, but all such liens, rights,
powers and remedies shall continue unimpaired as before.
(d) Trustee May File Proofs of Claim; Appointment of
Trustee as Attorney-in-Fact in Judicial Proceedings. The Trustee
in its own name, or as trustee of an express trust, or as
attorney-in-fact for the Holders, or in any one or more of such
capacities (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 for the payment of overdue
principal, premium, if any, or interest), shall be entitled and
empowered to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Holders (whether such claims be
based upon the provisions of the Securities or of this Indenture)
allowed in any equity, receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial
proceedings relative to the Company or any obligor on the
Securities (within the meaning of the TIA), the creditors of the
Company or any such obligor, the Pledged Property or any other
property of the Company or any such obligor, and any 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 amount due to
it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (it being agreed
by the parties hereto that such amounts shall be considered
administrative expenses for the purposes of any bankruptcy
proceeding). The Trustee is hereby irrevocably appointed (and
the successive respective Holders of the Securities, by taking
and holding the same, shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact of
the respective Holders, with authority to (i) make and file in
the respective names of the Holders (subject to deduction from
any such claims of the amounts of any claims filed by any of the
Holders themselves), any claim, proof of claim or amendment
thereof, debt, proof of debt or amendment thereof, petition or
other document in any such proceedings and to receive payment of
any amounts distributable on account thereof, (ii) execute any
such other papers and documents and to do and perform any and all
such acts and things for and on behalf of such Holders, as may be
necessary or advisable in order to have the respective claims of
the Trustee and of the Holders against the Company or any such
obligor, the Pledged Property or any other property of the
Company or any such obligor allowed in any such proceeding and
(iii) receive payment of or on account of such claims and debt;
provided, however, that nothing contained in this Indenture shall
be deemed to give to the Trustee any right to accept or consent
to any plan of reorganization or otherwise by action of any
character in any such proceeding to waive or change in any way
any right of any Securityholder. Any moneys collected by the
Trustee under this Section shall be applied as provided in
Section 8.12.
(e) Trustee Need Not Have Possession of Securities. All
rights of action and of asserting claims under this Indenture or
under any of the Securities enforceable by the Trustee may be
enforced by the Trustee without possession of any of such
Securities or the production thereof at the trial or other
proceedings relative thereto.
(f) Suit To Be Brought for Ratable Benefit of Holders.
Any suit, action or other proceeding at law, in equity or
otherwise which shall be instituted by the Trustee under any of
the provisions of this Indenture shall be for the equal, ratable
and common benefit of all the Holders, subject to the provisions
of this Indenture.
(g) Trustee May Be Restored to Former Position and Rights
in Certain Circumstances. In case the Trustee shall have
proceeded to enforce any right under this Indenture by suit,
foreclosure or otherwise and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then in every such case, the
Company, LP&L and the Trustee shall be restored without further
act to their respective former positions and rights hereunder,
and all rights, remedies and powers of the Trustee shall continue
as though no such proceedings had been taken.
Section 8.06. Holders May Demand Enforcement of Rights by
Trustee.
If an Event of Default shall have occurred and shall be
continuing, the Trustee shall, upon the written request of the
Holders of a majority in aggregate principal amount of the
Securities then Outstanding and upon the offering of security or
indemnity as provided in Section 9.03(e), but subject in all
cases to the provisions of Section 3.03 and the proviso to the
first paragraph of Section 8.02, proceed to institute one or more
suits, actions or proceedings at law, in equity or otherwise, or
take any other appropriate remedy, to enforce payment of the
principal of or premium (if any) or interest on the Securities or
Pledged Lessor Bonds or to foreclose this Indenture or to sell
the Pledged Property under a judgment or decree of a court or
courts of competent jurisdiction or under the power of sale
herein granted, or take such other appropriate legal, equitable
or other remedy, as the Trustee, being advised by counsel, shall
deem most effectual to protect and enforce any of the rights or
powers of the Trustee or the Securityholders, or, in case such
Securityholders shall have requested a specific method of enforce
ment permitted hereunder, in the manner requested, provided that
such action shall not be otherwise than in accordance with law
and the provisions of this Indenture, and the Trustee, subject to
such indemnity provisions, shall have the right to decline to
follow any such request if the Trustee in good faith shall
determine that the suit, proceeding or exercise of the remedy so
requested would involve the Trustee in personal liability or
expense.
Section 8.07. Control by Holders.
The Holders of not less than a majority in principal amount
of the Outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 8.08. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its
consequences, except that only the Holders of all Securities
affected thereby may waive a default
(1) in the payment of the principal of or premium, if
any, or interest on such Securities or
(2) in respect of a covenant or provision hereof which
under Article Eleven cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected.
Upon any such waiver, such default shall cease to exist,
and any Event 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 8.09. Proceedings Instituted by Holder.
A Holder shall not have the right to institute any suit,
action or proceeding at law or in equity or otherwise for the
foreclosure of this Indenture, for the appointment of a receiver
or for the enforcement of any other remedy under or upon this
Indenture, unless:
(1) such Holder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then Outstanding shall have
requested the Trustee in writing to institute such action,
suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 9.03(e);
(3) the Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days
after receipt of such notice, request and offer of
indemnity; and
(4) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
Outstanding Securities.
It is understood and intended that no one or more of the
Holders shall have any right in any manner whatever hereunder or
under the Securities to (i) surrender, impair, waive, affect,
disturb or prejudice the Lien of this Indenture on any property
subject thereto or the rights of the Holders of any other
Securities, (ii) obtain or seek to obtain priority or preference
over any other such Holder or (iii) enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all the Holders subject to
the provisions of this Indenture.
Section 8.10. Undertaking To Pay Court Costs.
All parties to this Indenture, and each Holder by his
acceptance of a Security, shall be deemed to have agreed that any
court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this
Indenture, or in any suit, action or proceeding against the
Trustee for any action taken or omitted by it as Trustee
hereunder, the filing by any party litigant in such suit, action
or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, action or proceeding,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the
provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by the Trustee, (b) any suit,
action or proceeding instituted by any Holder or group of Holders
holding in the aggregate more than 10% in aggregate principal
amount of the Securities then Outstanding or (c) any suit, action
or proceeding instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest on
any of the Securities, on or after the respective due dates
expressed therein.
Section 8.11. Right of Holders To Receive Payment Not To Be
Impaired.
Anything in this Indenture to the contrary notwithstanding,
the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and interest on such Security,
on or after the respective due dates expressed in such Security
(or, in case of redemption, on the Redemption Date fixed for such
Security), or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 8.12. Application of Moneys Collected by Trustee.
Any moneys collected or to be applied by the Trustee
pursuant to this Article, together with any other moneys which
may then be held by the Trustee under any of the provisions of
this Indenture as security for the Securities (other than moneys
at the time required to be held for the payment of specific
Securities at their Stated Maturities or at a time fixed for the
redemption thereof) shall be applied in the following order from
time to time, on the date or dates fixed by the Trustee and, in
the case of a distribution of such moneys on account of
principal, premium, if any, or interest upon presentation of the
several Outstanding Securities, and stamping thereon of payment,
if only partially paid, and upon surrender thereof, if fully
paid:
First: to the payment of all taxes, assessments or
liens prior to the Lien of this Indenture, except those
subject to which any sale shall have been made, all
reasonable costs and expenses of collection, including the
reasonable costs and expenses of handling the Pledged
Property and of any sale thereof pursuant to the provisions
of this Article and of the enforcement of any remedies
hereunder or under any Lease Indenture, and to the payment
of all amounts due the Trustee or any predecessor Trustee
under Section 9.07, or through the Trustee by any Holder or
Holders;
Second: in case the principal of the Outstanding
Securities or any of them shall not have become due, to the
payment of any interest in default, in the order of the
maturity of the installments of such interest, with
interest at the rates specified in the respective
Securities in respect of overdue payments (to the extent
that payment of such interest shall be legally enforceable)
on the overdue installments thereof;
Third: in case the principal of any of but not all the
Outstanding Securities shall have become due at their
Stated Maturities, on a Redemption Date or otherwise, first
to the payment of accrued interest in the order of the
maturity of the installments thereof with interest at the
respective rates specified in the Securities in respect of
payments on overdue principal, premium, if any, and (to the
extent that payment of such interest shall be legally
enforceable) on overdue installments of interest, and next
to the payment of the principal of all Securities then due;
Fourth: in case the principal of all the Outstanding
Securities shall have become due at their Stated
Maturities, by declaration, on a Redemption Date or
otherwise, to the payment of the whole amount then due and
unpaid upon the Securities then Outstanding for principal,
premium, if any, and interest, together with interest at
the respective rates specified in the Securities in respect
of overdue payments on principal, premium, if any, and (to
the extent that payment of such interest shall be legally
enforceable) on overdue installments of interest; and
Fifth: in case the principal of all the Securities
shall have become due at their Stated Maturities, by
declaration, upon redemption or otherwise, and all of such
Securities shall have been fully paid, together with all
interest (including any interest on overdue payments) and
premium, if any, thereon, any surplus then remaining shall
be paid to the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or
as a court of competent jurisdiction may direct;
provided, however, that all payments to be made pursuant to this
Section shall be made ratably to the persons entitled thereto,
without discrimination or preference.
Section 8.13. Securities Held by Certain Persons Not To Share in
Distribution
Any Securities actually known to a Responsible Officer of
the Trustee to be owned or held by, or for the account or benefit
of, the Company, LP&L, or any Affiliate of either thereof shall
not be entitled to share in any payment or distribution provided
for in this Article until all Securities held by other Persons
have been paid in full and all amounts owing to the Trustee
(including without limitation, fees and expenses of its counsel)
pursuant to the Indenture or otherwise have been paid in full.
Section 8.14. Waiver of Appraisement, Valuation, Stay, Right to
Marshalling.
To the extent it may lawfully do so, each of the Company
and LP&L, for itself and for any Person who may claim through or
under it, hereby:
(1) agrees that neither it nor any such Person will
set up, plead, claim or in any manner whatsoever take
advantage of, any appraisement, valuation, stay, extension
or redemption laws, now or hereafter in force in any
jurisdiction, which may delay, prevent or otherwise hinder
(i) the performance or enforcement or foreclosure of this
Indenture, (ii) the sale of any of the Pledged Property or
(iii) the putting of the purchaser or purchasers thereof
into possession of such property immediately after the sale
thereof:
(2) waives all benefit or advantage of any such laws;
(3) waives and releases all rights to have the Pledged
Property marshalled upon any foreclosure, sale or other
enforcement of this Indenture; and
(4) consents and agrees that all the Pledged Property
may at any such sale be sold by the Trustee as an entirety.
Section 8.15. Remedies Cumulative; Delay or Omission Not a
Waiver.
Every remedy given hereunder to the Trustee or to any of
the Holders shall not be exclusive of any other remedy or
remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise. The
Trustee may exercise all or any of the powers, rights or remedies
given to it hereunder or which may now or hereafter be given by
statute, law, or equity or otherwise, in its absolute discretion.
No course of dealing between the Company or LP&L and the Trustee
or the Holders or any delay or omission of the Trustee or of any
Holder to exercise any right, remedy or power accruing upon any
Event of Default shall impair any such right, remedy or power or
shall be construed to be a waiver of any such Event of Default or
of any right of the Trustee or of the Holders or acquiescence
therein, and, subject to the provisions of Section 8.07, every
right, remedy and power given by this Article 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.
ARTICLE NINE
The Trustee
Section 9.01. Certain Duties and Responsibilities.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act.
(b) 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.
(c) 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 9.02. Notice of Defaults.
In addition to its obligation to give notice to Holders as
provided in Section 3.03, the Trustee shall give the Holders
notice of default hereunder 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 8.01(c)
no such notice to Holders shall be given until at least 30 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 9.03. Certain Rights of Trustee.
Subject to the provisions of Section 9.01 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture 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 or LP&L
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or a LP&L Request or LP&L
Order, in the case of a request or direction of either the
Company or LP&L, as the case may be, and any resolution of
the Board of Directors of the Company or LP&L may be
sufficiently evidenced by a Board Resolution of the Company
or LP&L, as the case may be;
(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, conclusively rely upon an Officers'
Certificate of the Company or LP&L;
(d) the Trustee may consult with counsel and the
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 of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which may
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 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 be entitled to examine
the books, records and premises of the Company or LP&L,
personally or by agent or attorney at the sole cost and
expense of the Company or LP&L, as the case may be;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by
it hereunder;
(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 (i)
a Responsible Officer of the Trustee assigned to the
Corporate Trust & Agency Group of the Trustee (or any
successor division or department of the Trustee) shall have
actual knowledge of the Event of Default or (ii) 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; and
(i) In the event that the Trustee is also acting as
Paying Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this
Article Nine shall also be afforded to such Paying Agent or
Security Registrar.
Section 9.04. Not Responsible for Recitals or Issuance of
Securities
The recitals contained herein and in the Securities, except
the certificates of authentication, shall not be taken as the
statements of the Trustee, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture, the Pledged Property or the Securities, except that
the Trustee hereby represents and warrants that this Indenture
has been executed and delivered by one of its officers who is
duly authorized to execute and deliver such document on its
behalf. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 9.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, any
Authenticating Agent or any other agent of the Company or LP&L,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 9.08 and 9.13, may
otherwise deal with the Company and LP&L with the same rights it
would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
Section 9.06. Funds May Be Held by Trustee or Paying Agent.
Any monies held by the Trustee or the Paying Agent
hereunder as part of the Pledged Property may, until paid out by
the Trustee or the Paying Agent as herein provided, be carried by
the Trustee or the Paying Agent on deposit with itself, and
neither the Trustee nor the Paying Agent shall have any liability
for interest upon any such monies.
Section 9.07. Compensation and Reimbursement of Trustee and
Authorized Agents.
Each of the Company and LP&L shall be liable, jointly and
severally, to:
(a) pay, or cause to be paid, to each of the Trustee
and any Authorized Agent (or any co-trustee or additional
trustee contemplated by Section 9.15 hereof) 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) reimburse, or cause to be reimbursed, each of the
Trustee and any Authorized Agent (or any co-trustee or
additional trustee contemplated by Section 9.15 hereof)upon
its request for all expenses, disbursements and advances
incurred or made by it in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its own negligence, willful misconduct or
bad faith; and
(c) indemnify, or cause to be indemnified, each of the
Trustee, any predecessor Trustee and any Authorized Agent
(or any co-trustee or additional trustee contemplated by
Section 9.15 hereof)for, and hold it harmless against, any
loss, liability or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder,
including the 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.
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, except funds held in trust under Section
12.03.
Section 9.08. 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.
Section 9.09. 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 of America, 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
U.S. 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. No obligor upon the Securities or person directly or
indirectly controlling, controlled by, or under common control
with such obligor shall serve as Trustee upon such Securities.
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.
Section 9.10 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 shall
become effective until the acceptance of appointment by the
successor Trustee under Section 9.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company and LP&L. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, LP&L and 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.
(c) The Trustee may be removed at any time by an Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee, the Company and LP&L.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 9.08
after written request therefor by any Owner Trustee, the
Company, LP&L or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
9.09 and shall fail to resign after written request
therefor by any Lessor or by any such Securityholder, 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, (i) LP&L, acting after consultation with
the Company, may remove the Trustee by Board Resolution or (ii)
subject to Section 8.10, any Holder who has been a bona fide
Holder of a Security 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 and the
appointment of a successor Trustee.
(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, LP&L, acting after consultation with the
Company, shall promptly appoint by Board Resolution a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the
Company, LP&L and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by LP&L. If no successor Trustee
shall have been so appointed by LP&L, acting after consultation
with the Company, or by the Holders, and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
(g) No Trustee under the Indenture shall be personally
liable for any action or omission of any successor Trustee.
Section 9.11. Acceptance of Appointment by Successor
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, LP&L 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
request of any Owner Trustee, the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its
charges, 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, subject nevertheless to its lien, if
any, provided for in Section 9.07. Upon request of any such
successor Trustee, LP&L and the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts.
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.
Section 9.12. 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 of the
corporate agency or 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, 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 authenti
cated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 9.13. Preferential Collection of Claims against any
Obligor.
If the Trustee shall be or become a creditor of any obligor
(within the meaning of the Trust Indenture Act) upon the
Securities, the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against such obligor.
Section 9.14. Authorized Agents.
(a) There shall at all times hereunder be a Paying Agent
authorized by the Company to pay the principal of and premium, if
any, and interest on any Securities and a Security Registrar for
the purpose of registration of transfer and exchange of
Securities. The Trustee is hereby initially appointed as Paying
Agent and Security Registrar hereunder.
The Company may appoint one or more Paying Agents. Any
Paying Agent (other than one simultaneously serving as the
Trustee) from time to time appointed hereunder shall 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 will:
(1) hold all sums held by it for the payment of
principal of and premium, if any, and interest on
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;
(2) give the Trustee within five days thereafter
notice of any default by any obligor upon the Securities in
the making of any such payment of principal, premium, if
any, or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
Notwithstanding any other provision of this Indenture, any
payment required to be made to or received or held by the Trustee
may, to the extent authorized by written instructions of the
Trustee, be made to or received or held by a Paying Agent in the
Borough of Manhattan, The City of New York, for the account of
the Trustee.
(b) In addition, at any time when any of the Securities
remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities of one or more
series which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original
issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.09, 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 (it being understood that
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). If an appointment of an Authenticating
Agent with respect to the Securities of one or more series shall
be made pursuant hereto, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication 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 Signatory
(c) Any Authorized Agent shall be (i) acceptable to the
Company and LP&L, (ii) a bank or trust company, (iii) a
corporation organized and doing business under the laws of the
United States or of any State, Territory or the District of
Columbia, with a combined capital and surplus of at least
$50,000,000, and (iv) authorized under such laws to exercise
corporate trust powers, subject to supervision or examination by
federal or state authorities. If such Authorized Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authorized 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 Authorized
Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authorized Agent shall resign
immediately in the manner and with the effect specified in this
Section.
(d) Any corporation into which any Authorized Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any Authorized Agent shall be a party, or any
corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or such
Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, LP&L and the
Company. The Company may, and at the request of the Trustee or
LP&L shall, at any time, terminate the agency of any Authorized
Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of
an Authorized Agent or in case at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions
of such Authorized Agent shall have been appointed), the Company
shall promptly appoint one or more qualified successor Authorized
Agents approved by the Trustee and LP&L to perform the functions
of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under
this Section. The Company shall give written notice of any such
appointment to all Holders as their names and addresses appear on
the Security Register. In the event that an Authorized Agent
shall resign or be removed, or be dissolved, or if the property
or affairs of such Authorized Agent shall be taken under the
control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and
the Company shall not have appointed such Authorized Agent's
successor or successors, the Trustee shall ipso facto be deemed
to be such Authorized Agent for all purposes of this Indenture
until the Company appoints a successor or successors to such
Authorized Agent.
Section 9.15. Co-Trustee or Separate Trustee
(a) If at any time or times it shall be necessary or
prudent in order to conform to any law of any jurisdiction in
which property shall be held subject to the lien hereof, or the
Trustee shall be advised by counsel satisfactory to it that it is
so necessary or prudent in the interest of Holders, or the
Holders of a majority in principal amount of Outstanding
Securities shall in writing so request, the Trustee, the Company
and LP&L shall execute and deliver all instruments and agreements
necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Trustee either to act as
co-trustee or co-trustees of all or any part of the Pledged
Property jointly with the Trustee originally named herein or any
successor or successors, or to act as separate trustee or
trustees of all or any such property. In the event LP&L and the
Company shall have not joined in the execution of such
instruments and agreements within 10 days after the receipt of a
written request from the Trustee so to do, or in case an Event of
Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section without the
concurrence of LP&L or the Company; and LP&L and the Company each
hereby appoint the Trustee its agent and attorney to act for it
under the foregoing provisions of this Section in either of such
contingencies.
(b) Every additional trustee hereunder shall, to the
extent permitted by law, be appointed and act, and such
additional trustee and its successors shall act, subject to the
following provisions and conditions, namely:
(1) the Securities shall be authenticated and
delivered, and all powers duties, obligations and rights
conferred upon the Trustee in respect of the custody,
control and management of moneys, papers or securities,
shall be exercised, solely by the Trustee, unless otherwise
expressly permitted by the terms hereof;
(2) all rights, powers, duties and obligations
conferred or imposed upon the Trustee (other than those
referred to in the preceding clause (1)), shall be
conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees jointly,
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by
such additional trustee or trustees;
(3) no power given hereby to, or which it is provided
hereby may be exercised by, any such additional trustee or
trustees, shall be exercised hereunder by such additional
trustee or trustees, except jointly with, or with the
consent in writing of, the Trustee, anything herein
contained to the contrary notwithstanding;
(4) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee
hereunder; and
(5) LP&L, the Company and the Trustee, at any time, by
an instrument in writing, executed by them jointly, may
remove any such additional trustee, and in that case, by an
instrument in writing executed by them jointly, may appoint
a successor or successors to such additional trustee or
trustees, as the case may be, anything herein contained to
the contrary notwithstanding; provided, however, that if
LP&L, the Company and the Trustee remove any such
additional trustee which has been appointed at the request
of the Holders pursuant to clause (a) above, then such
parties shall appoint a successor or successors to such
additional trustee so removed unless the Holders of a
majority in principal amount of Outstanding Securities
shall have agreed in writing that no such successor or
successors need be appointed. In the event that LP&L and
the Company shall not have joined in the execution of any
such instrument within 10 days after the receipt of a
written request from the Trustee to do so, the Trustee
shall have the power to remove any such additional trustee
and to appoint a successor additional trustee without the
concurrence of LP&L and the Company, each hereby appointing
the Trustee its agent and attorney to act for it in such
connection in such contingency. In the event that the
Trustee alone shall have appointed an additional trustee or
trustees or co-trustee or co-trustees as above provided, it
may at any time, by an instrument in writing, remove any
such additional trustee or co-trustee, the successor to any
such trustee or co-trustee so removed, to be appointed by
LP&L, the Company and the Trustee, or by the Trustee alone,
as hereinbefore in this Section provided.
ARTICLE TEN
Holders' Lists and Reports
by Trustee and LP&L
Section 10.01. LP&L to Furnish Trustee Names and Addresses of
Holders
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 199_ and at such other times as
the Trustee may request in writing, LP&L 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 to
preserve by it, all to such extent, if any, and in such manner as
shall be required by the Trust Indenture Act; provided, however,
that so long as the Trustee is the sole Security Registrar, or is
otherwise furnished a copy of the Security Register, no such list
need be furnished by LP&L.
Section 10.02. Reports by Trustee and LP&L.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 199_, the Trustee shall transmit to the Holders and
the Commission a report with respect to any events 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 LP&L shall
file with 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.
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without Consent of
Holders
Without the consent of the Holders of any Securities, LP&L,
when authorized by a Board Resolution, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto (a "Series Supplemental Indenture" in the
case of item (a) below), in form satisfactory to the Trustee, for
any of the following purposes:
(a) to establish the form and terms of Securities of
any series of Securities permitted by Sections 2.01 and
2.03; or
(b) to evidence the succession of another corporation
to LP&L and the assumption by any such successor of the
covenants of LP&L herein contained, or 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 Securities contained; or
(c) to evidence the succession of a new trustee
hereunder or a co-trustee or separate trustee pursuant to
Section 9.15 hereof;
(d) to add to the covenants of the Company or LP&L,
for the benefit of the Holders of the Securities, or to
evidence the surrender of any right or power herein
conferred upon the Company or LP&L; or
(e) to convey, transfer and assign to the Trustee, and
to subject to the Lien of this Indenture, with the same
force and effect as though included in the Granting Clauses
hereof, additional Pledged Lessor Bonds or additional
properties or assets, and to correct or amplify the
description of any property at any time subject to the Lien
of this Indenture or to assure, convey and confirm unto the
Trustee any property subject or required to be subject to
the Lien of this Indenture; or
(f) to permit or facilitate the issuance of Securities
in uncertificated form; or
(g) to change or eliminate any provision of this
Indenture; provided, however, that if such change or
elimination shall adversely affect the interests of the
Holders of Securities of any series, such change or
elimination shall become effective with respect to such
series only when no Security of such series remains
Outstanding; 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
provisions with respect to matters or questions arising
under this Indenture, provided such action shall not
adversely affect the interest of the Holders of the
Securities 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, LP&L and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof; 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 or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at
such date, this Indenture shall be deemed to have
been amended to effect such changes or elimination,
and the Company, LP&L and the Trustee may, without
the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
Section 11.02. Supplemental Indenture 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, LP&L and the
Trustee, the Company and LP&L, when authorized by a Board
Resolution, may, and the Trustee, subject to Sections 11.03 and
11.04, shall, 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 no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security or coupon of each series directly affected
thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, or any Installment Payment
Date, or the dates or circumstances of payment of premium,
if any, on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon
the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or
the premium, if any, or the interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment of principal or interest on or after the
Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or such payment of premium,
if any, on or after the date such premium becomes due and
payable or change the dates or the amounts of payments to
be made through the operation of a Sinking Fund or through
installment payments of principal in respect of such
Securities, or
(b) permit the creation of any lien prior to or,
except with respect to additional series of Securities
issued in accordance with the terms of this Indenture, pari
passu with the Lien of this Indenture with respect to any
of the Pledged Property, or terminate the Lien of this
Indenture on any Pledged Property (except in each case as
permitted by, and pursuant to, Article Four) or deprive any
Holder of the security afforded by the Lien of this
Indenture, or
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of
Section 13.04 for quorum or voting, or
(d) modify any of the provisions of this Section or
Section 8.08, except to increase any percentage or
percentages referred to in this Section or to provide that
certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of
each Security affected thereby.
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 which modifies the rights of the Holders
of Securities of such series 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.
Upon receipt by the Trustee of Board Resolutions of the
Company and LP&L and such other documentation as the Trustee may
reasonably require and upon the filing with the Trustee of
evidence of the Act of said Holders, the Trustee shall join in
the execution of such supplemental indenture or other instrument,
as the case may be, subject to the provisions of Sections 11.03
and 11.04.
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.
Section 11.03. Documents Affecting Immunity or Indemnity.
If in the opinion of the Company or the Trustee any
document required to be executed by it pursuant to the terms of
Section 11.02 affects any interest, right, duty, immunity or
indemnity in favor of the Company or the Trustee under this
Indenture or any of the Participation Agreements, the Company or
the Trustee, as the case may be, may in its discretion decline to
execute such document.
Section 11.04. Election 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 receive, and (subject to Section 9.01) 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.
Section 11.05. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, 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, subject to the provisions of this Article, be bound
thereby.
Section 11.06. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as then in
effect.
Section 11.07. Reference in Securities to Supplemental
Indentures
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by any Owner Trustee, the Company or LP&L, bear
a notation in form approved by such Lessor, the Company, LP&L and
the Trustee as to any matter provided for in such supplemental
indenture; and, in such case, suitable notation may be made upon
Outstanding Securities after proper presentation and demand. If
any Owner Trustee, the Company or LP&L shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, LP&L and the Trustee, 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.
ARTICLE TWELVE
Satisfaction and Discharge
Section 12.01. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall, prior to the Stated Maturity of principal
thereof, be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect
thereof shall be deemed to have been satisfied and discharged:
(a) if the Company shall have irrevocably deposited
with the Trustee, in trust, money in an amount which shall
be sufficient to pay when due the principal of and premium,
if any, and interest due and to become due on such
Securities or portions thereof on and prior to the Stated
Maturity of principal thereof or upon redemption or each
principal Installment Payment Date; or
(b) if the Pledged Lessor Bonds, of the series
corresponding to the series of which such Security or
Securities are a part, shall be deemed to have been paid in
accordance with Section 11.01(a) of the Lease Indenture or
Lease Indentures under which such Pledged Lessor Bonds were
issued;
provided, however, that, in case of redemption of Securities, 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:
(x) if any such deposit of money shall have been made
prior to the Stated Maturity of principal or Redemption
Date of such Securities, a Company Order stating that such
money shall be held by the Trustee, in trust, as provided
in Section 12.03, and
(y) if such Pledged Lessor Bonds are so deemed to have
been paid, a copy of each certificate or opinion delivered
to the Lease Indenture Trustees pursuant to Section
11.01(a) of the related Lease Indentures.
Upon satisfaction of the aforesaid conditions with respect
to any Security or Securities or portion thereof, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that such Security or 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 is deemed
to have been satisfied and discharged.
If payment at Stated Maturity of principal of less than all
of the Securities of any series is to be provided for in the
manner and with the effect provided in this Section, the Trustee
shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 6.03 for selection
for redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have
been paid as provided in this Section do not mature and are not
to be redeemed within the sixty (60) day period commencing with
the date of the deposit with the Trustee of moneys, or the date
on which Pledged Lessor Bonds are deemed to have been paid, as
the case may be, 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 Securities are deemed to have been paid and
the circumstances thereof.
Notwithstanding the satisfaction and discharge of any
Securities as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 2.07, 2.08,
2.09, 5.02, 5.03, 9.07 and 9.14 and this Article Twelve shall
survive.
Section 12.02. 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 proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than (A) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.09 and (B)
Securities deemed to have been paid in accordance
with Section 12.01) have been delivered to the
Trustee for cancellation; or
(ii) all Securities not theretofore delivered
to the Trustee for cancellation shall be deemed to
have been paid in accordance with Section 12.01;
(b) all other sums due and payable hereunder have been
paid; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
the satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, LP&L and
the Trustee under Sections 2.07, 2.08, 2.09, 5.02, 5.03, 9.07 and
9.14 and this Article Twelve shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to or upon the order of the Company, 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 held by
the Trustee pursuant to Section 12.03 and the Pledged Lessor
Bonds.
Section 12.03. Application of Trust Money
The money deposited with the Trustee pursuant to Section
12.01 shall not 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 interest 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 5.03;
provided, however, that, if not then needed for such purpose,
such money shall, to the extent practicable, be invested in
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America or certificates of an ownership interest in the
principal of or interest on any of such obligations, in any case
maturing at such times and in such amounts as shall be sufficient
to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions
thereof on and prior to the Stated Maturity, Installment Payment
Dates or Redemption Date thereof, and so long as there shall not
have occurred and be continuing an Event of Default, interest
earned from such investment shall be paid over to or upon the
order of the Company as received by the Trustee, less any fees
and expenses of the Trustee (including without limitation the
fees and expenses of its counsel) incurred in connection
therewith free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held by the Trustee in accordance with this Section on the
Stated Maturity, Installment Payment Dates or Redemption Date of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest then due on such
Securities shall be paid over to or upon the order of the Company
less any fees and expenses of the Trustee (including without
limitation the fees and expenses of its counsel) incurred in
connection therewith free and clear of any trust, lien or pledge
under this Indenture.
ARTICLE THIRTEEN
Meetings of Holders of Securities; Action without Meeting
Section 13.01. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, 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.
Section 13.02. 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 for any purpose
specified in Section 13.01, 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 and
LP&L, 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
to the Company, LP&L, each Owner Trustee, each Owner Participant
and the Holders, in the manner provided in Sections 1.05 and 1.06
and, in the case of each Owner Trustee or Owner Participant, in
the manner specified in Section 19 of the Participation
Agreement, 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 by the Company, by LP&L or by the Holders of 33% in
aggregate principal amount of all of such series, considered as
one class, for any purpose specified in Section 13.01, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of 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, LP&L or the Holders of Securities of such series 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 and LP&L, 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 shall be valid without notice if the Holders of
all Outstanding Securities of such series are present in person
or by proxy and if representatives of the Company, LP&L 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, LP&L and the Trustee.
Section 13.03. 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, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series 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 by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series 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, LP&L, any Owner Trustee
and any Owner Participant and their respective counsel.
Section 13.04. Quorum; Action
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities 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 Securities of such series: 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,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class, shall
constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as 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 a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting.
Except as provided by Section 13.05(e), notice of the reconvening
of any adjourned meeting shall be given as provided in Section
13.02(a), except that such notice need be given only once not
less than five 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 which shall constitute a quorum.
Except as limited by Section 11.02, any resolution
presented 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 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, 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,
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
with respect to which such meeting shall have been held, whether
or not present or represented at the meeting.
Section 13.05. 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 of such Securities before being voted.
(b) Notwithstanding any other provisions of this
Indenture, 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 1.04 and the
appointment of any proxy shall be proved in the manner specified
in Section 1.04. 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
1.04 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, LP&L or by Holders of
Securities as provided in Section 13.02(b), in which case the
Company or the Holders of Securities of the series 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 represented at the meeting,
considered as one class.
(d) At any meeting each Holder of a Security or proxy
shall be entitled to one vote for each $1,000 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 13.02 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 represented at the
meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
Section 13.06. Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities or of
their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series 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 in quadruplicate of all votes cast at the meeting. A
record, a least in quadruplicate, of the proceedings of each
meeting of Holders of Securities 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 13.02 and, if applicable, Section 13.04.
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 each of the Company and LP&L, 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 13.07. Action Without Meeting
In lieu of a vote of Holders of Securities 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 of Securities by written
instruments as provided in Section 1.04.
ARTICLE FOURTEEN
Liability of the Company Solely Corporate; No Liability of LP&L
Section 14.01. Liability of the Company Solely Corporate
No recourse shall be had for the payment of the principal
of or premium, if any, or interest 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 corporation (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 of the Company, 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.
Section 14.02. No Liability of LP&L.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by LP&L of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 2.16 of each Lease
Indenture, LP&L may assume, or be deemed to have assumed, the
Pledged Lessor Bonds).
_____________
This instrument may be executed in any number of
counterparts, each of which when 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 have caused this Indenture
to be duly executed as of the day and year first above written.
W3A Funding Corporation
By
Title: Vice President
Louisiana Power & Light Company
By
Title: Vice President and Treasurer
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By
Title: Vice President
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
______________, within my jurisdiction, the within named
____________, who acknowledged that he is a Vice President of W3A
Funding Corporation, a Delaware corporation, and that for and on
behalf of the said corporation, and as its act and deed, he
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
State of Louisiana )
) ss.:
Parish of Orleans )
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this __th day of
______________, within my jurisdiction, the within named
________________, who acknowledged that he is a _________________
of Louisiana Power & Light Company, a Louisiana corporation, and
that for and on behalf of the said corporation, and as its act
and deed, he executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_______________, within my jurisdiction, the within named
____________________, who acknowledged that he is a __________ of
BANKERS TRUST COMPANY, a New York banking corporation, and that
for and on behalf of the said corporation, and as its act and
deed,he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_____________, within my jurisdiction, the within named
, who acknowledged that he is a ____________ of BANKERS TRUST
COMPANY, a New York banking corporation, Trustee under the above
and foregoing instrument, and that for and on behalf of the said
corporation, and as its act and deed in said capacity as Trustee
and its having been duly authorized so to do, he executed the
above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
EXHIBIT A
IDENTIFICATION OF CERTAIN DOCUMENTS
AND PARTIES THERETO
PART I
Lease _ Facility Lease No. 1, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture _ Indenture of Mortgage and Deed of Trust
No. 1, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 1"), between the Owner Trustee and Bankers
Trust Company and Stanley Burg, as trustees (together, a "Lease
Indenture Trustee").
Owner Trustee _ First National Bank of Commerce as trustee
under Trust Agreement No. 1, dated as of September 1, 1989, with
ESSL 2, Inc. (the "Owner Participant").
Participation Agreement _ Participation Agreement No. 1,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Bankers Trust Company and Stanley Burg, individually and as
Indenture Trustee, and LP&L.
PART II
Lease _ Facility Lease No. 2, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture _ Indenture of Mortgage and Deed of Trust
No. 2, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 2"), between the Owner Trustee and Bankers
Trust Company of California, National Association, and Cecil D.
Bobey, as trustees (together, a "Lease Indenture Trustee").
Owner Trustee _ First National Bank of Commerce as trustee
under Trust Agreement No. 2, dated as of September 1, 1989, with
ESSL 2, Inc. (the "Owner Participant").
Participation Agreement _ Participation Agreement No. 2,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Bankers Trust Company of California, National Association, and
Cecil D. Bobey, individually and as Indenture Trustee, and LP&L.
PART III
Lease - Facility Lease No. 3, dated as of September 1,
1989, as amended and supplemented, between LP&L and the Owner
Trustee, as Lessor (a "Lessor").
Lease Indenture - Indenture of Mortgage and Deed of Trust
No. 3, dated as of September 1, 1989, as amended and supplemented
("Lease Indenture No. 3"), between the Owner Trustee and Security
Pacific National Trust Company (New York) and Kenneth T. McGraw,
as trustee (together, a "Lease Indenture Trustee").
Owner Trustee - First National Bank of Commerce as trustee
under Trust Agreement No. 3, dated as of September 1, 1989, with
ESSL 2, Inc. (an "Owner Participant").
Participation Agreement - Participation Agreement No. 3,
dated as of September 1, 1989, among the Owner Participant, First
National Bank of Commerce, individually and as Owner Trustee,
Security Pacific National Trust Company (New York) and Kenneth T.
McGraw, individually and as Indenture Trustee, and LP&L.