File No. 70-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form U-l
___________________________________
APPLICATION-DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
___________________________________
Gulf States Utilities Company
350 Pine Street
Beaumont, TX 77701
(Name of company filing this statement and address
of principal executive offices)
___________________________________
Entergy Corporation
(Name of top registered holding company parent of each
applicant or declarant)
___________________________________
Frank Gallaher William J. Regan, Jr.
President Vice President and
Gulf States Utilities Company Treasurer
350 Pine Street Entergy Services, Inc.
Beaumont, TX 77701 639 Loyola Avenue
New Orleans, LA 70113
(Names and addresses of agents for service)
___________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Laurence M. Hamric, Esq. Thomas J. Igoe, Jr., Esq.
Ann G. Roy, Esq. Kenn Stacy, Esq.
Entergy Services, Inc. Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, LA 70113 New York, NY 10019
<PAGE>
Item 1. Description of Proposed Transactions
Section A. Overview
Gulf States Utilities Company, a Texas corporation
("Company"), a subsidiary of Entergy Corporation
("Entergy"), a registered holding company under the Public
Utility Holding Company Act of 1935, as amended, ("Holding
Company Act"), proposes, from time to time through December
31, 2000, (1) to issue and sell one or more new series of
the Company's First Mortgage Bonds ("Bonds") and/or one or
more new sub-series of the Medium Term Note Series of its
First Mortgage Bonds ("MTNs"), in a combined aggregate
principal amount of Bonds and MTNs (together with Debentures
and Entity Subordinated Debentures, but excluding Collateral
Bonds, as referred to below) not to exceed $900 million,
and/or (2) to issue and sell one or more series of the
Company's debentures ("Debentures") in an aggregate
principal amount (together with Bonds and MTNs and Entity
Subordinated Debentures, but excluding Collateral Bonds, as
described below) not to exceed $900 million, and/or (3) to
issue and sell (a) through one or more special purposes
subsidiaries of the Company, one or more series of preferred
securities of such trust having a stated per share
liquidation preference ("Entity Interests"), and/or (b) one
or more new series of the Company's Preferred Stock,
Cumulative, $100 Par Value and/or Preferred Stock,
Cumulative, without par value ("Preferred") and/or (c) one
or more series of the Company's Preference Stock,
Cumulative, without par value ("Preference"), in a combined
aggregate stated amount of Entity Interests, Preferred and
Preference not to exceed $400 million, and/or (4) to enter
into arrangements for the issuance and sale of not to exceed
$250 million aggregate principal amount of tax-exempt bonds
("Tax-Exempt Bonds") in one or more series for the financing
of certain pollution control facilities, including but not
limited to sewage and/or solid waste disposal facilities
that have not heretofore been the subject of such financing,
or for the refinancing of outstanding Tax-Exempt Bonds
issued for that purpose, including the possible issuance and
pledge of one or more new series of Bonds, MTNs and/or
Debentures ("Collateral Bonds"), and/or the purchasing of
letters of credit and/or insurance, in an aggregate
principal or stated amount (including such Collateral Bonds,
letters of credit and/or insurance) not to exceed $275
million as collateral security for such Tax-Exempt Bonds
(the financings contemplated in (1) through (4) above being
hereinafter collectively referred to as "New Financing
Plan"), and/or (5) to acquire, from time to time by tender
offer, open market or negotiated purchases, all or a portion
of one or more series of the Company's outstanding First
Mortgage Bonds, MTNs, Debentures, Preferred Stock and/ or
Preference Stock , and/or outstanding Tax-Exempt bonds
previously issued for the benefit of the Company
(collectively, the "New Acquisition Program"). Each of
these proposed transactions is discussed in detail below.
Section B. Issuance and Sale of the Bonds and MTNs
1. The new series of Bonds will be issued under the
Company's Indenture of Mortgage, dated as of September 1,
1926, to Chase National Bank of the City of New York, as
Trustee, to which Chemical Bank is successor Trustee (the
"Trustee"), as heretofore supplemented by fifty-seven
Supplemental Indentures (each, a "Supplemented Indenture")
and as proposed to be further supplemented by additional
Supplemental Indenture(s) (the "Mortgage"), each relating to
one or more new series of Bonds. The Bonds would be issued
on the basis of available net property additions and/or
previously retired First Mortgage Bonds, as permitted and
authorized by the Mortgage.
2. The terms of the Fifty-seventh Supplemental Indenture,
dated as of August 1, 1993, to the Mortgage provide for a
series of First Mortgage Bonds entitled "First Mortgage
Bonds, Medium Term Note Series" (the "MTN Series"). The
MTNs will be issued as sub-series of the MTN Series. The
Bonds of the MTN Series are equally secured with other First
Mortgage Bonds heretofore or hereafter issued under the
Mortgage, except insofar as any sinking fund and/or
improvement fund, maintenance and replacement fund or other
fund established in accordance with the provisions of the
Mortgage may afford additional security for the Bonds of any
additional series or, if applicable, sub-series of the MTN
Series. The issuance of MTNs could be advantageous to the
Company for the following reasons: (a) interest rates may be
lower on MTNs than on Bonds because MTNs can be offered on a
continual basis, insuring that supply does not exceed
investor demand at any given time; (b) MTNs provide
flexibility in structuring the principal amount, maturity
and other terms of each issuance to match the Company's
financing needs and investors' investment requirements; and
(c) the ability to price and issue MTNs quickly may enable
the Company to take advantage of market opportunities as
they arise.
3. Each new series of Bonds or sub-series of MTNs will be
sold at such price, bear interest at such rate or rates, and
mature on such date or dates as shall have been determined
at or before the time of sale. No series of Bonds or sub-
series of MTNs will be issued at rates in excess of the
lower of 15% per annum or those rates generally obtainable
at the time of pricing for sales of first mortgage bonds or
medium-term notes having the same or reasonably similar
maturities, issued by companies of the same or reasonably
comparable credit quality and having reasonably similar
terms and features. The price, exclusive of accrued
interest, to be paid to the Company for each new series of
Bonds or new sub-series of MTNs to be sold at competitive
bidding will be within a range (to be specified by the
Company to prospective purchasers) of 95% to 105% of the
principal amount thereof. Each series of Bonds or sub-
series of MTNs will mature not later than forty years from
the first day of the month of issuance.
4. As to series or sub-series having an adjustable
interest rate, the initial interest rate for Bonds of such
series or MTNs of such sub-series would be determined in
discussions between the Company and the purchasers thereof
and would be based on the current market rate for comparable
securities. Thereafter, the interest rate on such Bonds or
MTNs would be adjusted according to a pre-established
formula or method of determination ("Floating Rate Bonds")
or would be that rate which, when set, would be sufficient
to remarket the Bonds of such series or MTNs of such sub-
series at a price equal to 100% of their principal amount
("Remarketed Bonds").
5. The interest rate for Floating Rate Bonds after the
initial interest rate period may be set as a percentage of,
or as a specified spread from, a benchmark rate such as the
London Interbank Offered Rate ("LIBOR") or the yield to
maturity of specified United States Treasury securities
("Treasury Rate"), or may be established by reference to
orders received in an auction procedure, and will not exceed
a specified maximum rate not greater than 15% per annum.
Such interest rate may be adjusted at established intervals
or may be adjusted simultaneously with changes in the
designated benchmark rate.
6. The interest rate for Remarketed Bonds after the
initial interest rate period would not be greater than
market rates generally obtainable at the time of remarketing
of bonds having similar maturities, issued by companies of
comparable credit quality and having reasonably comparable
terms, and would not exceed a specified maximum rate, which
will not be greater than 15% per annum.
7. The Supplemental Indenture to the Mortgage creating any
series of Remarketed Bonds or the resolution of the
Company's Board of Directors creating any sub-series of MTNs
would provide that holders thereof would have the right to
tender or be required to tender their Bonds or MTNs at a
price equal to the principal amount thereof, plus any
accrued and unpaid interest thereon, on dates specified in
or established in accordance with the applicable
Supplemental Indenture. A Tender Agent may be appointed to
facilitate the tender of such Bonds or MTNs by holders. Any
holder wishing to have such Bonds or MTNs purchased may be
required to deliver the same during a specified period of
time preceding such purchase date to the Tender Agent, if
one shall have been appointed, or to the Remarketing Agent
appointed to reoffer such tendered Bonds or MTNs for sale.
8. The Company would be obligated to pay amounts equal to
the amounts to be paid to the Remarketing Agent or the
Tender Agent for the purchase of Bonds or MTNs so tendered,
such amounts to be paid by the Company on the dates such
payments by the Remarketing Agent or the Tender Agent are to
be made, reduced by the amount of any other moneys available
therefor, including the proceeds of the sale of such
tendered Bonds or MTNs by the Remarketing Agent. Upon the
delivery of such Bonds or MTNs by holders to the Remarketing
Agent or the Tender Agent for purchase, the Remarketing
Agent would use its best efforts to sell such Bonds or MTNs
at a price equal to 100% of the principal amount thereof.
9. One or more new series of Bonds or sub-series of MTNs
may include terms that deviate from the Securities and
Exchange Commission's (the "Commission") Statement of Policy
Regarding First Mortgage Bonds (Holding Company Act Release
No. 13105, February 16, 1956, as modified by Holding Company
Act Release No. 16369, May 8, 1969) (the "Statement of
Policy") in the following respects:
(a) Redemption and Retirement: The new series of
Bonds or sub-series of MTNs may include (i) provisions for
redemption prior to maturity at redemption prices equal to
certain percentages of the principal amount thereof, (ii)
restrictions on optional redemption for a period of years or
for the life of the issue, and (iii) provisions for the
retirement of all or varying percentages of such series or
sub-series prior to maturity, or for redemption at the
option of the Company or holders thereof on specified dates
at redemption prices equal to the principal amount thereof
together with accrued interest to the date fixed for
redemption and, in the case of redemption at the option of
the Company, a premium thereon equal to a percentage of the
principal amount of the particular series or sub-series
being released.
(b) Sinking Fund: The MTNs will not be, and one
or more series of Bonds may not be, subject to any sinking
fund provisions.
(c) Dividend Covenant: In connection with the
issuance of each new series of Bonds or MTNs, the Company
will reaffirm in the related supplemental indenture the
dividend covenant contained in the Mortgage. This covenant
differs from the Statement of Policy requirement in that it
prohibits dividends or other distributions on common stock
if the amount of such dividends and distributions after
December 31, 1945, would exceed aggregate net income
available for dividends accumulated from and after such date
to and including a date close to the date of payment, plus
$378,000.
(d) Maintenance and Replacement Fund: The Company
has provided in connection with previous issuances of First
Mortgage Bonds and MTNs that its obligations with respect to
the maintenance and replacement fund under the Mortgage
shall terminate on June 2, 2010, or on such earlier date as
the holders of outstanding First Mortgage Bonds and MTNs
shall have consented to the elimination of such obligations.
The Company has obtained consents to the elimination of such
obligations from the purchasers of recently issued series of
First Mortgage Bonds and sub-series of MTNs, and intends to
obtain similar consents from the purchasers of new series of
Bonds and sub-series of MTNs.
(e) Mortgage Terms: The terms of the Mortgage
that will be applicable to new series of Bonds and sub-
series MTNs vary in certain respects from the terms of the
Statement of Policy. (See Exhibit I-1 hereto for
information on these variations, which the Company does not
believe are material.)
To the extent that any new series of Bonds or sub-series of
MTNs deviates from the Statement of Policy in any of the
foregoing respects, the Company hereby requests approval by
the Commission for such deviation.
10. Reference is made to Exhibits A-1, A-2, A-3, B-1 and B-
9 hereto for further information with respect to the terms
of each new series of Bonds and sub-series of MTNs.
Section C. Issuance and Sale of the Debentures
11. The Debentures will be issued under either the
Company's existing Trust Indenture, dated of as July 1,
1991, with Bankers Trust Company, Trustee, (a copy of which
is provided as Exhibit A-6 hereto, or one or more Debenture
Indentures or Subordinated Debenture Indentures, to be
substantially in the forms attached as Exhibits A-7 and A-9,
respectively, such existing Trust Indenture and each such
new Debenture Indenture or Subordinated Debenture
Indenture), as any of the foregoing may be supplemented from
time to time, being herein referred to as a "Debenture
Indenture".
12. Each series of Debentures will be sold at such price,
will bear interest at such rate or rates and will mature on
such date as shall have been be determined at or before the
time of sale. Debentures will not be sold if the fixed
interest rate or initial adjustable interest rate thereon
would exceed the lower of 15% or rates generally obtainable
at the time of pricing for sales of debentures having the
same or reasonably equivalent maturity, issued by companies
of comparable credit quality and having reasonably similar
terms, conditions and features. As to series of Debentures
having an adjustable interest rate, the initial interest
rate for such series would be negotiated by the Company and
the purchasers of such series, based on the current market
rate for comparable debentures. Thereafter, the interest
rate on such Debentures would be adjusted according to a pre-
established formula or method of determination ("Floating
Rate Debentures") or would be that rate which, when set,
would be sufficient to remarket the Debentures of such
series at a price equal to 100% of their principal amount
("Remarketed Debentures").
13. The interest rate for Floating Rate Debentures after
the initial interest rate period would be set as a
percentage of, or as a specified spread from, a benchmark
rate such as LIBOR or the Treasury Rate, or may be
established by reference to orders received in an auction
procedure, and will not exceed a specified maximum rate,
which shall not exceed 15% per annum. Such interest rate
may be adjusted at established intervals or may be adjusted
simultaneously with changes in the benchmark rate.
14. The interest rate for Remarketed Debentures after the
initial interest rate period would not exceed rates
generally obtainable at the time of remarketing of
debentures having the same or reasonably similar maturity,
issued by companies of comparable credit quality and having
the same or reasonably comparable terms and would not exceed
a specified maximum rate not to exceed 15% per annum.
15. The terms of Remarketed Debentures will provide that
holders thereof have the right to tender, or are required to
tender, their Debentures and have them purchased at a price
equal to the principal amount thereof plus accrued and
unpaid interest thereon, on specified dates. A Tender Agent
may be appointed to facilitate the tender of any Debentures
by holders. Any holder of Remarketed Debentures wishing to
have them purchased may be required to deliver the same
during a specified period of time preceding such purchase
date to the Tender Agent, if one shall be appointed, or to
the Remarketing Agent appointed to reoffer the same for
sale.
16. The Company would be obligated to pay amounts equal to
the amounts to be paid to the Remarketing Agent or the
Tender Agent for the purchase of Remarketed Debentures so
tendered, which amounts would be paid by the Company on the
dates such payments by the Remarketing Agent or the Tender
Agent are to be made, reduced by the amount of any other
moneys available therefor, including the proceeds of the
sale of such tendered Debentures by the Remarketing Agent.
Upon the delivery of such Debentures by holders to the
Remarketing Agent or the Tender Agent for purchase, the
Remarketing Agent would use its best efforts to sell the
same at a price equal to 100% of the principal amount
thereof.
17. The price, exclusive of accrued interest, to be paid to
the Company for each such series of Debentures sold at
competitive bidding will be within a range (to be specified
by the Company to prospective purchasers) of 95% to 105% of
the principal amount of such series. Each series of
Debentures will mature not later than forty years from the
first day of the month of issuance. The Company may provide
an insurance policy or standby bank credit facility for the
payment of the principal of, and/or interest and/or premium
on, one or more series of Debentures. One or more of the
Debenture Indentures may provide that the Debentures issued
thereunder may be entitled to a lien on certain assets
pledged or assigned as security thereunder, and may specify
terms for the release of such lien as to some or all such
assets.
18. One or more series of Debentures may include provisions
for redemption prior to maturity at various percentages of
the principal amount thereof, restrictions on optional
redemption for a given number of years and/or provisions for
the mandatory retirement of some or all of such series prior
to maturity.
19. Debentures issued under the Subordinated Debenture
Indenture would be expressly subordinated to Senior
Indebtedness, as defined therein or pursuant thereto, and
may also provide that, subject to certain specified
conditions, payments of interest on such Subordinated
Debentures may be deferred for specified periods (with or
without cumulative protection) without creating a default
with respect thereto. The Company may covenant that, so
long as any Debentures of a particular series remain
outstanding, the Company, subject to specified exceptions,
will not pay cash dividends on common stock subsequent to
the date of such series (other than certain dividends
declared prior to the original issuance of such series).
However, the Company may determine not to include any
provisions restricting its ability to pay common stock
dividends.
20. Reference is made to Exhibits A-6, A-7, A-8, A-9, A-10,
A-11, A-12, B-5 and B-9 hereto for further information with
respect to the terms of each series of Debentures.
Section D. Issuance and Sale of Entity Interests
21. The Company proposes to organize a special purpose
statutory business trust or a special purpose limited
partnership (the "Issuing Entity") for the sole purpose of
issuing the Entity Interests. The business and affairs of
the Issuing Entity would be conducted by one or more
trustees (individually and collectively, the "Trustee").
The Company will, as a result of its ownership of all voting
interest in the Issuing Entity, be entitled to appoint,
remove or replace the Trustee. In the case of a limited
partnership the Company will either (a) act as the general
partner of the Issuing Entity or (b) organize a special
purpose, wholly-owned corporation for the sole purpose of
acting as the general partner of the Issuing Entity (the
"Participating Subsidiary"). In the case of a business
trust, the business and affairs of the trust will be
conducted by one or more trustees (the "Trustee(s)"). The
Company will, as a result of its ownership of all common
securities in the Issuing Entity (see paragraph 21 below),
be entitled to appoint, remove or replace any of, or
increase or reduce the number of, such Trustee(s).
22. The Company will directly or indirectly make an equity
contribution to the Issuing Entity at the time the Entity
Interests are issued and thereby directly or indirectly
acquire all of the voting interest in such Issuing Entity.
The Company's equity contribution to the Issuing Entity will
at all times constitute at least 3% of the aggregate equity
contributions by all securityholders to such Issuing Entity.
23. The Entity Interests, which shall have a stated per
share liquidation preference, will be registered under the
Securities Act of 1933, as amended, by virtue of a
registration statement filed thereunder (the "Entity
Registration Statement"). The form of the Entity
Registration Statement will be filed herein through
incorporation by reference as Exhibit
C-7. The holders of the Entity Interests will be the
holders of preferred interests of the Issuing Entity, and
the amounts paid by such holders for the Entity Interests
will be treated as capital contributions to the Issuing
Entity.
24. The Company may issue from time to time, in one or more
series, Subordinated Debentures (the "Entity Subordinated
Debentures") to the Issuing Entity. The Issuing Entity will
use the proceeds from the sale of its Entity Interests, plus
the equity contributions made to it by either (a) its
general partner (in the case of a limited partnership or (b)
the Company (in the case of a business trusts), to purchase
the Entity Subordinated Debentures. The Entity Subordinated
Debentures will be registered under the Securities Act of
1933, as amended, along with the Entity Interests, pursuant
to the Entity Registration Statement. The Entity
Subordinated Debentures will be issued by the Company
pursuant to a subordinated debenture Indenture (the "Entity
Subordinated Debenture Indenture"), which will be qualified
under the Trust Indenture Act of 1939, as amended. Forms of
the Entity Subordinated Debenture Indenture and the Entity
Subordinated Debenture will be filed by amendment as
Exhibits A-11 and A-12 hereto, respectively.
25. Each series of Entity Subordinated Debentures will be
in an aggregate principal amount not exceeding the aggregate
stated amount of the related Entity Interests and will
mature at such time, not more than 50 years from the date of
issuance thereof, as the Company shall determine at or prior
to the time of issuance. The Entity Subordinated Debenture
Indenture may permit the Entity Subordinated Debentures to
be issued with an initial term thereof and optional
additional terms that together will not exceed 50 years from
the date of issuance. For example, the Entity Subordinated
Debentures may have an initial term of 30 years with the
Company having the right to extend the maturity for up to an
additional 20 years. Prior to maturity, the Company will
pay interest only on the Entity Subordinated Debentures, at
either a fixed or adjustable rate as set forth in the Entity
Subordinated Debenture Indenture. The distribution rates,
payment dates, redemption terms, maturity, and other terms
applicable to each series of Entity Interests will be
substantially identical to the interest rates, payment
dates, redemption, maturity, and other terms applicable to
the Entity Subordinated Debentures relating thereto, and
will be determined by the Issuing Entity at or prior to the
time of issuance. The interest paid by the Company on the
Entity Subordinated Debentures will constitute the only
source of income for the Issuing Entity and will be used by
the Issuing Entity to pay monthly or quarterly (as
determined at the time of the sale of each series)
distributions on the Entity Interests.
26. The Company may also enter into a guaranty (the
"Guaranty") pursuant to which it will unconditionally
guarantee (i) payment of distributions on the Entity
Interests, if and to the extent the Issuing Entity has funds
legally available therefor, (ii) payments to the holders of
Entity Interests of amounts due upon liquidation of the
Issuing Entity or redemption of the Entity Interests, and
(iii) certain additional "gross up" amounts that may be
payable in respect of the Entity Interests, as described in
paragraph 32 below. Such Guaranty (if issued) will be
registered pursuant to the Entity Registration Statement. A
form of the Guaranty will be filed by amendment as Exhibit A-
14 hereto, unless the Company has decided not to provide the
guaranties described in this paragraph.
27. The Company's Entity Subordinated Debentures issued
under the Entity Subordinated Debenture Indenture and the
Guaranty (if issued) will be expressly subordinated to
Senior Indebtedness, as defined therein or pursuant thereto,
and may also provide that payment of interest on such Entity
Subordinated Debentures may be deferred (with or without
cumulative protection) for specified periods not to exceed
60 months, without creating a default with respect thereto,
so long as no dividends are being paid on, or certain
actions are being taken with respect to the retirement of,
the common or preference or preferred stock of the Company
during such period of deferral. In addition, in each Entity
Subordinated Debenture Indenture relating to a series of
Entity Subordinated Debentures, the Company may covenant
that, so long as any Entity Subordinated Debentures of such
series remain outstanding, the Company will not pay cash
dividends on common stock subsequent to the date of such
series of Entity Subordinated Debentures (other than certain
dividends declared prior to the original issuance of such
series) except from credits to retained earnings after such
date, plus $345 million, plus such additional amounts as
shall be approved by the Commission. However, the Company
may determine not to include any provisions restricting its
ability to pay common stock dividends.
28. Distributions on the Entity Interests will be paid
monthly or quarterly (as determined at or prior to ,the time
of sale of each series), will be cumulative and will be
mandatory to the extent that the Issuing Entity has legally
available funds sufficient for such purposes. The
availability of funds will depend entirely upon the Issuing
Entity's receipt of the amounts due under the Entity
Subordinated Debentures. The Issuing Entity will have the
right to defer distributions on the Entity Interests for a
specified period, but only if and to the extent that the
Company defers the interest payments on the Entity
Subordinated Debentures as described in paragraph 27 above.
If distributions on the Entity Interests (including all
previously deferred distributions, if any) are deferred
beyond a period to be specified, then the holders of Entity
Interests will have the right to appoint a special
representative to enforce the Issuing Entity's rights under
the Entity Subordinated Debentures and Guaranty (if issued),
including the right to accelerate the maturity of the Entity
Subordinated Debentures.
29. It is anticipated that interest payments by the Company
on the Entity Subordinated Debentures will be deductible by
it for federal and state income tax purposes, and that the
Issuing Entity will be treated as a trust for federal income
tax purposes. Consequently, the holders of Entity Interests
and the Company will be deemed to have received original
issue discount, rather than dividends, from the Issuing
Entity and will not be entitled to any "dividends received
deduction" therefor under the Internal Revenue Code.
30. One or more series of Entity Interests and Entity
Subordinated Debentures may include provisions for the
mandatory retirement of some or all of such series prior to
maturity. The Entity Interests may be subject to redemption,
in whole or in part, on and after a specified date (the
"Earliest Redemption Date") at the option of the Issuing
Entity, with the consent of the Company, at a price equal to
their stated liquidation preference plus any accrued and
unpaid distributions (the "Redemption Price"). The Earliest
Redemption Date will be determined based upon, among other
factors, market conditions at the time of issuance but will
be not later than five years after the date of issuance.
The Entity Subordinated Debenture Indenture and the Entity
Agreement (as defined in paragraph 34 below) may set forth
additional provisions governing the optional redemption of
the Entity Interests. It is expected that the Issuing
Entity will have the option, with the consent of the
Company, to redeem the Entity Interests at the Redemption
Price upon the occurrence of specified adverse tax events
(each a "Tax Event"). Examples of possible Tax Events are
(a) the Issuing Entity becoming subject to federal income
tax with respect to interest received on the Entity
Subordinated Debentures or otherwise not being treated as a
partnership or a trust, as the case maybe, for federal
income tax purposes, (b) interest payments by the Company on
the Entity Subordinated Debentures being determined not to
be deductible for federal income tax purposes, or (c) the
Issuing Entity becoming subject to more than a minimal
amount of other taxes, duties or governmental impositions.
The Entity Subordinated Debenture Indenture and the Entity
Agreement may also provide that the Entity Interests are
subject to optional or mandatory redemption upon the
occurrence of specified adverse regulatory events (each a
"Regulatory Event"). An example of a possible Regulatory
Event is the Issuing Entity becoming subject to regulation
as an "investment company" under the Investment Company Act
of 1940, as amended.
31. The Company may also reserve the right, upon the
occurrence of a Tax Event or a Regulatory Event, to exchange
the Entity Subordinated Debentures for the Entity Interests
or otherwise to distribute the Entity Subordinated
Debentures to the holders of Entity Interests, whereupon the
Entity Interests would be canceled.
32. If, as a result of (a) the Entity Subordinated
Debentures not being treated as indebtedness for federal
income tax purposes or (b) the Issuing Entity not being
treated as either a partnership or a trust, as the case may
be, for federal income tax purposes, the Issuing Entity is
required under applicable tax laws to withhold or deduct
from payments on the Entity Interests amounts that otherwise
would not be required to be withheld or deducted, the
Issuing Entity may also have the obligation, if the Entity
Interests are not redeemed (as discussed in paragraph 30
above) or exchanged (as discussed in paragraph 31 above), to
increase or "gross up" such payments so that the holders of
Entity Interests will receive the same amount after such
withholding or deduction as they would have received if no
such withholding or deduction were required.
33. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Issuing
Entity, holders of Entity Interests will be entitled to
receive, out of the assets of the Issuing Entity available
for distribution to the preferred securityholders, before
any distribution of assets to the Company, an amount equal
to the stated liquidation preference of the Entity Interests
plus any accrued and unpaid distributions.
34. Under the Declaration of Trust that shall govern the
activities of the Issuing Entity upon the issuance of the
Entity Interests (the "Entity Agreement"), the activities of
the Issuing Entity will be limited solely to (i) the
issuance and sale of Entity Interests, (ii) the use of the
proceeds thereof and the equity contributions by the Company
to purchase the Entity Subordinated Debentures, (iii) the
receipt of interest on the Entity Subordinated Debentures,
and (iv) the payment of distributions on the Entity
Interests. A form of the Entity Agreement will be filed by
amendment as Exhibit A-13.
35. The Entity Agreement will further state that the
Trustee , shall manage and control the Issuing Entity's
business and affairs and be responsible for all liabilities
and obligations of the Issuing Entity, and that the voting
interests shall not be transferable except for a transfer
made (a) with the consent of all holders, (b) to a direct or
indirect wholly-owned subsidiary or (c) in the event of
merger, subject to certain conditions.
36. Because the Entity Interests will be supported by the
Company's Entity Subordinated Debentures and Guaranty (if
issued), and the distributions to holders of Entity
Interests will be paid out of the interest payments on such
Entity Subordinated Debentures or pursuant to such Guaranty
(if issued), the Entity Agreement will not include any
interest or distribution coverage or capitalization ratio
restrictions on the ability to issue and sell additional
Entity Interests. Such restrictions would not be necessary,
and the capital structure of the Issuing Entity would not be
relevant, because the interest payments of the Company on
the Entity Subordinated Debentures will be sufficient to
service fully the distributions on Entity Interests. For
this reason, financial statements for the Issuing Entity are
not included with this Application-Declaration.
37. Each series of Entity Interests, and any corresponding
series of Entity Subordinated Debentures, will be sold at
such price and entitled to receive such distributions or
interest payments on such periodic basis as shall have been
determined at the time of sale. No series of Entity
Interests or corresponding series of Entity Subordinated
Debentures will be sold if the initial distribution or
interest rate thereon would exceed the lower of 15% per
annum or market rates generally obtainable at the time of
pricing for sales of similar interests having a reasonably
equivalent maturity, issued by entities (including without
limitation business trusts or partnerships formed by other
companies, of reasonably comparable credit quality and
having reasonably similar terms, conditions and features.)
The initial dividend or interest rate for any Entity
Interests of such series having an adjustable distribution
or interest rate will be determined in negotiations between
the Company and the purchasers of such series and be based
on then current market rates for comparable interests.
Thereafter, the dividend or interest rate on any such Entity
Interests will be adjusted according to a pre-established
formula or method of determination ("Floating Rate Entity
Interests") or will be a rate which, at the time of
remarketing, would be sufficient to remarket the Entity
Interests of such series at their principal amount
("Remarketed Entity Interests").
38. The dividend or interest rate for Floating Rate Entity
Interests after the initial dividend or interest rate period
will be set as a percentage of, or as a specified spread
from, a benchmark rate, such as LIBOR or the Treasury Rate,
or may be established by reference to orders received in an
auction procedure, and will not exceed a specified maximum
rate no greater than 15% per annum. Such dividend or
interest rate may be adjusted at established intervals or
may be adjusted simultaneously with changes in the benchmark
rate.
39. The dividend or interest rate for Remarketed Entity
Interests after the initial dividend or interest rate period
will not be greater than rates generally obtainable at the
time of remarketing of similar interests having the same or
reasonably equivalent maturity, issued by entities formed by
other companies of reasonably comparable credit quality and
having reasonably comparable terms, and will not exceed a
specified maximum rate no greater than 15% per annum.
40. The Entity Agreement would provide that holders of
Remarketed Entity Interests would have the right to tender,
or could be required to tender, their Equity Interests and
have them purchased at a price equal to the stated value
thereof plus accrued and unpaid distributions thereon, on
dates specified in, or established in accordance with, the
Entity Agreement. A Tender Agent may be appointed to
facilitate the tender of Remarketed Equity Interests by
holders. Any holder of Remarketed Entity Interests wishing
to have the same purchased may be required to deliver such
Entity Interests during a specified period preceding such
purchase date to the Tender Agent, if one shall have been
appointed, or to the Remarketing Agent appointed to reoffer
such tendered Entity Interests for sale.
41. The Issuing Entity would be obligated to pay amounts
equal to the amounts to be paid to the Remarketing Agent or
the Tender Agent pursuant to the Entity Agreement for the
purchase of Remarketed Entity Interests so tendered (on the
dates such payments by the Remarketing Agent or the Tender
Agent are to be made), reduced by the amount of any other
moneys available therefor, including the proceeds of the
sale of such tendered Entity Interests by the Remarketing
Agent. Upon the delivery of such Entity Interests by
holders thereof to the Remarketing Agent or the Tender Agent
for purchase, the Remarketing Agent will use its best
efforts to sell such Entity Interests at a price equal to
the stated value of such Entity Interests.
42. The price, exclusive of accrued distributions, to be
paid to the Issuing Entity for each such series of Entity
Interests to be sold at competitive bidding will be within a
range (to be specified by the Company to prospective
purchasers) from 95% to 105% of the principal amount of such
series of Entity Interests.
Section E. Issuance and Sale of Preferred Stock.
43. The Company expects that each series of the Preferred
will consist of shares of the Company's Preferred Stock,
Cumulative, $100 Par Value ("$100 Preferred"), or Preferred
Stock, Cumulative, without par value ("No Par Preferred")
(collectively "Preferred Stock"), as currently authorized by
the Company's Restated Articles of Incorporation, as amended
("Articles"). In accordance with the Articles, the Company
had authorized and unissued at June 30, 1995, 3,708,690
shares of $100 Preferred and 10,000,000 shares of No Par
Preferred.
44. The price, exclusive of accumulated dividends, to be
paid to the Company for each series of Preferred will be
determined at or prior to the time of sale and will not be
less than par or stated value on a per share basis. With
respect to any series of Preferred to be sold at competitive
bidding, the price to be paid to the Company will be not
less than the par or stated value nor more than 102.75%
thereof per share plus accumulated dividends, if any. No
series of Preferred would be sold if the dividend rate
thereon would exceed that generally obtainable at the time
of pricing for sales of preferred stock of the same or
reasonably similar par or stated value, issued by companies
of the same or reasonably comparable credit quality and
having similar terms, conditions and features.
45. The terms of one or more series of Preferred may
deviate from the Commission's Statement of Policy Regarding
Preferred Stock Subject to the Public Utility Holding
Company Act of 1935 (Holding Company Act Release No. 13106,
February 16, 1956, as modified by Holding Company Act
Release No. 16758, June 22, 1970), in the following
respects:
(a) Redemption provisions: One or more series of
Preferred may include provisions for redemption at various
redemption prices and restrictions on optional redemption
for a given number of years or the life of the issue. One
or more series of Preferred may include provisions for a
sinking fund, which would be designed to redeem (or cause to
be repurchased in lieu of redemption) annually commencing a
specified number of years after the first day of the
calendar month in which such series is issued, at the par or
stated value per share of such series plus any accrued and
unpaid dividends, a number of shares equal to a given
percentage of the total number of shares of such series,
with the Company having an option to redeem (or purchase in
lieu of redemption) annually an additional number of shares
up to a given percentage of the total number of shares of
such series. Any such sinking fund provisions would be
designed to redeem all outstanding shares of such series not
later than 30 years after the date of original issuance
thereof.
(b) Articles: The terms of the Articles, which
will be applicable to the series of Preferred, currently do
and in the future may vary in certain respects from the
terms of the Statement of Policy Regarding Preferred Stock,
cited above. See Exhibit
I-2 hereto for information on these variations, which the
Company does not believe are material.
To the extent that the terms of any new series of Preferred
deviate from the Statement of Policy Regarding Preferred
Stock in any of the foregoing respects, the Company hereby
requests approval by the Commission for such deviation.
46. Depending upon market conditions at the time of the
offering of a given series of the Preferred, if the Company
determines that preferred stock having a public offering
price of less than $100 per share is likely to have a
materially better market reception than shares of $100
Preferred, and it is not deemed appropriate to use No Par
Preferred, the Company may issue and sell such series of
$100 Preferred to underwriters for deposit with a bank or
trust company ("Depositary"). The underwriters would then
receive from the Depositary and deliver to the purchasers,
in a subsequent public offering, shares of depositary
preferred stock ("Depositary Preferred"), each representing
a stated fraction of a share of the new series of $100
Preferred. Depositary Preferred would be evidenced by
depositary receipts entitling each owner thereof
proportionally to all the rights and preferences to which
holders of the series of $100 Preferred are entitled
(including dividend, redemption and voting rights). A
holder of Depositary Preferred would be entitled to
surrender Depositary Preferred to the Depositary and receive
the number of whole shares of $100 Preferred represented
thereby; and a holder of $100 Preferred would be entitled to
surrender shares of $100 Preferred to the Depositary and
receive a proportional amount of Depositary Preferred.
47. For further information as to the terms of the
Preferred, including possible depositary arrangements,
reference is made to Exhibits A-15, A-16, A-17, A-18, A-19,
B-2 and B-10.
Section F Issuance and Sale of Preference Stock
48. The Company expects that each series of the Preference
will consist of shares of the Company's class of Preference
Stock without par value, as currently authorized by the
Articles. In accordance with the Articles, the Company had
authorized and unissued at September 30, 1995, 14,000,000
shares of Preference.
49. The price to be paid to the Company for each series of
Preference will be determined at the time of sale and will
not be less than or the stated value on a per share basis.
With respect to any series of Preference to be sold at
competitive bidding, the price to be paid to the Company
will be not less than 100% of the par or stated value
thereof nor more than 103% thereof per share, plus accrued
dividends, if any. No series of Preference would be sold if
the dividend rate thereon would exceed that generally
obtainable at the time of pricing for sales of preference or
similar stock issued by companies of the same or reasonably
comparable credit quality and having reasonably similar
terms, conditions and features.
50. The terms of one or more series of Preference may
deviate from the Commission's Statement of Policy Regarding
Preferred Stock Subject to the Public Utility Holding
Company Act of 1935 (Holding Company Act Release No. 13106,
February 16, 1956, as modified by Holding Company Act
Release No. 16758, June 22, 1970), in the following
respects:
(a) Redemption provisions: One or more series of
Preference may include provisions for redemption at various
redemption prices and/or restrictions on optional redemption
for a given number of years or the life of the issue. One
or more series of Preference may include provisions for a
sinking fund, which would be designed to redeem (or cause to
be repurchased in lieu of redemption) commencing on a
specified date or number of years after the first day of the
calendar month in which such series is issued, at the stated
value per share of such series plus any accumulated and
unpaid dividends, of all or a portion of the total number of
shares of such series. Any such sinking fund provisions
would be designed to redeem all outstanding shares of such
series not later than 30 years after the date of original
issuance thereof.
(b) Articles: The terms of the Articles
applicable to the Preference currently do and in the future
may vary in certain respects from the terms of the Statement
of Policy Regarding Preferred Stock, cited above. See
Exhibit I-2 hereto for information on these variations,
which the Company does not believe are material.
To the extent that the terms of any new series of
Preference deviate from the Statement of Policy Regarding
Preferred Stock in any of the foregoing respects, the
Company hereby requests approval by the Commission for any
such deviation.
51. For further information as to the terms of the
Preference, reference is made to Exhibits A-16, A-20 and B-
10.
Section G. General Matters Relating to Bonds, MTNs,
Debentures, Entity
Interests Preferred and/or Preference
52. The Company anticipates that the issuance and sale of
each series of Bonds, MTNs, Debentures, Entity Interests,
Preferred and/or Preference will be by means of competitive
bidding, or negotiated public offering or private placement
with institutional investors in order to secure the
advantages of an advance marketing effort and/or the best
available terms.
53. Reference is made to Exhibits B-1 through B-9 for
information with respect to, among other things, the
procedures to be followed in connection with the issuance
and sale of Bonds, MTNs, Debentures, Entity Interests,
Preferred and/or Preference. Sale(s) of Bonds, MTNs,
Debentures, Entity Interests, Preferred and/or Preference
are separate transactions not contingent upon one another.
54. The Company proposes to use the net proceeds derived
from the issuance and sale of Bonds, MTNs, Debentures,
Entity Interests, Preferred and/or Preference for general
corporate purposes including, but not limited to the conduct
of its business as an electric and gas utility, the
repayment of outstanding securities when due and/or the
possible redemption, acquisition or refunding of certain
outstanding securities prior to their stated maturity or due
date. The Company's request for authorization for such sales
is in part to provide the flexibility to permit a rapid
response to changing market conditions if it becomes
beneficial for the Company to refinance, refund or otherwise
acquire outstanding securities. (See "Acquisition Program"
below.)
55. The Mortgage and Articles include earnings coverage
tests for the issuance of additional Bonds, MTNs, and
Preferred, respectively. Reference is made to Exhibits I-1
and I-2 hereto for information on the amounts of such
securities issuable based on such tests. The Company will
not issue any Bonds, MTNs, Debentures, Entity Interests,
Preferred and/or Preference unless any and all applicable
coverage tests or other binding legal requirements are
satisfied.
Section H. Issuance and Sale of Tax-Exempt Bonds and
Related Transactions
56. The Company also may seek to enter into arrangements
for the issuance of Tax-Exempt Bonds, and the Company
proposes from time to time, through December 31, 2000, to
enter into one or more leases, subleases, installment sale
agreements, refunding agreements or other agreements and/or
supplements and/or amendments thereto (each and all of the
foregoing being referred to herein as the "Facilities
Agreement") with one or more issuing governmental
authorities (each an "Issuer") that will contemplate the
issuance and sale by the Issuer(s) of one or more series of
Tax-Exempt Bonds in an aggregate principal amount not to
exceed $250 million pursuant to one or more trust indentures
and/or supplements thereto (individually and collectively,
the "Indenture") between the Issuer and one or more trustees
(individually and collectively, the "Trustee").
57. The proceeds of the sale of Tax-Exempt Bonds, net of
any underwriters' discounts or other expenses payable from
proceeds, will be applied to finance certain pollution
control facilities including but not limited to sewage
and/or solid waste disposal facilities (referred to herein
individually and collectively as the "Facilities") that have
not heretofore been the subject of such financing, or to
refinance outstanding tax-exempt bonds issued for that
purpose. Pursuant to the terms of each Facilities
Agreement, the Company may commit to purchase, acquire,
construct, install, operate and/or maintain the Facilities
for or on behalf of the Issuer. The Issuer will agree to pay
to the Company an amount equal to the lesser of (a) the
total amount of the proceeds from the sale of the Tax-Exempt
Bonds or (b) the total cost of the Facilities, as the case
may be. Pursuant to the provisions of the Facilities
Agreement, the Issuer will transfer or make the Facilities
available to the Company upon terms sufficient to provide
for payment by the Issuer of the principal or redemption
price of, premium (if any) and interest on, and other
amounts owing with respect to, the Tax-Exempt Bonds,
together with related expenses. Such payments will be paid
by the Company directly to the Trustee under to the
Indenture. Under the Facilities Agreement, the Company may
also be obligated to pay (i) the fees and charges of the
Trustee and any registrar or paying agent, if any, under the
Indenture, and the Remarketing Agent and the Tender Agent,
if any, as hereinafter referred to, (ii) all expenses
incurred by the Issuer in connection with its rights and
obligations under the Facilities Agreement, (iii) all
expenses necessarily incurred by the Issuer or the Trustee
under the Indenture in connection with the transfer or
exchange of Tax-Exempt Bonds, and (iv) certain other fees
and expenses.
58. The Indenture may provide that, upon the occurrence of
certain events relating to the operation of the Facilities,
a series of Tax-Exempt Bonds will be redeemable by the
Issuer at the direction of the Company. Any series of Tax-
Exempt Bonds may be made subject to a mandatory cash sinking
fund under which certain principal amounts and/or specific
portions of the Tax-Exempt Bonds of such series are to be
retired at stated times, and may be subject to mandatory
redemption in certain other cases. The payments by the
Company under the Facilities Agreement in such circumstances
will be sufficient (together with any other moneys held by
the Trustee under the Indenture and available therefor) to
pay the principal of all Tax-Exempt Bonds to be redeemed or
retired, the premium (if any) thereon, and interest thereon
accrued or to accrue to the redemption date thereof.
59. Each series of the Tax-Exempt Bonds will mature not
earlier than one year nor later than forty years from the
date of issuance. The Tax-Exempt Bonds may be subject to
optional redemption by the Issuer, at the direction of the
Company, in whole or in part, at the redemption prices
(expressed as percentages of the principal amount thereof)
plus accrued interest to the redemption date, and at such
times, as are set forth in the Indenture.
60. The Facilities Agreement and the Indenture may provide
for a fixed and/or adjustable interest rate for one or more
series of Tax-Exempt Bonds. No series of Tax-Exempt Bonds
would be sold if the fixed interest rate or initial
adjustable interest rate thereon would exceed market rates
generally obtainable at the time of pricing for sales of tax-
exempt bonds having a reasonably similar maturity, issued
for the benefit of companies of a reasonably comparable
credit quality and having reasonably similar terms,
conditions and features. The initial interest rate for Tax-
Exempt Bonds of a series having an adjustable interest rate
would be determined in discussions between the Company and
the purchasers of such series and be based on the current
tax-exempt market rates for comparable bonds having a
maturity comparable to the length of the initial Rate Period
(hereinafter referred to). For each Rate Period thereafter,
the interest rate on such Tax-Exempt Bonds would be a rate
that when set, would be sufficient to remarket the Tax-
Exempt Bonds of such series at a price equal to 100% of
their principal amount. Such subsequent interest rates
would not exceed the lower of 15% per annum or rates
generally obtainable at the time of remarketing of tax-
exempt bonds having the same or reasonably similar
maturities, issued for the benefit of companies of
reasonably comparable credit quality and having the same or
reasonably similar terms.
61. The term "Rate Period", as used herein, refers to a
period during which the interest rate on Tax-Exempt Bonds of
a particular series, while bearing an adjustable rate is
fixed. The initial Rate Period would commence on the date
when interest begins to accrue on the Tax-Exempt Bonds of
such series. The length of each Rate Period would be not
less than one day nor more than 30 years.
62. The Facilities Agreement and the Indenture may provide
that the holders of Tax-Exempt Bonds will have the right to
tender or be required to tender their Tax-Exempt Bonds and
have them purchased at a price equal to 100% of the
principal amount thereof plus any accrued and unpaid
interest thereon, on dates specified in, or established in
accordance with, the Indenture. A Tender Agent may be
appointed to facilitate the tender of Tax-Exempt Bonds by
the holders thereof. Any holders of Tax-Exempt Bonds
wishing to have such Tax-Exempt Bonds purchased may be
required to deliver the same during a specified period of
time preceding such purchase date to the Tender Agent, if
one shall be appointed, or to the Remarketing Agent
appointed to reoffer such tendered Tax-Exempt Bonds for
sale.
63. Under the Facilities Agreement, the Company will be
obligated to pay amounts equal to the amounts to be paid by
the Remarketing Agent or the Tender Agent for the purchase
of Tax-Exempt Bonds so tendered, such amounts to be paid by
the Company on the dates when payments by the Remarketing
Agent or the Tender Agent are to be made; provided, however,
that the obligation of the Company to make any such payment
under the Facilities Agreement will be reduced by the amount
of any other moneys available therefor, including the
proceeds of the sale of tendered Tax-Exempt Bonds by the
Remarketing Agent.
64. Upon the delivery of Tax-Exempt Bonds by holders to the
Remarketing Agent or the Tender Agent for purchase, the
Remarketing Agent will be obligated to use its best efforts
to sell such Tax-Exempt Bonds at a price equal to 100% of
the principal amount thereof.
65. In order to obtain a more favorable rating on
individual series of Tax-Exempt Bonds, and thereby improve
the marketability thereof, the Company may arrange for one
or more irrevocable letter(s) of credit for an aggregate
amount up to $275 million from one or more banks
(individually and collectively, the "Bank") in favor of the
Trustee. In that event, payments with respect to principal
of, premium, if any, and interest on, and purchase
obligations in connection with, such series of Tax-Exempt
Bonds coming due during the term of such letter of credit,
which would not to exceed 15 years, would be secured by and
payable from funds (if any) drawn under, the letter of
credit. To induce the Bank to issue such a letter of
credit, the Company would enter into one or more
reimbursement agreements (each a "Reimbursement Agreement")
with the Bank pursuant to which the Company would agree to
reimburse the Bank for funds drawn under such letter of
credit within a specified period after the date such funds
are drawn, with interest thereon at a rate that would not
exceed rates generally obtainable at the time of entering
into the Reimbursement Agreement by companies of reasonably
comparable credit quality on letters of credit having the
same or reasonably comparable terms and, in any event, not
in excess of the Bank's prime commercial lending rate plus
2%. The terms of the Reimbursement Agreement would
correspond to the terms in the letter of credit.
66. It is anticipated that the Reimbursement Agreement
would require the payment in advance by the Company to the
Bank of letter of credit fees not to exceed 1%, and annual
fees not to exceed 1-1/4%, of the face amount of the letter
of credit. Any such letter of credit would expire or be
terminable prior to the maturity date of the series of Tax-
Exempt Bonds that such letter of credit supported and, in
connection with such expiration or termination, such series
of Tax-Exempt Bonds could be made subject to mandatory
redemption or purchase on or prior to the date of expiration
or termination of such letter of credit, subject to the
rights of owners of Tax-Exempt Bonds of such series not to
have their Tax-Exempt Bonds redeemed or purchased.
Provision may be made, as to any such series of Tax-Exempt
Bonds, for extension of the term of such letter of credit or
for the replacement thereof, upon its expiration or
termination, by another letter of credit (having
substantially the same terms as the original letter of
credit) from the Bank or another bank. Such extended or
replacement letters of credit would expire not later than
the final maturity date of the related Tax-Exempt Bonds.
67. In addition or as an alternative to the credit support
provided by a letter of credit, in order to obtain a more
favorable rating on one or more series of Tax-Exempt Bonds
and improve the marketability thereof, the Company may
provide (a) an insurance policy for the payment of the
principal of and/or interest and/or premium on one or more
series of Tax-Exempt Bonds, and/or (b) security for the
holders of Tax-Exempt Bonds and/or the Bank through the
issuance and pledge of one or more new series of Bonds
and/or MTNs and/or Debentures ("Collateral Securities").
Premiums on such insurance policies will not exceed premiums
generally obtainable at the time of entering into the
insurance arrangements by companies of comparable credit
quality on insurance policies having comparable terms.
Collateral Securities would be issued and delivered to the
Trustee under the Indenture and/or to the Bank to evidence,
in part, and secure the Company's obligations under the
applicable Facilities Agreement and/or the Company's
obligations to reimburse the Bank under the Reimbursement
Agreement. The principal amount of and interest rate borne
by the Collateral Securities could be determined in several
ways. First, if the series of Tax-Exempt Bonds bears a
fixed interest rate, Collateral Securities could be issued
in a principal amount equal to the principal amount of such
series and bear interest at a rate equal to the rate of
interest on such series. Secondly, non-interest bearing
Collateral Securities could be issued in a principal amount
equivalent to the principal amount of such series plus an
amount equal to interest thereon for a specified period.
Thirdly, Collateral Securities could be issued in a
principal amount equivalent to the principal amount of such
series plus an amount equal to interest on such series for a
specified period, but carry a fixed interest rate that would
be lower than the fixed interest rate of the series of Tax-
Exempt Bonds. Fourthly, Collateral Securities could be
issued in a principal amount equivalent to the principal
amount of the series of Tax-Exempt Bonds and bear interest
at an adjustable rate of interest varying with the rate of
interest born by such series of Tax-Exempt Bonds, but having
a "cap" (not greater than 13%) above which the interest on
Collateral Securities could not rise. For further
information with respect to the Reimbursement Agreement, the
proposed insurance arrangement and the Collateral
Securities, reference is made to Exhibits A-6, A-7, A-8, A-
22, A-23, B-4, B-6, B-10 and B-11. The Company will not use
a letter of credit, insurance arrangements and/or Collateral
Securities, or combination thereof, to secure any series of
Tax-Exempt Bonds unless the resulting effective interest
cost savings on such series is greater than the total cost
of providing such additional credit support.
68. Each series of the Collateral Securities that bears
interest would bear interest at a fixed interest rate or
initial adjustable interest rate not to exceed 15%. The
maximum aggregate principal amount of the Collateral
Securities would be $275 million, which would be in addition
to the aggregate limitation on the Bonds, MTNs and/or
Debentures described in Section B above. The terms of the
Collateral Securities relating to maturity, interest payment
dates, if any, redemption provisions and acceleration will
correspond to the terms of the related Tax-Exempt Bonds.
The terms of each series of the Collateral Securities will
not vary during the life of such series except for the
interest rate of any such series that bears interest at an
adjustable rate.
69. For further information with respect to the terms of
the Facilities Agreement and Indenture, reference is made to
Exhibits A-20 and B-3.
70. Each series of Tax-Exempt Bonds may be sold by the
Issuer pursuant to arrangements with an underwriter or a
group of underwriters, or by private placement, in a
negotiated sale or sales. While the Company may not be
party to the underwriting or placement arrangements, such
arrangements will assure that the terms of each series of
Tax-Exempt Bonds, and their sale by the Issuer(s), are
satisfactory to the Company; and the Company will provide
certain related representations and indemnities for
liabilities arising from material misstatements or omissions
in disclosures made by the Company in connection with the
issuance of Tax-Exempt Bonds. The Company anticipates that
the interest payable on Tax-Exempt Bonds will be not
includable in the gross income of the holders thereof for
certain state income tax purposes in the state of the
Issuer, and for federal income tax purposes under provisions
of the Internal Revenue Code of 1986, as amended, (except
for interest on any Tax-Exempt Bond during a period in which
it is held by a person who is a "substantial user" of the
Facilities or a "related person" within the meaning of
Section 147(a) of such Code). In general, the interest
rates on tax-exempt bonds have been, and are expected to be,
lower than the interest rates on bonds of similar tenor,
maturities and quality, on which interest is subject to
federal income tax.
Section I. Acquisition Program
71. The Company proposes to use other available funds, in
addition to or as an alternative to the proceeds from the
sale of Bonds, MTNs, Debentures, Entity Interests,
Preferred, Preference and/or Tax-Exempt Bonds, to acquire by
tender offer, open market or negotiated purchases or
otherwise, at any time or from time to time during the
period through December 31, 2000, in whole or in part, prior
to their respective maturities (subject to any limitations
or conditions bearing upon the redemption or acquisition of
particular series) up to $1.55 billion aggregate principal
amount and par and/or stated value of (i) one or more series
of the Company's outstanding First Mortgage Bonds or sub-
series of MTNs, (ii) one or more series of the Company's
outstanding debentures, (iii) one or more series of the
Company's outstanding Preferred, (iv) the Company's
outstanding series of Preference Stock , (v) one or more
series of outstanding pollution control revenue bonds and/or
industrial development revenue bonds heretofore issued for
the benefit of the Company, and/or (vi) one or more series
of other outstanding securities of the Company (any and all
of the foregoing in clauses (i) through this clause (vi)
being referred to herein as "Outstanding Securities"). Such
program is herein referred to as the "New Acquisition
Program".
72. The Company is currently precluded from redeeming
certain series or sub-series of the Outstanding Securities
due to refunding or other redemption restrictions.
Accordingly, the Company may repurchase for cash all or a
portion of one or more such series or sub-series of
Outstanding Securities through tender offers and/or
negotiated, open market or other forms of purchase, subject
to any limitations or conditions on the acquisition of
particular series or sub-series. The Company may also
choose to acquire Outstanding Securities of series or sub-
series that are not subject to refunding or other redemption
limitations by means of tender offers and/or negotiated,
open market or other forms of purchases (subject to any
limitations or conditions on acquisition of particular
series or sub-series) if such acquisitions are more
beneficial to the Company than redemption at the applicable
redemption price. If any Outstanding Securities are
acquired by tender offer, the Company may offer to acquire
specified amounts of a particular series or sub-series or an
entire series or sub-series of such Outstanding Securities.
73. The Company will not use the proceeds from the sale of
Bonds, MTNs, Debentures, Entity Interests, Preferred,
Preference and/or Tax-Exempt Bonds to enter into refinancing
transactions unless (A) the estimated present value savings
derived from the net difference between interest or dividend
payments on a new issue of comparable securities and those
securities refunded is, on an after-tax basis, greater than
the present value of all repurchasing, redemption, tendering
and issuing costs, assuming an appropriate discount rate,
determined on the basis of the then estimated after-tax cost
of capital of the Company, or (B) the Company shall have
notified the Commission of the proposed refinancing
transaction (including the terms thereof) by post-effective
amendment hereto and shall have obtained appropriate
supplemental authorization from the Commission to consummate
such transaction.
74. The authority sought hereby is in addition to any
acquisitions, retirements or redemptions that may be
effected by the Company pursuant to the exemptions set forth
in Rule 42 under the Holding Company Act or other rules or
orders of the Commission from time to time in effect.
Section J. Other
75. The proceeds to be received from the issuance and sale
of the Bonds, MTNs, Debentures, Entity Interests, Preferred,
Preference and Tax-Exempt Bonds will not be used to invest
directly or indirectly in an exempt wholesale generator
("EWG") or foreign utility company ("FUCO"), as defined in
Section 32 or 33, respectively, of the Holding Company Act.
If the proceeds of such sales are used to refund outstanding
securities, any savings derived from the refunding
transaction will not be used to acquire or otherwise invest
in an EWG or FUCO. Information with respect to Entergy
Corporation's EWG investments will be supplied by amendment.
76. The proposed transactions are also subject to Rule 54.
In determining whether to approve the issue or sale of a
security by a registered holding company for purposes other
than the acquisition of an EWG or FUCO, or transactions by
such registered holding company or its subsidiaries other
than with respect to EWGs or FUCOs, the Commission shall not
consider the effect of the capitalization or earnings of any
subsidiary which is an EWG or FUCO upon the registered
holding company system if Rules 53(a), (b) and (c) are
satisfied. In that regard, assuming consummation of the
transactions proposed in this application, all of the
conditions set forth in Rule 53(a) are and will be satisfied
and none of the conditions set forth in Rule 53(b) exists
or, as a result thereof, will exist.
77. Entergy's "aggregate investment" in EWGs and FUCOs was
approximately $205 million, representing approximately 8.6%
of the Entergy System's consolidated retained earnings as of
September 30, 1995. Furthermore, Entergy has complied with
and will continue to comply with the record keeping
requirements of Rule 53(a)(2) concerning affiliated EWGs and
FUCOs. In addition, as required by Rule 53(a)(3), no more
than 2% of the employees of the Entergy System's domestic
public utility subsidiary companies would render services to
affiliated EWGs and FUCOs. Finally, none of the conditions
set forth in Rule 53(b), under which the provisions of Rule
53 would not be available, have been met.
Item 2. Fees, Commissions and Expenses.
Fees and expenses to be incurred in connection with the
issuance and sale of Bonds, MTNs, Debentures, Entity
Interests, Preferred, Preference and/or Tax-Exempt Bonds
will be supplied by amendment, and are not expected to
deviate materially from fees customarily incurred in similar
transactions by other public utility issuers.
The fees, commissions and expenses of the underwriters
expected to be incurred with respect to the Bonds, MTNs,
Debentures, Entity Interests, Preferred, Preference or Tax-
Exempt Bonds will not exceed the lesser of 2% (or in the
case of Debentures issued under the Subordinated Debenture
Indenture or Entity Interests, 3.25%) of or par or the
stated value, as applicable the principal amount of the
Bonds, MTNs, Debentures, Entity Interests, Preferred and
Preference or Tax-Exempt Bonds, respectively, to be sold or
those generally paid at the time of pricing for sales of
first mortgage bonds, medium-term notes, debentures,
subsidiary interests, preferred stock, preference stock or
tax-exempt bonds, respectively, having the same maturity,
issued by companies of comparable credit quality and having
similar terms, conditions and features.
Item 3. Applicable Statutory Provisions
Section A. Bonds, MTNs, Debentures, Entity Interests,
Preferred and Preference
The Company believes that Sections 6(a) and 7 of the
Holding Company Act and Rules 23 and 24 thereunder apply to
the proposed issuance(s) and sale(s) of the Bonds, MTNs,
Debentures, Entity Interests, Preferred and Preference as
well as to the potential exchange of Entity Interests for
Entity Subordinated Debentures.
The Company believes that Sections 9(a), 10 and 12(b)
of the Holding Company Act and Rule 45 thereunder apply to
the formation of the Issuing Entity, the acquisition of
voting interests in the Issuing Entity, the Company's equity
contributions to the Issuing Entity, the Company's potential
acquisition of shares of the capital stock of the
Participating Subsidiary, the acquisition by the
Participating Subsidiary of voting interests in the Issuing
Entity, and the Issuing Entity's acquisition of the Entity
Subordinated Debentures and the Guaranty.
Section B. Tax Exempt Financing
The Sections of the Holding Company Act and the rules
thereunder that the Company considers may be applicable to
the tax-exempt financing of the Facilities are set forth
below:
(i) Disposition of Section 12(d) and
Facilities Rule 44
(ii) Reacquisition of Sections 9(a) and
Facilities 10
(iii) Reimbursement Sections 6(a) and
Agreement 7
(iv) Issuance and Pledge Sections 6(a) and
of Collateral Bonds 7
(v) Facilities Sections 6(a) and
Agreement 7
Section C. Acquisition Program
The Company believes that Sections 9(a), 10 and 12(c)
of the Holding Company Act and amended Rule 42 thereunder
apply to the proposed acquisition of Outstanding Securities.
Pursuant to amended Rule 42, the Company may acquire, redeem
and/or retire any of the Outstanding Securities (other than
Tax-Exempt Bonds) without prior Commission approval.
In the event that the Commission deems any other
section of the Holding Company Act or rule thereunder to be
applicable, the Company requests that the Commission's order
or orders herein also be issued under and with respect to
such other section or rule.
Item 4. Regulatory Approval
No state regulatory body or agency and no federal
commission or agency other than this Commission has
jurisdiction over the transactions proposed herein. Neither
the Louisiana Public Service Commission nor the Public
Utility Commission of Texas exercises jurisdiction over the
transactions for which approval is sought herein.
Item 5. Procedure
1. The Company requests that the Commission's notice of
proposed transactions published pursuant to Rule 23(e) be
issued by November 1, 1995, or as soon thereafter as
practicable. The Company further requests that the
Commission's order authorizing the issuance and sale of
Bonds, MTNs, Debentures, Entity Interests, Preferred and
Preference as well as over the proposed transactions related
to the financing of the Facilities by means of Tax-Exempt
Bonds, pursuant to competitive bidding procedures,
negotiated public offering or private placement, as
described in Item 1, be entered by December 31, 1995. The
Company consents that the Commission's order authorizing the
above transactions may reserve jurisdiction over (i) the
proposed issuance and sale of Debentures, Entity Interests,
and Preference pursuant to competitive bidding procedures,
negotiated public offering or private placement, pending
completion of the record by the filing of the respective
registration statements relating thereto; (ii) the proposed
transactions related to the financing or refinancing of the
Facilities by means of Tax-Exempt Bonds, through competitive
bidding procedures, negotiated public offering or private
placement, pending completion of the record by the filing of
the Facilities Agreement with respect thereto.
2. The Company hereby waives a recommended decision by a
hearing officer or any other responsible officer of the
Commission; agrees that the Staff of the Division of
Investment Management may assist in the preparation of the
Commission's decision; and requests that there be no waiting
periods between the issuance of the Commission's orders and
the dates on which they are to become effective.
Item 6. Exhibits and Financial Statements.
(a) Exhibits:
*A-1 Indenture of Mortgage, as amended by certain
Supplemental Indentures (filed as the exhibits
and in the file numbers indicated)
B-a-I-1 in Registration No. 2-2449 (Mortgage);
7-A-9 in Registration No. 2-6893 (Seventh); B
to Form 8-K dated September 1, 1959
(Eighteenth); B to Form 8-K dated February 1,
1966 (Twenty-second); B to Form 8-K dated
March 1, 1967 (Twenty-third); C to Form 8-K
dated March 1, 1968 (Twenty-fourth); B to Form
8-K dated November 1, 1968 (Twenty-fifth); B
to Form 8-K dated April 1, 1969 (Twenty-
sixth); 2-A-8 in Registration No. 2-66612
(Thirty-eighth); 4-2 to Form 10-K for the year
ended December 31, 1984 in 1-2703 (Fifty-
third); 4 to Form 8-K dated July 29, 1992 in 1-
2703 (Fifty-fourth); 4 to Form 10-K dated
December 31, 1992 in 1-2703 (Fifty-fifth); 4
to Form 10-Q for the quarter ended March 31,
1933 in 1-2703 (Fifty-sixth); and 4-2 to
Amendment No. 9 to Registration No. 2-76551
(Fifty-seventh)).
**A-2 Proposed form(s) of additional Supplemental
Indenture(s) relating to the First Mortgage
Bonds.
A-3 Proposed form(s) of Bond, Medium Term Note
Series.
*A-4 Restated Articles of Incorporation dated as of
May 28, 1993, as amended (filed as Exhibits A-
11 and A-11(a) in File No. 1-8059).
*A-5 By-laws, as presently in effect (filed as
Exhibit A-12 in File No. 70-8059).
**A-6 Trust Indenture, dated July 1, 1991, with
Bankers Trust Company, Trustee.
A-7 Proposed form(s) of Debenture Indenture.
A-8 Proposed form(s) of Debenture.
A-9 Proposed form(s) of Subordinated Debenture
Indenture.
A-10 Proposed form(s) of Subordinated Debenture.
A-11 Proposed form(s) of Entity Subordinated
Debenture Indenture.
A-12 Proposed form(s) of Entity Subordinated
Debenture.
**A-13 Proposed form(s) of Entity Agreement of the
Issuing Entity, including the proposed form(s)
of Entity Interests.
**A-14 Proposed form(s) of Guaranty (if applicable).
A-15 Proposed form(s) of Amendment to Restated
Articles of Incorporation, as amended,
establishing series of Preferred Stock.
A-16 Proposed form(s) of Amendment to the Restated
Articles of Incorporation, as amended,
establishing $series of Preference Stock.
**A-17 Proposed form(s) of Preferred Stock
Certificate relating to fixed dividend rate
stock.
**A-18 Proposed form(s) of Preferred Stock
Certificate relating to adjustable dividend
rate stock.
**A-19 Proposed form of documents relating to
Depository Preferred.
**A-20 Proposed form(s) of Preference Stock
Certificate, without par value.
**A-21 Proposed form(s) of additional Supplemental
Indenture for Collateral Bond.
A-22 Proposed form(s) of Collateral Bond.
B-1 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Bonds.
B-2 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Preference and/or Preferred.
B-3 Proposed form(s), if any, of the Facilities
Agreement (Refunding Agreement).
**B-4 Proposed form, if any, of the Reimbursement
Agreement.
B-5 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Debentures.
**B-6 Proposed form(s), if any, of insurance policy
and provisions relating to bond insurance.
**B-7 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Entity Interests.
**B-8 Proposed form(s) of agreement for sale(s) of
Entity Interests.
**B-9 Proposed form(s) of Agreement for the sale of
Bonds and/or Debentures.
**B-10 Proposed form(s) of Agreement for the sale of
Preference and/or Preferred.
B-11 Proposed Form of Tax-Exempt Bond indenture.
C-1 Registration Statement, No. 33-49739 relating
to Bonds (filed in Registration No. 33-49739).
C-2 Registration Statement No. 33-51121 relating
to Preferred and Preference Stock (filed in
Registration No. 33-51121).
**C-3 Proposed form of Registration Statement
relating to Debentures.
**C-4 Proposed form of Registration Statement
relating to Subordinated Debentures.
**C-5 Proposed form of Registration Statement
relating to the Entity Interests and the
Entity Subordinated Debentures.
D Inapplicable.
E Inapplicable.
**F-1 Opinion of Laurence M. Hamric, General
Attorney-Corporate and Securities of Entergy
Services, Inc.
**F-2 Opinion of Reid & Priest LLP.
**G Plan of Financing for the Company and
Financial Data Schedules.
H-l Suggested form of notice of proposed
transactions for publication in the Federal
Register.
I-1 Reconciliation of Indenture of Mortgage with
Statement of Policy Regarding First Mortgage
Bonds.
I-2 Comparison of Articles with Statement of
Policy Regarding Preferred Stock.
_________________________
* Incorporated herein by reference as indicated.
** To be filed by amendment.
** Section B. Financial Statements
Financial Statements of the Company as of June 30, 1995
(reference is made to Exhibit G hereto).
Financial Statements of Entergy Corporation and
subsidiaries, consolidated, as of June 30, 1995.
Notes to financial statements of the Company and
Entergy Corporation and subsidiaries included in the Annual
Report on Form 10-K for the fiscal year ended December 31,
1994 and the Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, and June 30, 1995 (filed
in File No. 1-2703 incorporated herein by reference).
Except as reflected in the Financial Statements, no
material changes not in the ordinary course of business have
taken place since June 30, 1995.
Reference is made to Exhibit G hereto for a statement
of (i) the approximate amounts, before and after giving
effect to the proposed transactions, of available net
property additions of the Company available for the issuance
of First Mortgage Bonds and (ii) the proposed accounting
treatment of the transactions herein contemplated.
** To be filed by amendment.
Item 7. Information as to Environmental Effects
(a) As more fully described in Item 1, the
proposed transactions subject to the jurisdiction of the
Commission relate only to the financing activities of the
Company and do not involve a major federal action having a
significant impact on the human environment.
(b) Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Application/Declaration to be signed on its behalf by the
undersigned thereunto duly authorized.
GULF STATES UTILITIES COMPANY
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
Dated: October 16, 1995
EXHIBIT A-3
[FORM OF FACE OF BOND OF MTN SERIES]
No. R-
$
Interest Rate Per Anum % Annual Regular Redemption
(See addendum attached hereto) ______ Percentage Reduction: %
Maturity Date: Initial Regular Redemption
Date:
Original Issue Date:
Optional Repayment Dates:
Interest Payment Dates: 1
and 1
Minimum Optional Repayment
Initial Interest Payment Date: 1 Amount: $
Authorized Denomination: $ Special Redemption Permitted at
Special Redemption Price:
Authorized Integrals: $
Initial Regular Redemption
Percentage: %
GULF STATES UTILITIES COMPANY
FIRST MORTGAGE BOND, MEDIUM TERM NOTE SERIES
SUBSERIES _______________
GULF STATES UTILITIES COMPANY, a Texas corporation
(hereinafter sometimes called the "Company"), for value received,
hereby promises to pay to , or
registered assigns, Dollars on the Maturity
Date, and to pay interest thereon from the Original Issue Date at
the Interest Rate Per Annum, semiannually on the Interest Payment
Dates commencing on the Initial Interest payment Date, until
payment of the principal hereof. The interest so payable on any
Interest Payment Date will be paid to the person in whose name
this bond is registered at the close of business on the tenth day
next preceding such Interest Payment Date, or, if such day is not
a business day, the business day next preceding such day, unless
the Company shall default in the payment of the interest due on
such Interest Payment Date, in which case such defaulted interest
shall be paid to the person in whode name this bond is registered
on the date of payment of such defaulted interest.
Both principal and interest on this bond will be paid in any
coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and
private debts, at the corporate trust office in the Borough of
Manhattan, City and State of New York, of the Trustee under the
Indenture
Payment of interest on any Interest Payment Date other than
the Maturity Date (or any Redemption Date or any Optional
Repayment Date, each as defined on the reverse side hereof) may
be made by check mailed to the addr s of the person entitled
there as such address shall appear in the bond register;
provided that a person holding $10,000,000 or more in aggregate
principal amount of bonds having the same Interest Payment Date
(whether having identical or different terms and provisions) will
be entitled to receive payments of interest by wire transfer of
immediately available funds if appropriate written wire transfer
instructions have been received by the Company and the Trustee
not less than thirty days prior to the applicable Interest
Payment Date.
This Bond shall not become valid or be valid or obligatory
for any purpose until the authentication certificate hereon shall
have been signed by the Trustee.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposs have
the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, Gulf States Utilities Company has caused
these presents to be executed in its corporate name, by facsimile
signature or manually, by its Chairman of the Board of Directors,
its President or one of its Vice Presidents and by its Treasurer
or an Assistant Treasurer under its corporate seal or a facsimile
thereof, all as of
GULF STATES UTILITIES COMPANY
By
Chairman of the Board of Directors
By
Treasurer
<PAGE>
(FORM OF REVERSE OF BOND OF THE MTN SERIES)
GULF STATES UTILITIES COMPANY
FIRST MORTGAGE BOND, MEDIUM TERM NOTE SERIES
SUB-SERIES
(Continued)
This bond is one of the bonds, of the above designated
series, of an authorized issue of bonds of the Company, known as
First Mortgage Bonds, issued or issuable in one or more series
under and equally secured (except in so far as any sinking and/or
improvement fund, maintenance and replacement fund or other fund
established in accordance with the provisions of the Indenture
hereinafter mentioned may afford additional security for the
bonds of any specific series or, if applicable, sub-series of
this series) by an Indenture of Mortgage dated September 1, 1926,
as supplemented and modified by indentures supplemental thereto,
to and including a [ ] Supplemental Indenture dated as
of [ ] to Chemlcal Bank as Trustee, to which Indenture of
Mortgage, as so supplemented and modified, and all indentures
supplemental thereto (herein sometimes called the Indenture)
reference is hereby made for a description of the property
mortgaged and pledged as security for said bonds, the nature and
exctent of the security, and the rights, duties and immunities
thereunder of the Trustee, the rights of the holders of said
bonds and of the Trustee and of the Company in respect of such
security, and the terms upon which said bonds may be issued
thereunder.
This bond will not be subject to any sinking fund.
This bond may be subject to repayment at the option of the
holder on the Optional Repayment Date(s), if any, indicated on
the face hereof. If no Optional Repayment Date(s) are set forth
on the face hereof, this bond may not be so repaid at the option
of the holder hereof prior to the Maturity Date. On any Optional
Repayment Date this bond shall be repayable in whole or in part
in increments of the Authorized Denomination (provided that the
amount to be repaid by the Company is equal to or greater than
the Minimum Optional Repayment Amount indicated on the face
hereof) at the option of the holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with
interest thereon payable to the date of repayment. For this bond
to be repaid in whole or in part at the option of the holder
hereof, this bond must be received, with the form entitled
"Option to Elect Repayment" below duly completed, by the Trustee
at the address specified in such form or such address which the
Company shall from time to time notify the holders of the bonds,
not more than 60 nor less than 20 days prior to an Optional
Repayment Date. Exercise of such repayment option by the holder
hereof shall be irrevocable.
This bond may be redeemed by the Company prior to the
Maturity Date on any date on or after the Initial Regular
Redemption Date, if any, indicated on the face hereof. If no
Initial Regular Redemption Date is set forth on the face hereof,
this bond may not be redeemed prior to the Maturity Date (except
as may be permitted as provided in the second succeeding
paragraph). On and after the Initial Regular Redemption Date, if
any, this bond may be redeemed at any time in whole or from time
to time in part in an Authorized Denomination or in Authorized
Integrals at the option of the Company at the applicable Regular
Redemption Price (as defined below) together with interest
thereon payable to the date of such redemption. Any date on
which Bonds are to be redeemed is herein called a "Redemption
Date".
The "Regular Redemption Price" shall initially be the
Initial Regular Redemption Percentage, shown on the face hereof,
of the principal amount of this bond to be redeemed and shall
decline at each anniversary of the Initial Regular Redemption
Date, shown on the face hereof, by the Annual Regular Redemption
Percentage Reduction, if any, shown on the face hereof, of the
principal amount to be redeemcd until the Regular Redcmption
Price is 100% of such principal amount.
If so indicated on the face hereof, this bond is subject to
redemption prior to maturity at any time or times as a whole or
in part by the application of certain moneys held under the
Indenture or in thc event of thc acquisition of not less than a
majority of the outstanding common stock of the Company by a
public body, agency, instrumentality or authority or nonprofit
cooperative corporation or any nominee thereof and the election
of the Company to redeem all of the bonds outstanding under the
Indenture on a date within 12 months after such acquisition, upon
payment of a "Special Redemption Price" equal to 100% of the
principal amount of the bond or portion thereof redeemed,
together in any case with interest accrued thereon to the
Redemption Date.
Any redemption of this bond provided for herein shall be
made upon prior notice (which may be made subject to the deposit
of the redemption moneys with the Trustee prior to the date
designated for redemption) given not less than thirty days nor
more than ninety days prior to the redemption date by first class
mail, postage prepaid, to each registered owner of bonds of this
series (or, if applicable, only the sub-series of which this bond
is a part) at his address as the same shall appear on the bond
register; all as more fully provided in the Indenture.
If this bond or any portion thereof (in an Authorized
Denomination or an Authorized Integral, each as set forth on the
face hereof) is duly called for redemption and payment duly
provided for as specified in the Indenture, this bond or such
portion thereof shall cease to be entitled to the lien of the
Indenture from and after the date payment is so provided for and
shall cease to bear interest from and after the Redemption Date.
In the event of the selection for redemption by the Company
or prepayment by the Company at the option (if any) of the holder
of a portion only of the principal of this bond, payment of the
redemption price or prepayment amount will be made only (a) upon
presentation of this bond for notation thereon of such payment of
the portion of the principal of this bond so called for
redemption, or (b) upon surrender of this bond in exchange for a
bond or bonds of authorized denominations of the same series (or,
if applicable, only of the sub-series of which this bond is a
part) for the unredeemed balance of the principal amount of this
bond.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than
seventy-five percent in principal amount of the bonds (exclusive
of the bonds disqualified by reason of the Company's interest
therein) at the time outstanding, including, if more than one
series of bonds shall be at the time outstanding, not less than
sixty percent in principal amount of each series affectcd, to
effect, by an indenture supplemental to the Indenture,
modifications or alterations of the Indenture and of the rights
and obligations of the Company and of the holders of the bonds;
provided, however, that no such modification or alteration shall
be made without the written approval or consent of the registered
owner hereof which will (a) extend the maturity of this bond or
reduce the rate or extend the time of payment of interest hereon
or reduce the amount of the principal hereof, or (b) permit the
creation of any lien, not otherwise permitted, prior to or on a
parity with the lien of the Indenture, or (c) reduce the
percentage of the principal amount of the bonds upon the approval
or consent of the holders of which modifications or alterations
may be made as aforesaid. The Fifty-seventh Supplemental
Indenture also provides that, without the consent of the
registered owner hereof, no supplemental indenture will (a)
change the date or amount of or deny an optional repayment right,
if any, (b) change the date for redemption or redemption price,
if any, or (c) permit redemption, other than as provided in each
case with respect to this bond upon original issuance.
The original holders of all the bonds of this series (and,
if applicable, sub-series of which this bond is a part) consented
to the execution and delivery by the Company and Chemical Bank,
Trustee, of a supplemental indenture to modify the Indenture,
with such consent having been evidenced by the acceptance of this
bond by the holder hereof upon original issuance, (i) to
eliminate the requirement for a maintenance and replacement fund
and all references and requirements relating thereto and (ii) to
eliminate all requirements with respect to and all references to
a minimum provision for depreciation. Such consent is binding
upon all subsequent holders of all bonds of this series, and, if
applicable, sub-series. Such modifications shall become
effective if and when requisite consents have been obtained from
holders of bonds of other series outstanding and a supplemental
indenture effecting such modifications has been duly authorized
and executed or on June 2, 2010, whichever occurs first.
The Company and the Trustee have entered into a [
] Supplemental Indenture dated [ ], pursuant to Section
18.01 of the Indenture without the consent of the holders of
outstanding Bonds modifying certain provisions of the Indenture
with respect to the issuance of Bonds of this series and with
respect to consent to modification of the Indenture by holders of
Bonds of this serics.
This bond is transferable by the registered owner hereof in
person or by his duly authorized attorney at the corporate trust
office in the Borough of Manhattan, City and State of New York,
of the Trustee upon surrender of this bond for cancellation and
upon payment, if the Company shall so require, of the charges
provided for in the Indenture, and thereupon a new registered
bond of the same series (and, if applicable, only of the same sub-
series of which this bond is a part) of like principal amount
will be issued to the transferee in exchange therefor.
The registered owner of this bond at his option may
surrender the same for cancellation at said office and receive in
exchange therefor the same aggregate principal amount of bonds of
the same series (and, if applicable, only of the same sub-series
of which this bond is a part) but of other authorized
denominations, upon payment, if the Company shall so require, of
the charges provided for in the Indenture and subject to the
terms and conditions therein set forth.
If a default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable
before maturity in the manner and with the effect provided in the
Indenture. The holders, however, of certain specified
percentages of the bonds at the time outstanding, including in
certain cases specified percentages of bonds of particular series
or sub-series, may in those cases, to the extent and under the
conditions provided in the Indenture. waive certain defaults
thereunder and the consequences of such defaults.
No recourse shall be had for the payment of thc principal of
or the interest on this bond, or for any claim based hereon, or
otherwise in respect hereof or of the Indenture, against any
incorporator, shareholder, director or officer, past, present or
future, as such, of the Company or of any predecessor or
successor corporation, either directly or through the Company or
such predecessor or successor corporation, under any constitution
or statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all such liability of
incorporators, shareholders, directors and offlcers, as such,
being waived and released by the holder and owner hereof by the
acceptance of this bond and as provided in the Indenture.
If no fixed Interest Rate Per Annum is stated on the face of
this bond and reference to an addendum is indicated, the Interest
Rate Per Annum shall be as stated in such addendum, and such
addendum shall be a part of and incorporated as part of the terms
and provisions of this bond for all purposes.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Company to repay this bond (or portion hereof
specified below) pursuant to its terms at a price equal to the
principal amount hereof together with interest to the repayment
date, to the undersigned, at
(Please print or typewrite name and
address of the undersigned).
For this bond to be repaid, the Trustee must receive at the
address indicated below, or at such other place of which the
Company shall from time to time notify the holder of this bond,
not more than 60 nor less than 20 days prior to an Optional
Repayment Date, if any, shown on the face of this bond, this bond
with this "Option to Elect Repayment" form duly completed.
Such place, subject to further notification, is as follows:
Chemical Bank
Corporate Tellers Window
Room 234 -North Building
55 Water Street
New York, New York 10041
Attention: Tender Department
The holder of this bond must also give notice to the Company
of the holder's exercise of the option to elect repayment at the
following address (subject to further notification) at the time
notice of the exercise is given to the Trustee:
Gulf States Utilities Company
% Entergy Services, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
The Trustee shall have no obligation to verify receipt of
such notice by the Company.
If less than the entire principal amount of this bond is to
be repaid, specify the portion hereof (which shall be in
increments of Authorized Integrals (but not less than the Minimum
Optional Repayment Amount) which the holder elects to have repaid
and specify the denomination or denominations (which must be in
Authorized Denominations or Authorized Integrals) of the bonds to
be issued to the holder for the portion of this bond not being
repaid (in the absence of any such specification, one such bond
will be issued for the portion not being repaid).
$ NOTICE: The signature on this Option
to Elect Repayment must correspond
Date with the name as written upon the face
of this bond in every particular,
without alteration or enlargement or
any change whatsoever.
Exhibit A-7
__________________________________________
GULF STATES UTILITIES COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ______________, 199
__________________________________________
<PAGE>
GULF STATES UTILITIES COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
INDENTURE, dated as of _________________, between GULF
STATES UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein called the
"Company"), having its principal office at 639 Loyola Avenue, New
Orleans, Louisiana 70113, and
_______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as contemplated herein; and all acts necessary
to make this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other govern
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at
____________________________________.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect
to such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other
obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding
under this Indenture, or (except for purposes of
actions to be taken by Holders generally under
Section 812 or 813) all Outstanding Securities
of each such series and each such Tranche, as
the case may be, determined without regard to
this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in
determining whether the Trustee shall be pro
tected 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 the
Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities
so owned which have been pledged in good faith
may be 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 any other obligor upon the Securities
or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Dis
count Security that shall be deemed to be
Outstanding for such purposes shall be the
amount of the principal thereof that would be
due and payable as of the date of such
determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802;
and
(z) the principal amount of any
Security which is denominated in a currency
other than Dollars or in a composite currency
that shall be deemed to be Outstanding for such
purposes shall be the amount of Dollars which
could have been purchased by the principal
amount (or, in the case of a Discount Security,
the Dollar equivalent on the date determined as
set forth below of the amount determined as
provided in (y) above) of such currency or
composite currency evidenced by such Security,
in each such case certified to the Trustee in an
Officer's Certificate, based (i) on the average
of the mean of the buying and selling spot rates
quoted by three banks which are members of the
New York Clearing House Association selected by
the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifth
Business Day preceding any such determination or
(ii) if on such fifth Business Day it shall not
be possible or practicable to obtain such
quotations from such three banks, on such other
quotations or alternative methods of deter
mination which shall be as consistent as
practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal of
and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities
of a series from time to time any or all of the specific
terms of which Securities, including without limitation
the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption pro
visions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance
of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, or unincorporated organization or any
Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to
bear simple interest. Any calculation or other
determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made
without regard to the effective interest cost to the
Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's
obligations are evidenced or secured in whole or in part
by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are
of the same series and (b) have identical terms except as
to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, as amended, or any successor
statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of America,
its Territories, its possessions- and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in
the case of any such application or request as to which
the furnishing of such documents is 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 shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to
the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, 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, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Gulf States Utilities Company
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be held to 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 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder and the
Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of ____________, except to the extent that the
law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in
lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and,
if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 406 or 1206 and,
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than
the Persons in whose names such Securities (or one
or more Predecessor Securities) are registered at
the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal
of the Securities of such series or any Tranche
thereof, is payable or any formulary or other method
or other means by which such date or dates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities
of such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at
which overdue principal shall bear interest, if
different from the rate or rates at which such
Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if
any), or any formulary or other method or other
means by which such rate or rates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise; the date or dates from which such
interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on
such Securities on any Interest Payment Date; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such series
or Tranche; and if such is the case, and if
acceptable to the Trustee, that the principal of
such Securities shall be payable without the
presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option
of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series, or any Tranche thereof, pursuant to any
sinking fund or other analogous mandatory redemption
provisions or at the option of a Holder thereof and
the period or periods within which or the date or
dates on which, the price or prices at which and the
terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series,
or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a
coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder
thereof, in securities or other property, the type
and amount of such securities or other property, or
the formulary or other method or other means by
which such amount shall be determined, and the
period or periods within which, and the terms and
conditions upon which, any such election may be
made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to
an index or other fact or event ascertainable
outside this Indenture, the manner in which such
amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six and
whether any such covenants may be waived pursuant to
Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company or
any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible Obligations
in respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any
additional or alternative provisions for the
reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of global form
and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause (g)
of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of transfer
or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental hereto
or the Board Resolution which establishes such series, or
the Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of
such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall
be determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which such
terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) that the terms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture; and
(iii) that such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such
Securities shall have been established pursuant
to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company
Order or Orders, all as contemplated by and in
accordance with the instrument or instruments
delivered pursuant to clause (a) above, such
terms will have been duly authorized by the
Company and will have been established in
conformity with the provisions of this
Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or specified procedures
referred to in paragraph (x) above and issued
and delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the Company,
entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to
laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the
date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent
by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall
never have been issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102
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 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and
other variations as the officers executing such
Securities may determine, as evidenced by their execution
of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, after the preparation of defini
tive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall,
except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series or any Tranche
thereof, a register (the register kept in accordance with
this Section being referred to as the "Security
Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series
or any Tranche thereof and the registration of transfer
thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each
series, and such Person is referred to herein, with
respect to such series, as the "Security Registrar."
Anything herein to the contrary notwithstanding, the
Company may designate one of its offices as the office in
which the register with respect to the Securities of one
or more series shall be maintained, and the Company may
designate itself the Security Registrar with respect to
one or more of such series. The Security Register shall
be open for inspection by the Trustee and the Company at
all reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or
more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series
and Tranche, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of
the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding
the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series
which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable
to the Holder on the related Regular Record Date by
virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name
and at the expense of the Company, shall promptly
cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or
any Tranche thereof, denominated in any currency other
than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to
such Securities as contemplated by Section 301, the obli
gation of the Company to make any payment of the
principal thereof, or the premium, if any, or interest,
if any, thereon, shall not be discharged or satisfied by
any tender by the Company, or recovery by the Trustee, in
any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in
the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such
tender or recovery is in a currency other than the
Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for
the Required Currency. The costs and risks of any such
exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the
Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required
Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor except in the case
of its negligence or willful misconduct.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series,
or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series or Tranche, or, in the absence of any
such provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and
which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms
of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series,
or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall
be applied to the redemption of Securities of the series
or Tranche in respect of which it was made as provided
for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and
(b) may apply as a credit Securities of such series or
Tranche which have been redeemed either at the election
of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that
no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall
have been previously so applied. Securities so applied
shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such
Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, or
any Tranche thereof, the Company shall deliver to the
Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
or Tranche pursuant to Section 502 and stating the
basis for such credit and that such Securities have
not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver
such Officer's Certificate, the next succeeding
mandatory sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of
the redemption thereof to be given in the name of
and at the expense of the Company in the manner
provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in
Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the Securities
of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such
Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected
and where notices and demands to or upon the Company in
respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice
to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and
of any change in the location of any such other office or
agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so
to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest, if any, has become due and payable shall be
paid to the Company on Company Request, or, if then held
by the Company, shall be discharged from such trust; and,
upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not
as a Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to
the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in any covenant or restriction specified with respect to
the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 as being subject to waiver
pursuant to this Section 607, if before the time for such
compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities
of all series and Tranches with respect to which
compliance with such covenant or restriction is to be
omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if
before the time for such compliance the Holders of at
least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver
shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect
of any such term, provision or condition shall remain in
full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions
thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall
have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Eligible Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703;
(y) if Eligible Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Eligible Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Eligible Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series, or any Tranche thereof,
is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities
of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the sixty (60) day
period commencing with the date of the deposit of moneys
or Eligible Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the
principal or interest received in respect of such
Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes,
to have been created as a result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or
interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in re
spect of which such deposit was made, all subject, how
ever, to the provisions of Section 603; provided, how
ever, that, so long as there shall not have occurred and
be continuing an Event of Default any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall,
to the extent practicable, be invested upon Company
Request and upon receipt of the documents referred to in
clause (y) of the first paragraph of Section 701, in
Eligible Obligations of the type described in clause (b)
in the first paragraph of Section 701 maturing at such
times and in such amounts as shall be sufficient,
together with any other moneys and the principal of and
interest on any other Eligible Obligations then held by
the Trustee, to pay when due the principal of and
premium, if any, and interest, if any, due and to become
due on such Securities or portions thereof on and prior
to the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default,
any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to the Securities of any series, means any one of
the following events which shall have occurred and be
continuing:
(a) failure to pay interest, if any, on any
Security of such series within sixty (60) days after
the same becomes due and payable; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series when
due and payable; or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
of any substantial part of its property, or the
making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series as contemplated
by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred and
be continuing with respect to Securities of any series at
the time Outstanding, then in every such case the Trustee
or the Holders of not less than 33% in principal amount
of the Outstanding Securities of such series may declare
the principal amount (or, if any of the Securities of
such series are Discount Securities, such portion of the
principal amount of such Securities as may be specified
in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and
payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and
upon such declaration such principal amount (or specified
amount) shall become immediately due and payable;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Trustee or the Holders of not
less than 33% in aggregate principal amount of the
Outstanding Securities of all such series, considered as
one class, may make such declaration of acceleration, and
not the Holders of the Securities of any one of such
series.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest, if any, on
all Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities; and
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then due
and unpaid upon the Securities for principal of and
premium, if any, and interest, if any, in respect of
which or for the benefit of which such money has
been collected, ratably, without preference or
priority of any kind, according to the amounts due
and payable on such Securities for principal,
premium, if any, and interest, if any, respectively;
and
Third: To the payment of any surplus then
remaining to the Company, or to whomever may be
lawfully entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808.Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307) interest, if any, on such Secu
rity on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforce
ment of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture, and
could not involve the Trustee in personal liability
in circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event
of Default with respect to Securities of any series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee and hold it harmless
from and against, any loss, liability or expense
reasonably incurred by it arising out of or in
connection with the acceptance or administration of
the trust or trusts hereunder or the performance of
its duties hereunder, including the reasonable costs
and expenses of defending itself against any claim
or liability in connection with the exercise or
performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the
goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon
demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting
the legal requirements of any applicable jurisdiction, the
Company and the Trustee shall have power to appoint, and,
upon the written request of the Trustee or of the Holders
of at least thirty-three per centum (33%) in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company does
not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee
alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or separate
trustee so appointed to more fully confirm to such co-
trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held by,
or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and
such co-trustee or separate trustee jointly, as shall
be provided in the instrument appointing such co-
trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request
of the Trustee, the Company shall join with the
Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or
omission of the Trustee, or any other such trustee
hereunder; and
(e) any Act of Holders delivered to the Trustee
shall be deemed to have been delivered to each such
co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized
to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and
doing business under the laws of the United States, any
State or Territory thereof or the District of Columbia or
the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority,
then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series, or any Tranche thereof, shall be
made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, and
at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file
with the Trustee (within thirty (30) days after filing
with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to
the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and existing under the laws of the United
States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series or Tranche of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities, or any
Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or
any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class,
shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest
on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the
amount of any installment of interest thereon) or
change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or
currency (or other property), in which any Security
or any premium or the interest thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series or any
Tranche thereof, the consent of the Holders of which
is required for any such supplemental indenture, or
the consent of the Holders of which is required for
any waiver of compliance with any provision of this
Indenture or of any default hereunder and its conse
quences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Security
of such series or Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof
(or except to increase the percentages in principal
amount referred to in this Section or such other
Sections or to provide that other provisions of this
Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security af
fected thereby; provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b)
and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance 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 be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche
thereof, authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall
so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other
place. Notice of every such meeting, setting forth
the time and the place of such meeting and in general
terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and
Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series and Tranches in the amount above
specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be
determined or approved by the Company, for such
meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches
thereof, shall be valid without notice if the Holders
of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series and Tranches with respect to which a meeting
shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be
taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In
the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the ad
journment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by
the chairman of the meeting prior to the adjournment of
such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided
in Section 1302(a) not less than ten days prior to the
date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution 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 and Tranches with
respect to which such meeting shall have been called, con
sidered as one class; provided, however, that, except as
so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305.Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of
this 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 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1000 principal
amount of Securities held or represented by him;
provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders shall
be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GULF STATES UTILITIES COMPANY
By:_____________________________
[SEAL]
ATTEST:
__________________________
______________________________,
Trustee
By:_____________________________
[SEAL]
ATTEST:
__________________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me
personally came _________________, to me known, who, being by
me duly sworn, did depose and say that he is the
_________________________ of Gulf States Utilities Company,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, before me
personally came _________________, to me known, who, being by
me duly sworn, did depose and say that he is a
_________________ of ______________________________, one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by
like authority.
________________________________
Notary Public
[Notarial Seal]
Exhibit A-8
No._______________
Cusip No.__________
[FORM OF FACE OF DEBENTURE]
GULF STATES UTILITIES COMPANY
[Designation of the Security will be inserted here]
GULF STATES UTILITIES COMPANY, a corporation duly organized
and existing under the laws of the State of Texas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ____________________________________, or registered
assigns, the principal sum of ____________________ Dollars on
__________,____, and to pay interest on said principal sum from
_________,____ or [from] the most recent Interest Payment Date
[to] which interest has been paid or duly provided for, [in equal
installments, in arrears, on ______________ and _____________ of
each year], commencing __________, 199 at the rate of __% per
annum until the principal hereof is paid or made available for
payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve
30-day months [and for any period shorter than a full calendar
month, on the basis of the actual number of days elapsed in such
period]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the __________________ Business Day next preceding
such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
GULF STATES UTILITIES COMPANY
By:____________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_____________________, as Trustee
By:____________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of _______, 199 , as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _____________________,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 1995 creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit A-9
__________________________________________
GULF STATES UTILITIES COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of ______________, 1996
__________________________________________
<PAGE>
GULF STATES UTILITIES COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 199__
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of _________________, between GULF
STATES UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein called the
"Company"), having its principal office at 639 Loyola Avenue, New
Orleans, Louisiana 70113, and
_______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as contemplated herein; and all acts
necessary to make this Indenture a valid agreement of the Company
have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
_____________________________________________________.
"Corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the princi
pal of and interest on which are unconditionally guaranteed
by, the United States entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other in
struments which evidence a direct ownership interest in obli
gations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed
and delivered and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption
or otherwise.
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, or other counsel acceptable to
the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Com
pany or of such other obligor (unless the Company, such
Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or (except for
purposes of actions to be taken by Holders generally
under Section 812 or 813) all Outstanding Securities of
each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) shall
be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be pro
tected in relying upon any such request, demand, authori
zation, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall
be so disregarded; provided, however, that Securities so
owned which have been pledged in good faith may be re
garded as Outstanding if 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 any other obligor upon the Securi
ties or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would
be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be
Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the principal
amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth
below of the amount determined as provided in (y) above)
of such currency or composite currency evidenced by such
Security, in each such case certified to the Trustee in
an Officer's Certificate, based (i) on the average of
the mean of the buying and selling spot rates quoted by
three banks which are members of the New York Clearing
House Association selected by the Company in effect at
11:00 A.M. (New York time) in The City of New York on
the fifth Business Day preceding any such determination
or (ii) if on such fifth Business Day it shall not be
possible or practicable to obtain such quotations from
such three banks, on such other quotations or
alternative methods of determination which shall be as
consistent as practicable with the method set forth in
(i) above;
provided, further, that, in the case of any Security the principal
of which is payable from time to time without presentment or
surrender, the principal amount of such Security that shall be
deemed to be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if
any, or interest, if any, on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company or unincorporated
organization or any Governmental Authority thereof.
"Place of Payment", when used with respect to the Securi
ties of any series, or Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Secur
ity to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section
311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other than
non-recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Securities), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and
its subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest Rate
on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in part
by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, as amended, or any successor statute, as in
effect at such time.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and there
after "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing
of such documents is 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 shall
include:
(a) a statement that each Person signing such cer
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided
by this Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, no
tice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may,
and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new Secu
rities of any series, or any Tranche thereof, so modified as
to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only
the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of (i)
determining whether Holders of the requisite proportion of
the Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may revoke any
such Act (notwithstanding Section 104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document pro
vided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other
electronic communications address as the parties hereto shall
from time to time designate, or transmitted by registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Gulf States Utilities Company
% Entergy Services, Inc.
Entergy Corporation Building
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be held to 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 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders, and so long as the
notice described in Section 1513 hereof has not been given, the
holders of Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of
____________, except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on
such Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series desig
nated therein referred to in the within-mentioned Indenture.
as Trustee
By:
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable
or any formulary or other method or other means by which
such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside this
Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside this Indenture or
otherwise; the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for
the interest payable on such Securities on any Interest
Payment Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any such
extension as contemplated by Section 312; and the basis of
computation of interest, if other than as provided in
Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and Paying Agent or Agents
for such series or Tranche; and if such is the case, and if
acceptable to the Trustee, that the principal of such
Securities shall be payable without the presentment or
surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at
which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premi
um, if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or in
terest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any Tranche
thereof, are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in securities
or other property, the type and amount of such securities or
other property, or the formulary or other method or other
means by which such amount shall be determined, and the
period or periods within which, and the terms and conditions
upon which, any such election may be made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six and whether any such covenants may be waived
pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of global
form and (iii) any and all other matters incidental to such
Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
The Securities of each series, or any Tranche thereof,
shall be subordinated in the right of payment to Senior
Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal
of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a Peri
odic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such Securities
have been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) that the terms of such Securities have been
duly authorized by the Company and have been estab
lished in conformity with the provisions of this Inden
ture; and
(iii) that such Securities, when authenticated
and delivered by the Trustee and issued and delivered
by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders
or pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this Inden
ture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and
to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or
expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication sub
stantially in the form provided for herein executed by the
Trustee or its agent by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 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 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute and
the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to the
Securities of each series or any Tranche thereof, a register (the
register kept in accordance with this Section being referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series or any Tranche
thereof and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series, and such Person is referred to
herein, with respect to such series, as the "Security Registrar."
Anything herein to the contrary notwithstanding, the Company may
designate one of its offices as the office in which the register
with respect to the Securities of one or more series shall be
maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee and
the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized denomina
tions and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other govern
mental charge that may be imposed in connection with any registra
tion of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trus
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of
any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the pro
posed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such De
faulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and premium, if any,
and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium, if
any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long
as the Company is not in default in the payment of interest on
the Securities of any series hereunder, to extend interest
payment periods on all Securities of one or more series, or
Tranches thereof, if so specified as contemplated by Section 301
with respect to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect to such
Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously
called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security
Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Security
Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner pro
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment; provided, however, that no Securities shall be applied
in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such mandatory sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding mandatory sinking
fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
404. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any failure
referred to in the preceding paragraph (b) default, upon the
written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such
sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest, if any, has become
due and payable shall be paid to the Company on Company Request,
or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to the
Trustee an Officer's Certificate which need not comply with
Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer
of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section
301 as being subject to waiver pursuant to this Section 607, if
before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by
the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the Com
pany, to the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z), if required, shall not have been
delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture,
and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request, the
Trustee shall acknowledge in writing that such Securities or
portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the sixty
(60) day period commencing with the date of the deposit of moneys
or Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article shall
survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article shall
survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposit
ed pursuant to Section 701, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and inter
est, if any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however,
that, so long as there shall not have occurred and be continuing
an Event of Default any cash received from such principal or
interest payments on such Eligible Obligations, if not then
needed for such purpose, shall, to the extent practicable, be
invested upon Company Request and upon receipt of the documents
referred to in clause (y) of the first paragraph of Section 701,
in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 701 maturing at such times and in
such amounts as shall be sufficient, together with any other
moneys and the principal of any interest on any other Eligible
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior
to the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over
to the Company free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect
to the Securities of any series, means any one of the following
events which shall have occurred and be continuing:
(a) failure to pay interest, if any, on any Security
of such series within sixty (60) days after the same becomes
due and payable (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); provided, however,
that a valid extension of the interest payment period by the
Company as contemplated in Section 312 of this Indenture
shall not constitute a failure to pay interest for this
purpose; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series when due and payable
(whether or not payment is prohibited by the provisions of
Article Fifteen hereof); or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series as contemplated by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders
of not less than 33% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or,
if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and payable imme
diately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon such declaration such
principal amount (or specified amount) shall become immediately
due and payable (provided that the payment of principal of such
Securities shall remain subordinated to the extent provided in
Article Fifteen hereof); provided, however, that if an Event of
Default shall have occurred and be continuing with respect to
more than one series of Securities, the Trustee or the Holders of
not less than 33% in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest, if any, on all
Securities of such series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities; and
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in
terest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensa
tion, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or premium, if any, or interest, if any, upon pre
sentation of the Securities in respect of which or for the
benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 907;
Second: To the payment of the amounts then due and un
paid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: To the payment of any surplus then remaining to
the Company, or to whomever may be lawfully entitled
thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceed
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307 and 312)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part,
the Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as
provided herein, relating to the time, method and place
of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 75 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee
by the Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities (ex
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any moneys received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts here
under or the performance of its duties hereunder, including
the reasonable costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory thereof
or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article and
the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written re
quest therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a re
ceiver of the Trustee or of its property shall be ap
pointed or any public officer shall take charge or con
trol of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquida
tion,
then, in any such case, (x) the Company by a Board Resolution
may remove the Trustee with respect to all Securities or
(y) subject to Section 814, any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 911,
become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any Holder
who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the Trustee
shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this Section
and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent
with this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security Register.
Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address
of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all
sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but
not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts here
under administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee, upon
payment of all sums owed to it, shall duly assign, transfer
and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in and
confirm to such successor Trustee all such rights, powers and
trusts referred to in subsection (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) he term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least
thirty-three per centum (33%) in principal amount of the
Securities then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to appoint, one or
more Persons approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee, in
either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons, in the
capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. If the Company does not joint in such appointment
within 15 days after the receipt by it of a request so to do, or
if an Event of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration of transfer
or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States, any State or Territory thereof or
the District of Columbia or the Commonwealth of Puerto Rico,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be ap
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
As Trustee
By
As Authenticating
Agent
By
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have an
office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have
Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and ___________ in
each year, commencing _______________, and at such other times as
the Trustee may request in writing, the Company shall furnish or
cause to be furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall preserve such
information and similar information received by it in any other
capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as
shall be required by the Trust Indenture Act; provided, however,
that no such list need be furnished so long as the Trustee shall
be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year, commencing
_______________, the Trustee shall transmit to the Holders and the
Commission a report, dated as of the next preceding
_______________, with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders and the Commission, and the
Company shall file with the Trustee (within thirty (30) days after
filing with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other
information, reports and other documents, if any, at such times
and in such manner, as shall be required by the Trust Indenture
Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other corporation, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall
be a Person organized and existing under the laws of the
United States, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form sat
isfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on
all Outstanding Securities and the performance of every cove
nant of this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such transaction
and treating any indebtedness for borrowed money which
becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the
time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other
transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein pro
vided for relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor corporation formed by such consolidation or into which
the Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all as
provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or more
specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this Inden
ture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities
of any series or Tranche Outstanding on the date of such
indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with
respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities;
or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation of the vote
or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with
respect to the Securities of one or more series and to add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or any
Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche
thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any
series of Securities, or any Tranche thereof, and this
Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or to make any other changes to
the provisions hereof or to add other provisions with respect
to matters or questions arising under this Indenture,
provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof
or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture
shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee
may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a major
ity in aggregate principal amount of the Securities of all series
then Outstanding under this Indenture, considered as one class, by
Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of
one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in
more than one Tranche and if the proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of
one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on (except as
provided in Section 312 hereof), any Security, or reduce the
principal amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or change
the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or reduce the amount of
the principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or,
in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent
of the Holders of each Outstanding Security of such series or
Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof (or except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of such series or
Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of such
Holder's right to consent under this Section shall be deemed to be
a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 901)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance there
with, and such supplemental indenture shall form a part of this In
denture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and, upon
the execution and delivery thereof, any such restatement shall
supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be made, given or taken by Holders of Securities of such series
or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or
by the Holders of 33% in aggregate principal amount of all of
such series and Tranches, considered as one class, for any
purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have given the notice
of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of
Securities of such series and Tranches in the amount above
specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or
in such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are present
in person or by proxy and if representatives of the Company
and the Trustee are present, or if notice is waived in
writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series or Tranche shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its
counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken
by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons
entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered
as one class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of
Securities of such series and Tranches, be dissolved. In any
other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior
to the adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in
Section 1302(a) not less than ten days prior to the date on which
the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall
constitute a quorum.
Except as limited by Section 1202, any resolution pre
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
and Tranches with respect to which such meeting shall have been
held, whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may
be in person or by proxy; and, to the extent permitted by
law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities and of
the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except
as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other
proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further
notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holders or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding
Securities, of the series and Tranches with respect to which the
meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at
the meeting. A record of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of
any predecessor or successor 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,
and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any predecessor or
successor corporation, either directly or indirectly through the
Company or any predecessor or successor corporation, because of
the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom or
therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated, to the extent and in the manner set forth
in this Article, in right of payment to the prior payment in full
of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Company or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other
than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holder or holders thereof
to accelerate the maturity thereof (with notice or lapse of time,
or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall not
have been cured or waived or shall not have ceased to exist, or
(c) that the principal of and accrued interest on the Securities
of any series shall have been declared due and payable pursuant to
Section 801 and such declaration shall not have been rescinded and
annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of
the Securities are entitled to receive a payment on
account of the principal of or interest on the
indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving effect
to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the
Holders of the indebtedness evidenced by the Securities
or to the Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for
such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on
the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the
holders of such Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders
of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Eligible
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article; provided that no
event described in clauses (d) and (e) of Section 801 with respect
to the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan or
reorganization or readjustment which are subordinate in right of
payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of
its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in
Article Eleven hereof shall not be deemed a dissolution, winding-
up, liquidation or reorganization for the purposes of this Section
1502 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eleven hereof. Nothing in Section
1501 or in this Section 1502 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness,
other than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any other obligation as to which the provisions of
this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default under clause (b) of Section 1502 if
(i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final
judgment relating to such dispute shall have been issued against
the Company which is in full force and effect and is not subject
to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may seek
further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall have been
obtained pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash
(or securities or other property satisfactory to such holders) in
full payment of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive any further payments or
distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full; and such
payments or distributions of cash, property or securities received
by the Holders of the Securities, by reason of such subrogation,
which otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the
Holders, be deemed to be a payment by the Company to or on account
of Senior Indebtedness, it being understood that the provisions of
this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders the principal
of and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and
creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities
of the Company referred to in this Article, the Trustee and the
Holders shall be entitled to rely upon any order or decree of a
court of competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceedings are pending for the
purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon, and
all other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all
matured principal of Senior Indebtedness and interest and premium,
if any, thereon shall first be paid in full before any payment of
principal or premium or interest, if any, is made upon the
Securities or before any Securities can be acquired by the Company
or any sinking fund payment is made with respect to the Securities
(except that required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in
this Article with respect to any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive the Trustee of
any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to or by the Trustee unless
and until the Trustee shall have received written notice thereof
from the Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives of such
holder and, prior to the receipt of any such written notice, the
Trustee shall be entitled, subject to Section 901, in all respects
to assume that no such facts exist; provided, however, that, if
prior to the fifth Business Day preceding the date upon which by
the terms hereof any such moneys may become payable for any
purpose, or in the event of the execution of an instrument
pursuant to Section 702 acknowledging satisfaction and discharge
of this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in
this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary,
which may be received by it on or after such date; provided,
however, that no such application shall affect the obligations
under this Article of the persons receiving such moneys from the
Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment of the
principal of and premium, if any, and interest, if any, on the
Securities, at any time or from time to time and in their absolute
discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or
renew or alter, any Senior Indebtedness, or amend or supplement
any instrument pursuant to which any Senior Indebtedness is
issued, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without notice
to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and objectives as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly pay
over or deliver to the Holders or the Company or any other Person,
money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place
of the Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article shall be of no further
effect, and the Securities shall no longer be subordinated in
right of payment to the prior payment of Senior Indebtedness, if
the Company shall have delivered to the Trustee a notice to such
effect. Any such notice delivered by the Company shall not be
deemed to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
GULF STATES UTILITIES COMPANY
By:
[SEAL]
ATTEST:
_______________________
, Trustee
By:
[SEAL]
ATTEST:
_______________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is the
_________________________ of Gulf States Utilities Company, one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________ [Notarial Seal]
Notary Public
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is a _________________ of
______________________________, one of the corporations described
in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
________________________________ [Notarial Seal]
Notary Public
Exhibit A-10
No._______________
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE]
GULF STATES UTILITIES COMPANY
[Designation of the Security will be inserted here]
GULF STATES UTILITIES COMPANY, a corporation duly
organized and existing under the laws of the State of Texasa
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ____________________________________, or
registered assigns, the principal sum of ____________________
Dollars on __________,____, and to pay interest on said principal
sum from _________,____ or [from] the most recent Interest
Payment Date [to] which interest has been paid or duly provided
for, [in equal installments, in arrears, on ______________ and
_______________ of each year], commencing __________, 199__ at
the rate of __% per annum until the principal hereof is paid or
made available for payment. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-
day year of twelve 30-day months [and for any period shorter than
a full calendar month, on the basis of the actual number of days
elapsed in such period]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the __________________ Business
Day next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
GULF STATES UTILITIES COMPANY
By:_______________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_______________________________,
as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of _______, 199__, as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _____________________,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 199__ creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[The Company shall have the right at any time during
the term of the Securities of this series, from time to time to
extend the interest payment period of such Securities to up to __
consecutive _______ (the "Extended Interest Payment Period"), and
at the end of such Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Securities of this
series to the extent that payment of such interest is enforceable
under applicable law); provided, however, that during such
Extended Interest Payment Period the Company shall not declare or
pay any divided on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing. Prior
to the termination of any such Extended Interest Payment Period,
the Company may further extend the interest payment period,
provided that such Extended Interest Payment Period, together
with all such previous and further extensions thereof, may not
exceed __ consecutive _________ or extend beyond the Stated
Maturity of the Securities of this series. Upon the termination
of any such Extended Interest Payment Period and the payment of
all accrued and unpaid interest then due, the Company may select
a new Extended Interest Payment Period, subject to the above
requirements. No interest during the Extended Interest Payment
Period, except at the end thereof, shall be due and payable. The
Company shall give the Holder of this Security notice of its
selection of such Extended Interest Payment Period as provided in
the Indenture.]*
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
_______________________________
* These provisions may change.
Exhibit A-11
__________________________________________
GULF STATES UTILITIES COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities and
relating to Preferred Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
GULF STATES UTILITIES COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of _________________, between GULF
STATES UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein called the
"Company"), having its principal office at 50 Pine Street,
Beaumont, Texas 77701, and
_______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as contemplated herein; and all acts
necessary to make this Indenture a valid agreement of the Company
have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other govern
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de
fined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Additional Interest" has the meaning specified in
Section 312.
"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 through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at
_____________________________________________________.
"Corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Guarantee" means the Payment and Guarantee Agreement
dated as of _______________, 1995, delivered by the
Company for the benefit of the holders of Preferred
Securities.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this
Indenture, or (except for purposes of actions to be taken
by Holders generally under Section 812 or 813) all
Outstanding Securities of each such series, as the case
may be, determined without regard to this provision)
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 the Trustee knows to be so
owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith
may be 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 any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor; and provided, further, that, in the case
of any Security the principal of which is payable from
time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to
be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount thereof
less the aggregate amount of principal thereof
theretofore paid.
"Partnership" means ________________, a
__________________ limited partnership, or any permitted
successor under the Partnership Agreement.
"Partnership Agreement" means the
_____________________, dated as of ________________, 1995,
as it may be amended from time to time.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company or unincorporated organization or any Governmental
Authority.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series are
payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Securities" means any limited partnership
interests issued by the Partnership or similar securities
issued by a permitted successor to the Partnership in
accordance with the Partnership Agreement.
"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.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company; provided that the
Company's obligations under the Guaranty shall not be
deemed to be Senior Indebtedness.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"Special Representative" means any special
representative duly appointed by the holders of Preferred
Securities of any series in accordance with the
Partnership Agreement or Action or Actions of the General
Partner establishing such series to act on their behalf or
on behalf of the Partnership to enforce the obligations of
the Company hereunder.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, as amended, or any successor
statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in
the case of any such application or request as to which
the furnishing of such documents is 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 shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or by a Special Representative or, alternatively,
may be embodied in and evidenced by the record of
Holders or Special Representatives, as the case may
be, voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of
such instruments and any such record. Except as
herein otherwise expressly provided, such action
shall become effective when such instrument or
instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and
any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series 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.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, 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, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Gulf States Utilities Company
% Entergy Services, Inc.
Entergy Corporation Building
639 Loyola Avenue
New Orleans, LA 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest
date, if any, prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company and Trustee shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be held to 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 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders and, so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided,
however, that for so long as any Preferred Securities
remain outstanding, the holders of such Preferred
Securities, or the Special Representative acting on
behalf of such holders, subject to certain limitations
set forth in this Indenture, may enforce the Company's
obligations hereunder directly against the Company as
third party beneficiaries of this Indenture without first
proceeding against the Partnership.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of ____________, except to the extent that the
law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or in the Board Resolution or Officer's
Certificate which establishes the terms of the Securities
of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of
Payment, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business
Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
_________________________________
as Trustee
By: ___________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited; provided, however, that all
Securities shall be issued to evidence loans by the
Partnership of the proceeds of the issuance of Preferred
Securities of the Partnership plus the amount of capital
contributions made by the Company to the Partnership from
time to time.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 406 or 1206 and,
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series shall be payable on any Interest Payment
Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by reference
to an index or other fact or event ascertainable
outside this Indenture or otherwise (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities
of such series shall bear interest, if any
(including the rate or rates at which overdue
principal shall bear interest, if different from the
rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the
rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or
other method or other means by which such rate or
rates shall be determined, by reference to an index
or other fact or event ascertainable outside this
Indenture or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend
the interest payment periods and the duration of any
such extension as contemplated by Section 311; and
the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series shall
be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without the presentment
or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series may be redeemed, in whole
or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by
the Company of the Securities of any series,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series pursuant to any sinking fund or other
analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the
price or prices at which and the terms and
conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant
to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the
Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series
are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be
payable, the period or periods within which and the
terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series are to be
payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other
property, the type and amount of such securities or
other property, or the formulary or other method or
other means by which such amount shall be
determined, and the period or periods within which,
and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series may be
determined with reference to an index or other fact
or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of
this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, in addition to those set
forth in Article Six and whether any such covenants
may be waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or
exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Government
Obligations in respect of the Securities of such
series denominated in a currency other than Dollars
or in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series are to be
issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Securities
to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in
definitive form in lieu of global form and (iii) any
and all other matters incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically
addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if
a service charge will be made for the registration
of transfer or exchange of Securities of such series
the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series; and
(v) any other terms of the Securities of such
series not inconsistent with the provisions of this
Indenture.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in right
of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, the
Securities shall be executed on behalf of the Company by
an Authorized Officer and may have the corporate seal of
the Company affixed thereto or reproduced thereon
attested by any other Authorized Officer or by the
Secretary of the Company. The signature of any or all of
these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or the Secretary 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.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, no
Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or its agent by manual
signature of an authorized officer thereof, and such
certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall
never have been issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102
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 304. 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 which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
after the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series upon surrender of
such temporary Securities at the office or agency of the
Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of
temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series and the registration of transfer thereof.
The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and
such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to
the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register
with respect to the Securities of one or more series
shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of
such series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a Place
of Payment for such series, 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.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new 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 such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series during a period
of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of
such series called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same
series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and (subject
to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, if so specified as contemplated by
Section 301 with respect to such Securities and upon such
terms as may be specified as contemplated by Section 301
with respect to such Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain
outstanding, if the Partnership shall be required to pay,
with respect to its income derived from the interest
payments on the Securities of any series, any amounts for
or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the
United States, or any other taxing authority, then, in
any such case, the Company will pay as interest on such
series such additional interest ("Additional Interest")
as may be necessary in order that the net amounts
received and retained by the Partnership after the
payment of such taxes, duties, assessments or
governmental charges shall result in the Partnership's
having such funds as it would have had in the absence of
the payment of such taxes, duties, assessments or
governmental charges.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from
the Outstanding Securities of such series not previously
called for redemption, by such method as shall be
provided for any particular series, or, in the absence of
any such provision, by such method as the Security
Registrar shall deem fair and appropriate and which may
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;
provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase
all or any principal amount of the Securities then
Outstanding of any series, and less than all of such
Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed and the portion
of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor
and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption
of Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series which have
been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities or Outstanding
Securities purchased by the Company, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund
payment if such Securities shall have been previously so
applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding mandatory
sinking fund payment for such series shall be made
entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 30 days before
each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in
Section 403 and cause notice of the redemption
thereof to be given in the name of and at the
expense of the Company in the manner provided in
Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series in
accordance with the terms of such Securities and this
Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and demands
to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the
Company shall fail to maintain any such required office
or agency in respect of Securities of any series, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for any
or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series, no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation
or rescission and of any change in the location of any
such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure
by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any,
or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it shall,
on or before each due date of the principal of and
premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sums to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest, if any, has become due and payable shall be
paid to the Company on Company Request, or, if then held
by the Company, shall be discharged from such trust; and,
upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not
as a Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to
the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in any covenant or restriction specified with respect to
the Securities of any series, as contemplated by Section
301 as being subject to waiver pursuant to this Section
607, if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of
the Outstanding Securities of all series with respect to
which compliance with or such covenant or restriction is
to be omitted, considered as one class, shall, by Act of
such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the
Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act
of such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition; but, in the case of (a) or (b),
no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect;
provided, however, so long as the Partnership holds
Securities of any series, the Partnership may not waive
compliance or waive any default in compliance by the
Company with any covenant or other term contained in this
Indenture or the Securities of such series without the
approval of the holders of at least 66_% in aggregate
liquidation preference of the outstanding Preferred
Securities affected, obtained as provided in the
Partnership Agreement.
SECTION 608. Restriction on Payment of Dividends.
So long as any Preferred Securities of any
series remain outstanding, the Company shall not declare
or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the
Company's capital stock, or make any guarantee payments
with respect to the foregoing (other than payments under
the Guarantee) if at such time (a) the Company shall be
in default with respect to its payment or other
obligations under the Guarantee, (b) there shall have
occurred and be continuing a payment default (whether
before or after expiration of any period of grace) or an
Event of Default hereunder or (c) the Company shall have
elected to extend any interest payment period as provided
in Section 311, and any such period, or any extension
thereof, shall be continuing.
SECTION 609. Maintenance of Partnership Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall (i) maintain direct
or indirect ownership of all interests in the Partnership
other than such Preferred Securities, (ii) not
voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up the Partnership, (iii) remain the
sole General Partner of the Partnership and timely
perform in all material respects all of its duties as
General Partner of the Partnership (including the duty to
pay dividends on the Preferred Securities), and (iv) use
reasonable efforts to cause the Partnership to remain a
limited partnership and otherwise continue to be treated
as a partnership for Federal income tax purposes provided
that any permitted successor to the Company under this
Indenture may succeed to the Company's duties as General
Partner of the Partnership; and provided further that the
Company may permit the Partnership to consolidate or
merge with or into another limited partnership or other
permitted successor under the Partnership Agreement so
long as the Company agrees to comply with this Section
609 with respect to such successor limited partnership or
other permitted successor.
SECTION 610. Rights of Holders of Preferred Securities.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its obligations
under this Indenture will also be for the benefit of the
holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that such holders, or
the Special Representative or Special Representatives
acting on behalf of such holders, will be entitled to
enforce this Indenture, as third party beneficiaries,
directly against the Company to the same extent as if
such holders of Preferred Securities held a principal
amount of Securities equal to the liquidation preference
of the Preferred Securities held by such holders.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Government Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series, such Securities or portions thereof shall
have been selected by the Security Registrar as provided
herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the
Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Government Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Government Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Government Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series is to be provided for in
the manner and with the effect provided in this Section,
the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of
less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the sixty (60) day
period commencing with the date of the deposit of moneys
or Government Obligations, as aforesaid, the Company
shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to
such Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the
principal or interest received in respect of such
Government Obligations, including, but not limited to,
any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such
deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Government Obligations,
or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have
occurred and be continuing an Event of Default any cash
received from such principal or interest payments on such
Government Obligations, if not then needed for such pur
pose, shall, to the extent practicable, be invested upon
Company Request and upon receipt of the documents
referred to in clause (y) of the first paragraph of
Section 701, in Government Obligations of the type
described in clause (b) in the first paragraph of Section
701 maturing at such times and in such amounts as shall
be sufficient, together with any other moneys and the
principal of an interest on any other Government
Obligations then held by the Trustee to pay when due the
principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and inter
est earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred
and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to the Securities of any series, means any one of
the following events which shall have occurred and be
continuing:
(a) failure to pay interest, if any, including
any Additional Interest, on any Security of such
series within thirty (30) days after the same
becomes due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen
hereof); provided, however, that a valid extension
of the interest payment period by the Company as
contemplated in Section 311 of this Indenture shall
not constitute a failure to pay interest for this
purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series at
its Maturity (whether or not payment is prohibited
by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company or the Partnership in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree
or order adjudging the Company or the Partnership a
bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than
the Company or the Partnership seeking reorgani
zation, arrangement, adjustment or composition of or
in respect of the Company or the Partnership under
any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the
Company or the Partnership or for any substantial
part of either of their property, or ordering the
winding up or liquidation of either of their
affairs, and any such decree or order for relief or
any such other decree or order shall have remained
unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company or the
Partnership of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insol
vency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by either the
Company or the Partnership to the entry of a decree
or order for relief in respect of it in a case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the
filing by either the Company or the Partnership of a
petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law,
or the consent by either the Company or the
Partnership to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
the Partnership or of any substantial part of either
of their property, or the making by either the
Company or the Partnership of an assignment for the
benefit of creditors, or the admission by either in
writing of its inability to pay its debts generally
as they become due, or the authorization of such
action by the Board of Directors or the General
Partner, as the case may be; or
(f) any other Event of Default specified with
respect to Securities of such series as contemplated
by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series or the Special Representative
in respect of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or due to certain events of bankruptcy,
insolvency or reorganization of the Company or the
Partnership shall have occurred and be continuing, either
the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding
(considered as one class) or the Special Representatives
appointed in respect of series of Outstanding Securities
representing not less than 33% in principal amount of all
Securities then Outstanding, and not the Holders of the
Securities of any one of such series or the Special
Representative appointed in respect of any one series,
may declare the principal of all Securities and interest
accrued thereon to be due and payable immediately
(provided that the payment of principal and interest on
such Securities shall remain subordinated to the extent
provided in the Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest, if any, on
all Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities; and
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Partnership or the Company or
any other obligor upon the Securities or the property of
the Partnership or the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and
payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or other
wise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this Arti
cle shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then due
and unpaid upon the Securities for principal of and
premium, if any, and interest, if any, in respect of
which or for the benefit of which such money has
been collected, ratably, without preference or
priority of any kind, according to the amounts due
and payable on such Securities for principal,
premium, if any, and interest, if any, respectively;
and
Third: To the payment of any surplus then
remaining to the Company, or to whomever may be
lawfully entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808.Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 311) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series or the Special
Representative appointed in respect of such series shall
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to
more than one series of Securities, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class,
or the Special Representative or Special Representatives
appointed with respect to series of Outstanding
Securities representing 66_% in aggregate principal
amount of the Outstanding Securities of all such series,
as the case may be, shall have the right to make such
direction, and not the Holders of the Securities or the
Special Representative of any one of such series; and
provided, further, that such direction shall not be in
conflict with any rule of law or with this Indenture.
Before proceeding to exercise any right or power
hereunder at the direction of such Holders or any such
Special Representative, the Trustee shall be entitled to
receive from such Holders or any such Special
Representative reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with any such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected;
provided, however, that so long as the Partnership holds
the Securities of any series, the Partnership may not
waive any past default without the consent of at least
66_% in aggregate liquidation preference of the
outstanding Preferred Securities affected, obtained as
provided in the Partnership Agreement.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) 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 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 45
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company of the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it
hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to the Trustee's negligence, wilful misconduct or
bad faith; and
(c) indemnify the Trustee for, and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company; provided that so long as any
Preferred Securities remain outstanding, the Partnership
shall not execute any Act to remove the Trustee without
the consent of the holders of 66_% in aggregate
liquidation preference of Preferred Securities
outstanding, obtained as provided in the Partnership
Agreement.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the
goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon
demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least thirty-three per
centum (33%) in principal amount of the Securities then
Outstanding, the Company shall for such purpose join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or
to act as separate trustee, in either case with such
powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other
provisions of this Section. If the Company does not join
in such appointment within 15 days after the receipt by
it of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or Territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, and
at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file
with the Trustee (within thirty (30) days after filing
with the Commission in the case of reports which pursuant
to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to
the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and existing under the laws of the United
States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
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:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series (except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived), without the consent of the Holder of each
Outstanding Security affected thereby; provided, how
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Partnership
may not consent to a supplemental indenture under this
Section 1202 without the prior consent, obtained as
provided in the Partnership Agreement, of the holders of
not less than 66_% in aggregate liquidation preference of
all Preferred Securities affected, considered as one
class, or, in the case of changes described in clauses
(a), (b) and (c) above, 100% in aggregate liquidation
preference of all Preferred Securities then outstanding
which would be affected thereby, considered as one class.
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.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance 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 be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board
Resolution or Officer's Certificate, as the case may be,
delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee
or otherwise be effective unless all conditions set forth
in this Indenture which would be required to be satisfied
if such additions, changes or elimination were contained
in a supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series 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 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company 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 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series 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 and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series 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 one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than ten days prior
to the date on which the meeting is scheduled to be recon
vened. 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 1202, 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 1305.Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of
this 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 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series 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 or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in
full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or securities
of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium or interest, if
any, is made upon the Securities or before any Securities
can be acquired by the Company or any sinking fund payment
is made with respect to the Securities (except that
required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article shall be of no
further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of
Senior Indebtedness, if the Company shall have delivered
to the Trustee a notice to such effect. Any such notice
delivered by the Company shall not be deemed to be a
supplemental indenture for purposes of Article Twelve
hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, all as of the
day and year first above written.
GULF STATES UTILITIES COMPANY
By:_________________________________
______________________________, Trustee
By:_________________________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Gulf States Utilities
Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of ______________________________, one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
Exhibit A-12
No._______________
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE
(RELATING TO PREFERRED SECURITIES)]
GULF STATES UTILITIES COMPANY
[Designation of the Security will be inserted here]
GULF STATES UTILITIES COMPANY, a corporation duly
organized and existing under the laws of the State of Texas
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ____________________________________, or
registered assigns, the principal sum of ____________________
Dollars on __________,____, and to pay interest on said principal
sum [from] _________,____ or from the most recent Interest
Payment Date [to] which interest has been paid or duly provided
for, [in equal installments, in arrears, on ______________ and
______________ of each year, commencing __________, 1995 at the
rate of __% per annum plus Additional Interest, if any, until the
principal hereof is paid or made available for payment. The
amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months
[and for any period shorter than a full calendar month, on the
basis of the actual number of days elapsed in such period. In
the event that any date on which interest is payable on this
Security is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________________ Business Day next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
[Notwithstanding the foregoing, so long as the Holder of this
Security is _________________, L.P. ("________________"), the
rights of the Holder may be subject to those of a Special
Representative as set forth in the Indenture and the payment of
the principal of (and premium, if any) and interest (including
Additional Interest, if any) on this Security will be made at
such place and to such account as may be designated by
___________________.]
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
GULF STATES UTILITIES COMPANY
By: _____________________________
ATTEST:
____________________________
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
, as Trustee
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SUBORDINATED DEBENTURE
(RELATING TO PREFERRED SECURITIES)]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of _______, 1995, as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _____________________,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 1995 creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[The Company shall have the right at any time during
the term of the Securities of this series, from time to time to
extend the interest payment period of such Securities to up to __
consecutive _______ (the "Extended Interest Payment Period"), and
at the end of such Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Securities of this
series to the extent that payment of such interest is enforceable
under applicable law); provided, however, that during such
Extended Interest Payment Period the Company shall not declare or
pay any divided on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing. Prior
to the termination of any such Extended Interest Payment Period,
the Company may further extend the interest payment period,
provided that such Extended Interest Payment Period, together
with all such previous and further extensions thereof, may not
exceed __ consecutive _________ or extend beyond the Stated
Maturity of the Securities of this series. Upon the termination
of any such Extended Interest Payment Period and the payment of
all accrued and unpaid interest then due, the Company may select
a new Extended Interest Payment Period, subject to the above
requirements. No interest during the Extended Interest Payment
Period, except at the end thereof, shall be due and payable. The
Company shall give the Holder of this Security notice of its
selection of such Extended Interest Payment Period as provided in
the Indenture.]*
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
_______________________________
* These provisions may change.
Exhibit A-15
GULF STATES UTILITIES COMPANY
STATEMENT OF RESOLUTION OF BOARD OF DIRECTORS ESTABLISHING AND
DESIGNATING TWENTY-SECOND SERIES OF PREFERRED STOCK AS [ ]
DIVIDEND PREFERRED STOCK-$100 PAR VALUE AND FIXING AND
DETERMINING DIVIDEND AND OTHER PREFERENCES AND RIGHTS OF SUCH
SERIES
TO THE SECRETARY OF THE STATE
OF THE STATE OF TEXAS
Gulf States Utilities Company, pursuant to the provisions of
Article 2.13 of the Texas Business Corporation Act, submits the
following statement for the purpose of establishing and
designating a series of shares and fixing and determining the
relative rights and preferences thereof:
1. The name of the Corporation is GULF STATES UTILITIES
COMPANY
2. The following is a true and correct copy of an extract from
the Minutes of a Special Meeting of the Board of Directors of the
Corporation held on [ ], and includes a
true and correct copy of certain resolutions duly adopted thereat
establishing and designating a series of shares and fixing and
determining the relative rights and preferences thereof:
"WHEREAS, the Board of Directors of this Corporation pursuant
to authority vested in it by the Restated Articles of
Incorporation, as amended, proposes to establish [ ]
shares of this Corporation's Preferred Stock - $100 par value, as
a twenty-second series thereof and to designate the same as
$[ ]Dividend Preferred Stock - $100 par value and to fix
and determine the relative rights and preferences thereof; and
WHEREAS, Article 2.13 of the Texas Business Corporation Act
provides, in effect, that, upon the filing by the Secretary of
State of the State of Texas of an original and a copy of a
statement pursuant to said Article 2.13 setting forth a copy of
the resolution establishing and designating a series of Preferred
Stock and fixing and determining the relative rights and
preferences thereof, such resolution shall become an amendment of
the Restated Articles of Incorporation, upon the filing by said
Secretary of State of the statement mentioned above, now
therefore be it
RESOLVED, that
A. The next succeeding resolution be inserted in Article VI of
the Restated Articles of Incorporation, as amended, of this
Corporation immediately following paragraph 7s. thereof and be
numbered 7u. and bear the designation and title $[ ]
Dividend Preferred Stock - $100 par value.
B. [ ] shares of authorized stock classified as
Preferred Stock - $100 par value as provided in Paragraph A of
Article VI of the Restated Articles of Incorporation, as amended,
shall constitute the twenty-second series of Preferred Stock -
$100 par value and are designated as $[ ] Dividend
Preferred Stock - $100 par value; the fixed dividend rate on the
shares of such series for each dividend period is $11.50 per
share per annum and such dividends are cumulative from
[ ], (subject to the provision in Article
VI E.2 regarding deemed payment prior to the date of issue with
the first dividend payable [ ].
The fixed redemption price on the shares of the twenty-second
series is $[ ] per share if redeemed prior to
[ ]; $[ ] per share if
redeemed prior to [ ], or thereafter,
and prior to [ ]; $[ ] per share if
redeemed on [ ], or thereafter, and prior to
[ ]; and $[ ] per share if redeemed
on [ ], or thereafter; provided,
however that unless all shares of Preferred Stock of each series
then outstanding are redeemed or otherwise retired, no shares of
the twenty-second series of Preferred Stock shall be redeemed at
the option of the Corporation prior to [ ],
directly or indirectly out of the proceeds of or in anticipation
of any refunding involving the incurring of indebtedness or the
issuance of additional shares of Preferred Stock having an
effective interest cost or dividend rate (calculated in
accordance with generally accepted financial practice) of less
than [ ]% per annum. The fixed redemption price on the
shares of such series is $100 per share plus any accrued and
unpaid dividends, if redeemed in satisfaction of the
Corporation's Sinking Fund obligation or pursuant to optional
redemption right provided below.
Subject to the provisions of Article VI of the Restated
Articles of Incorporation, as amended, so long as this twenty-
second series of Preferred Stock shall remain outstanding, on
[ ] and on [ ] in each year
thereafter, the Corporation shall redeem as a Sinking Fund
obligation, 5% of the number of shares of such twenty-second
series of Preferred Stock originally issued and, in addition, the
Corporation may, at its option, redeem on each such [April 15]
additional shares of this twenty-second series of Preferred Stock
in a number not exceeding such percentage, but the right to make
such optional redemption shall not be cumulative and shall not be
applied in reduction of any subsequent mandatory Sinking Fund
redemption provided for above; provided that the Corporations
hall not declare or pay or set apart for, or make or order any
dividend or other distribution in respect of, or purchase or
otherwise acquire for value any shares of, the Common Stock of
the Corporation, or any class of stock as to which the Preferred
Stock of the Corporation has priority as to payments of
dividends, unless all redemptions required to be made in
satisfaction of the Sinking fund obligation provided above have
been made. The Corporation may elect to reduce its obligation in
respect of the redemption of shares so required to be redeemed as
a Sinking Fund obligation by making direct purchases in the open
market or otherwise of shares of this twenty-second series of
Preferred Stock (other than shares previously applied as a credit
against the Sinking Fund obligation)_ and designating such shares
to be applied as a credit, in whole or in part, in an amount
equal to the aggregate par value of the shares so applied,
against the aggregate par value of the shares required to be
redeemed in such year pursuant to the Sinking Fund obligation.
In all cases in which redemptions of less than all outstanding
shares of this twenty-second series re to be made by the
Corporation, the shares to be redeemed shall be selected by lot
in accordance with such procedures as may be approved by the
Board of Directors of this Corporation.
The fixed liquidation price for the shares of such series is
$100 per share; and the fixed liquidation premium per share on
the shares of the twenty-second series if the excess over $100 of
the redemption price at the time in effect.
The $[ ] Dividend Preferred Stock - $100 par value has
no exchange or conversion rights.
C. The President or any Vice President and the Secretary or
any Assistant Secretary of this Corporation be and they hereby
are authorized to execute a statement in substantially the form
submitted to this meeting and bearing the caption "Statement of
Resolution of Board of Directors Establishing and Designating
Twenty-second Series of Preferred Stock as $[ ]] Dividend
Preferred Stock - $100 par value and Fixing and Determining
Dividend and Other Preferences and Rights of Such Series", and
such statement, verified by one of the officers signing the same,
be delivered to the Secretary of State of the State of Texas,
pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act; and
D. The incorporation by reference of the foregoing resolutions
fixing and determining the relative rights and preferences of the
twenty-second series of Preferred Stock on the face or back of
certificates representing shares issued by this Corporation is
hereby authorized."
Dated: [ ] GULF STATES UTILITIES COMPANY
By
PRESIDENT
By
ASSISTANT SECRETARY
STATE OF TEXAS
COUNTY OF JEFFERSON
Before me, a Notary Public, on this day personally appeared [
], known to me to be the person whose name is subscribed to the
foregoing document and, being by me first duly sworn, declared
that he is the President of Gulf States Utilities Company, that
he signed the foregoing document as [ ] of said
Corporation, and that the statements therein contained are true
and correct
Given under my hand and seal of office this day of
, A.D., .
Rhonda Walker
Notary Public in and for
Jefferson County, Texas
My Commission Expires
[ ]
[NOTARIAL SEAL]
Exhibit A-16
GULF STATES UTILITIES COMPANY
STATEMENT OF RESOLUTION OF BOARD OF DIRECTORS ESTABLISHING AND
DESIGNATING TWENTY-SECOND SERIES OF PREFERENCE STOCK AS [ ]
DIVIDEND PREFERENCE STOCK, WITHOUT PAR VALUE AND FIXING AND
DETERMINING DIVIDEND AND OTHER PREFERENCES AND RIGHTS OF SUCH
SERIES
TO THE SECRETARY OF THE STATE
OF THE STATE OF TEXAS
Gulf States Utilities Company, pursuant to the provisions of
Article 2.13 of the Texas Business Corporation Act, submits the
following statement for the purpose of establishing and
designating a series of shares and fixing and determining the
relative rights and preferences thereof:
1. The name of the Corporation is GULF STATES UTILITIES
COMPANY
2. The following is a true and correct copy of an extract from
the Minutes of a Special Meeting of the Board of Directors of the
Corporation held on [ ], and includes a
true and correct copy of certain resolutions duly adopted thereat
establishing and designating a series of Preference Stock,
without par value, as $[____] Dividend Preference Stock.
WHEREAS, Article 2.13 of the Texas Business Corporation Act
provides, in effect, that, upon the filing by the Secretary of
State of the State of Texas of an original and a copy of a
statement pursuant to said Article 2.13 setting forth a copy of
the resolution establishing and designating a series of
Preference Stock and fixing and determining the preferences,
limitation and relative rights thereof shall become an amendment
of the Restated Articles of Incorporation,
NOW THEREFORE BE IT RESOLVED, that
A. The next succeeding resolutions be inserted in Article VI
of the Restated Articles of Incorporation, as amended, of this
Corporation immediately following paragraph 13c. thereof and be
numbered 13d. and bear the designation and title $[ ]
Dividend Preference Stock, without par value;
B. [ ] shares of authorized stock classified as
Preference Stock, without par value, as provided in Paragraph A
of Article VI of the Restated Articles of Incorporation, as
amended, shall constitute a series of Preference Stock, without
par value; the fixed dividend rate on the shares of such series
is $[ ] per share per annum and such dividends are
cumulative from the date of original issue with the first
dividend payable [ ]; such shares are subject
to mandatory redemption in full on _____________ and the fixed
redemption price on the shares of such series for such mandatory
redemption is $[ ] per share. No shares of the $[ ]
Dividend Preference Stock, without par value, may be redeemed in
whole or in part prior to the date for mandatory redemption.
The fixed liquidation price for the shares of such series is
$[ ] per share.
The amount of consideration received by the Corporation for
issuance of the $[ ] Dividend Preference Stock, without par
value, that exceeds $[ ] per share, if any, shall be allocated
to capital surplus, the balance to constitute stated capital. A
vote of ___/100ths per share is hereby fixed for each share of
$[____] Dividend Preference Stock, without par value on such
matters, and only such matters as to which the shares of such
series are entitled to vote under the Restated Articles of
Incorporation.
C. The Chairman of the Board of Directors, President or any
Vice President and the Secretary or any Assistant Secretary of
this Corporation be and they hereby are authorized to execute a
statement in substantially the form submitted to this meeting and
bearing the caption "Statement of Resolution of Board of
Directors Establishing and Designating A Series of Preference
Stock as $[ ]] Dividend Preference Stock, without par value
and Fixing and Determining Dividend and Other Preferences and
Rights of Such Series", and such statement, verified by one of
the officers signing the same, be delivered, in the form of an
original and a copy, to the Secretary of State of the State of
Texas, pursuant to the provisions of Articles 2.13 and 2.36B(1)
of the Texas Business Corporation Act; and
D. The incorporation by reference of the foregoing resolutions
fixing and determining the relative rights and preferences of the
$[____] Dividend Preference Stock on the face or back of
certificates representing shares issued by this Corporation is
hereby authorized."
3. This statement does not relate to an increase or decrease
in the number of shares of any series.
4. This statement does not relate to the elimination of a
series of shares.
5. The resolutions copies in paragraph 2 above were duly
adopted by all necessary action on the part of the Corporation.
Dated: [ ] GULF STATES UTILITIES COMPANY
By
Chairman of the Board, President
and Chief Executive Officer
By
Assistant Secretary
<PAGE>
STATE OF TEXAS
COUNTY OF JEFFERSON
Before me, a Notary Public, on this day personally appeared [
], known to me to be the person whose name is subscribed to the
foregoing document and, being by me first duly sworn, declared
that he is the ___________________________________________ of
Gulf States Utilities Company, that he signed the foregoing
document as [_______________________________________] of said
Corporation, and that the statements therein contained are true
and correct
Given under my hand and seal of office this day of
, A.D., .
Rhonda Walker
Notary Public in and for
Jefferson County, Texas
My Commission Expires
[ ]
[NOTARIAL SEAL]
Exhibit A-22
(FORM OF FACE OF THE ENVIRONMENTAL SERIES [ ] BOND)
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE
UNDER THE TRUST INDENTURE, DATED AS OF _____________ 1, 199__
BETWEEN THE PARISH OF WEST FELICIANA, STATE OF LOUISIANA, AND
_____________________________________, AS TRUSTEE.
GULF STATES UTILITIES COMPANY
FIRST MORTGAGE BOND, ENVIRONMENTAL SERIES [ ]
DUE ___________________
GULF STATES UTILITIES COMPANY, a Texas corporation
(hereinafter sometimes called the "Company"), for value received,
hereby promises to pay to __________________, as Trustee under
the Trust Indenture, dated as of ____________ 1, 199 between
the Parish of West Feliciana, State of Louisiana, and
__________________, as Trustee, or registered assigns,
___________________ Dollars on ___________________, without
interest thereon.
The principal of and interest on this bond will be paid in
any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and
private debts, at the corporate trust office in the Borough of
Manhattan, City and State of New York, of the Trustee under the
Indenture.
This bond is one of the bonds, of the above designated
series (hereinafter referred to as the "Environmental Series [
] Bonds"), of an authorized issue of bonds of the Company, known
as First Mortgage Bonds, issued or issuable in one or more series
under and equally secured (except in so far as any sinking and/or
improvement fund, maintenance and replacement fund or other fund
established in accordance with the provisions of the Indenture
hereinafter mentioned may afford additional security for the
bonds of any specific series) by an Indenture of Mortgage dated
September 1, 1926, as supplemented and modified by indentures
supplemental thereto, to and including a [ ]
Supplemental Indenture dated as of _________ 1, 199__, to
Chemical Bank, as Trustee (hereinafter referred to as the
"Trustee"), to which Indenture of Mortgage, as so supplemented
and modified, and all indentures supplemental thereto (herein
sometimes called the Indenture) reference is hereby made for a
description of the property mortgaged and pledged as security for
said bonds, the nature and extent of the security, and the
rights, duties and immunities thereunder of the Trustee, the
rights of the holder of said bonds and of the Trustee and of the
Company in respect of such security, and the terms upon which
said bonds may be issued thereunder.
The Environmental Series [ ] Bonds have been issued
by the Company to secure the payment when due (whether at
maturity, by acceleration, upon redemption, or otherwise) of the
principal of and interest on the Parish of West Feliciana, State
of Louisiana, Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series 1994 (hereinafter called
the ''Parish Series 1994 Bonds"). Notwithstanding any provision
herein to the contrary, the obligation of the Company to make
payments with respect to the principal of Environmental Series [
] Bonds and to deposit cash to redeem bonds of such series shall
be fully or partially, as the case may be, satisfied and
discharged to the extent that, at the time that any such payments
or deposits shall be due, the then due principal of and interest
on the Parish Series [ ] Bonds shall have been fully or partially
paid or there shall be in the Bond Fund established pursuant to the
Trust Indenture, dated as of _____________ 1, 199__ (herein referred
to as the "Trust Indenture"), between the Parish of West Feliciana,
State of Louisiana, and _____________________, as Trustee (the
"Parish Trustee"), sufficient available funds to fully or
partially pay the then due principal of and interest on the
Parish Series [ ] Bonds. The Trustee may conclusively
presume that the obligation of the Company to make payments with
respect to the principal of the Environmental Series [ ]
Bonds have been fully satisfied and discharged unless and until
the Trustee shall have received a written notice from the Parish
Trustee, signed by its President, a Vice President or a Trust
Officer, stating (i) that timely payment of the principal of and
interest on the Parish Series [ ] Bonds (whether upon
acceleration of maturity or otherwise) has not been made, (ii)
that there are not sufficient available funds in the Bond Fund
under the Trust Indenture to make such payment, and (iii) the
amount of additional funds that are required to make such
payment or redemption.
The Environmental Series [ ] Bonds are subject to
redemption prior to maturity upon the optional or mandatory
redemption, in whole or in part, of the Parish Series [ ]
Bonds issued under the Trust Indenture, or upon the acceleration
of maturity of all or any part of the Parish Series [ ] Bonds as
provided in the Trust Indenture. To cause the redemption of the
Environmental Series [ ] Bonds, the Parish Trustee shall
deliver to the Trustee (and mail a copy thereof to the Company) a
written demand (hereinafter referred to as the "Redemption
Demand") for the redemption of the Environmental Series [
] Bonds equal, as nearly as practicable, in principal amount to
the sum of (i) the principal amount of Parish Series [ ] Bonds
and (ii) ______-twelfths (__/12) of the annual interest due on
such Parish Series [ ] Bonds to be redeemed or paid upon such
accelerated maturity to be redeemed by the Company, on the date
fixed for redemption of Parish Series [ ] Bonds, at the principal
amount thereof. The Redemption Demand shall be signed by the
President, a Vice President or a Trust Officer of the Parish
Trustee stating that, as the case may be, the Parish Series [
] Bonds have become immediately due and payable pursuant to
Section 10.2 of the Trust Indenture, upon the occurrence of an
Event of Default under Section 10.1(a) or (b) of the Trust
Indenture, or Parish Series [ ] Bonds are to be redeemed pursuant
to Section 4.1(b) of the Trust Indenture and specifying the date
fixed for the redemption and the principal amount thereof. The
Redemption Demand shall also contain a waiver of notice of such
redemption by the Parish Trustee, as holder of all the
Environmental Series [ ] Bonds then outstanding. The
Trustee may conclusively presume the statements contained in the
Redemption Demand to be correct. Redemption of the Environmental
Series [ ] Bonds shall be in principal amount equal, as
nearly as practicable, to the sum of (i) the principal amount of
the Parish Series l994 Bonds and (ii) ________-twelfths (__/12)
of the annual interest due on such Parish Series
[ ] Bonds to be redeemed or paid upon accelerated maturity,
and such amounts shall become and be due and payable on the
redemption date or the date of accelerated maturity. The Company
hereby covenants that, if a Redemption Demand shall be delivered
to the Trustee, the Company, subject to the provisions of the
preceding paragraph regarding the satisfaction and discharge of
this obligation, will deposit with the Trustee, on or before the
redemption date of the Environmental Series [ ] Bonds so
called for redemption, an amount in cash sufficient to redeem
such Bonds so called for redemption, plus any premium and accrued
interest thereon.
If this bond or any portion thereof (One Thousand Dollars or
an integral multiple thereof) is duly called for redemption and
payment duly provided for or otherwise duly satisfied and
discharged as specified in the Indenture (including but not
limited to Section 1.01 of the [ ] Supplemental
Indenture), this bond or such portion thereof shall cease to be
entitled to the lien of the Indenture from and after the date
payment is so provided for or otherwise duly satisfied and
discharged and shall cease to bear interest from and after the
redemption date.
In the event of the selection for redemption of a portion
only of the principal of this bond, payment of the redemption
price will be made only (a) upon presentation of this bond for
notation hereon of such payment of the portion of the principal
of this bond so called for redemption, or (b) upon surrender of
this bond in exchange for a bond or bonds of authorized
denominations of the same series, for the unredeemed balance of
the principal amount of this bond.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than
seventy-five per cent in principal amount of the bonds (exclusive
of bonds disqualified by reason of the Company's interest therein
) at the time outstanding, including, if more than one series of
bonds shall be at the time outstanding, not less than sixty per
cent in principal amount of each series affected, to effect, by
an indenture supplemental to the Indenture, modifications or
alterations of the Indenture and of the rights and obligations of
the Company and of the holders of the bonds; provided, however,
that no such modification or alteration shall be made without the
written approval or consent of the registered owner hereof which
will (a) extend the maturity of this bond or reduce the amount of
the principal hereof, or (b) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of the
Indenture, or (c) reduce the percentage of the principal amount
of the bonds upon the approval or consent of the holders of which
modifications or alterations may be made as aforesaid.
By acceptance of this bond the Parish Trustee agrees, for
itself and the holders from time to time of the Parish Series [
] Bonds, to deliver this bond to the Company for cancellation
when required under the provisions of Section _______ of the [
] Supplemental Indenture.
The Parish Trustee, as original holder of all the bonds of
this series, consented to the execution and delivery by the
Company and Chemical Bank, Trustee, of a supplemental indenture
to modify the Indenture (i) to eliminate the requirement for a
maintenance and replacement fund and all references and
requirements relating thereto and (ii) to eliminate all
requirements with respect to and all references to a minimum
provision for depreciation. Such consent is binding upon all
subsequent holders of all bonds of this series. By virtue of the
[ ] receipt of the Parish Series [ ]
Bonds, each holder thereof shall be deemed to have consented to
the action of the Parish Trustee in consenting to and approving
the modifications and amendments of the Indenture as described
herein. Such modifications shall become effective if and when
requisite consents have been obtained from holders of bonds of
other series and a supplemental indenture effecting such
modifications has been duly authorized and executed or on June 2,
2010, whichever occurs first.
Subject to the restriction noted on this bond, this bond is
transferable by the registered owner hereof in person or by his
duly authorized attorney at the corporate trust office of the
Trustee in the Borough of Manhattan, City and State of New York,
upon surrender of this bond for cancellation and upon payment, if
the Company shall so require, of the charges provided for in the
Indenture, and thereupon a new registered bond of the same series
of like principal amount will be issued to the transferee in
exchange therefor.
The registered owner of this bond, at the option of such
registered owner, may surrender the same for cancellation at said
office and receive in exchange therefor the same aggregate
principal amount of bonds of the same series but of other
authorized denominations, upon payment, if the Company shall so
require, of the charges provided for in the Indenture and subject
to the terms and conditions therein set forth.
If a default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable
before maturity in the manner and with the effect provided in the
Indenture. The holders of certain specified percentages of the
bonds at the time outstanding, including in certain cases
specified percentages of bonds of particular series, may in the
cases, to the extent and under the conditions provided in the
Indenture, waive certain defaults thereunder and the consequences
of such defaults.
No recourse shall be had for the payment of the principal of
this bond, or for any claim based hereon, or otherwise in respect
hereof or of the Indenture, against any incorporator,
shareholder, director or officer, past, present or future, as
such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or such
predecessor or successor corporation, under any constitution or
statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators,
shareholders, directors and officers, as such, being waived and
released by the holder and owner hereof by the acceptance of this
bond and as provided in the Indenture.
This bond shall not become or be valid or obligatory for any
purpose until the authentication certificate hereon shall have
been signed by the Trustee.
<PAGE>
IN WITNESS WHEREOF, Gulf States Utilities Company has caused
these presents to be executed in its corporate name, by facsimile
signature or manually, by its Chairman of the Board of Directors
or its President or one of its Vice Presidents and by its
Treasurer or an Assistant Treasurer under its corporate seal or a
facsimile thereof, all as of
GULF STATES UTILITIES COMPANY
By ______________________________
Vice President-Financial
Strategies
_______________________________
Assistant Treasurer
Exhibit B-1
____________, 1996
To prospective purchasers
of the First Mortgage Bonds, Medium
Term Note Series, Sub-series of
Gulf States Utilities Company
Gentlemen:
Gulf States Utilities Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $ aggregate
principal amount of its First Mortgage Bonds, Medium Term
Note Series, Sub-series ("Bonds"). The Company will
receive proposals for the purchase of all or such portion of
the Bonds as may be designated by the Company to prospective
purchasers.
Enclosed please find copies of a prospectus dated
relating to the Bonds, a questionnaire to be used in
furnishing certain information to the Company and an
Underwriting Agreement for use in submitting a proposal.
You may obtain copies of the registration statement relating
to the Bonds and of the documents incorporated by reference
in the prospectus by contacting
____________________________________________.
The Company will give notice ("Notice") to two or more
of the following prospective purchasers: Morgan Stanley &
Co. Incorporated, Merrill Lynch & Co., Salomon Brothers
Inc., The First Boston Corporation, Smith Barney, Harris
Upham & Co. Incorporated, Stephens Inc., Bear, Stearns &
Co., Inc., UBS Securities Inc., Prudential Securities, Inc.,
Morgan Keegan & Co., Inc., Shearson Lehman Brothers, Inc.,
J. P. Morgan Securities Inc., Goldman, Sachs & Co., A. G.
Edwards & Sons, Inc., Chase Securities Inc. and J. C.
Bradford & Co. at least two (2) hours prior to the time
proposals are to be submitted of (i) the principal amount of
the Bonds being offered, (ii) the date on which such Bonds
will be issued, (iii) the maturity date of such Bonds, (iv)
the date from which interest will accrue, (v) the range
within which the price offered to the Company by the
prospective purchasers of the Bonds would be acceptable,
(vi) whether the Company will provide, or will permit
prospective purchasers to provide, an insurance policy for
the payment of the principal of and/or interest on the Bonds
being offered and, if such an insurance policy will be
provided by the Company, the terms thereof, (vii) the date,
time and location for the submission of proposals, (viii)
the manner in which proposals are to be submitted, (ix)
whether the redemption provisions described in Appendix A
hereto will be applicable to the Bonds being offered and the
terms of any other redemption provisions that may be
applicable and (x) whether the dividend covenant described
in Appendix A will be applicable to the Bonds being offered.
The Company will also make available to prospective
purchasers, prior to the time proposals are to be submitted,
a description of the procedures that will be used by the
Company to determine the winning proposal. Various basic
terms relating to the Bonds are set forth in Appendix A
hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-
1000), is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Bonds under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
GULF STATES UTILITIES COMPANY
By:
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
GULF STATES UTILITIES COMPANY
Summary of Terms
Relating to the Purchase of First Mortgage Bonds of a
Particular Series
Principal Amount To be designated by the Company in the
Notice.
Date of Issuance To be designated by the Company in the
Notice.
Date of Maturity To be designated by the Company in the
Notice.
Date from which
Interest will To be designated by the Company in the
Accrue Notice.
Interest Rate The annual interest rate shall be as set
forth in the Underwriting Agreement
submitted by the successful underwriter
or underwriters and shall be a multiple
of 0.125% (1/8th of 1%.
Insurance If the Company determines to provide, or
to permit prospective purchasers to
provide, an insurance policy for the
payment of the principal of and/or
interest on one or more series of the
Bonds, the Company will so state in the
Notice. If such an insurance policy is
to be provided by the Company, the terms
thereof will be described in the Notice.
Sinking Fund See the accompanying prospectus relating
to the Bonds.
Dividend Covenant, if If specified in the Notice, the Company
any will covenant in substance that, so long
as any Bonds of the particular series
being offered remain outstanding, it
will not pay any cash dividends on
common stock after a selected date close
to the date of the original issuance of
such series of Bonds (other than certain
dividends that may be declared by the
Company prior to the original issuance
of such series of Bonds) except from
credits to earned surplus after such
selected date plus an amount of up to
$345 million and plus such additional
amounts as shall be approved by the
Securities and Exchange Commission
Price to Company The price shall be as set forth in the
Underwriting Agreement submitted by the
successful purchaser or purchasers and
shall be within a range of not more than
five percentage points (as designated by
the Company in the Notice), which range
shall be within 95% and 105% of the
principal amount, plus accrued interest
at the rate set forth in such
Underwriting Agreement
Redemption Provisions Unless otherwise stated in the Notice,
the following redemption provisions
shall be applicable: For the purpose of
determining the redemption prices of the
Bonds: (a) the term "annual redemption
period" shall mean the twelve month
period beginning (1) on the first day of
the calendar month in which the Bonds
are issued in each calendar year,
beginning with the calendar year in
which the Bonds are issued, and ending
on the last day of the preceding
calendar month of the next succeeding
calendar year; except that, if the Bonds
are issued in the month of January, and
bear interest from the first day of
January, then ending on the last day of
December in the same calendar year, or
(2) if the Bonds bear interest from the
15th day of the month in which the Bonds
are issued, then beginning on the 15th
day of said month, and ending on the
14th day of the same calendar month of
the next succeeding calendar year; (b)
the term "stated interest rate" shall
mean the stated interest rate per annum
to be set forth in the Bonds (stated as
a percentage of the principal amount
thereof), as specified in the successful
proposal; (c) the term "initial public
offering price" shall mean the single
fixed price (stated as a percentage of
the principal amount of the Bonds and
exclusive of accrued interest) at which
the Bonds are to be initially offered
for sale to the public by the successful
purchaser or purchasers, as specified by
them at the time of the acceptance of
the successful proposal and as set forth
in the supplement to the Prospectus
relating to the Bonds to be filed with
the Securities and Exchange Commission
following the acceptance of the
successful proposal; provided, however,
that if the successful purchaser or
purchasers shall specify at the time of
the acceptance of the successful
proposal that they do not intend to make
a public offering of the Bonds at a
single fixed price, the term "initial
public offering price" shall mean the
price (stated as a percentage of the
principal amount of the Bonds and
exclusive of accrued interest) to be
paid by the successful purchaser or
purchasers to the Company for the Bonds;
(d) the term "initial unadjusted
premium" shall mean the amount (stated
as a percentage of the principal amount
of the Bonds and before the adjustment
provided for below) by which the initial
public offering price plus the stated
interest rate shall exceed 100% of the
principal amount of the Bonds; (e) the
term "applicable fraction" shall mean a
fraction, the numerator of which shall
be one and the denominator of which
shall be the lesser of (i) 24 or (ii)
two less than the number of years from
the date of the Bonds to their stated
maturity; provided, however, that the
denominator shall never be less than
four; and (f) the term "date of issue"
shall mean the day of the calendar month
to which the Bonds are issued from which
interest accrues.
The general redemption prices of the
Bonds shall be, for and during the first
annual redemption period, 100% of their
principal amount plus the initial
unadjusted premium for and during each
annual redemption period thereafter
until the annual redemption period for
which the general redemption price shall
be reduced to 100% of their principal
amount without premium, 100% of their
principal amount plus a premium equal to
the initial unadjusted premium, less an
amount equal to the applicable fraction
of the initial unadjusted premium
multiplied by the number of annual
redemption periods which shall have
passed between the date of issue and the
date fixed for redemption; and for and
during each annual redemption period
thereafter, 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption; provided,
however, that the general redemption
prices shall never be less than the
special redemption prices. The Company
may determine to limit for a period of
years set forth in the Notice its
ability to redeem the Bonds under
circumstances where general redemption
prices would be applicable, if such
redemption is for the purpose or in
anticipation of refunding such Bonds
through the use, directly or indirectly,
of funds borrowed by the Company at an
effective interest cost to the Company
(computed in accordance with generally
accepted financial practice) of less
than the "effective interest cost"
(stated as a multiple of 0.0001%
(1/10,000th of 1%)), of the Bonds. The
"effective cost" will be the yield based
on the date of maturity of the Bonds,
the interest rate to be borne thereby
and the price to the Company (exclusive
of accrued interest) for the Bonds.
For the purpose of determining the
special redemption applicable for and
during any annual redemption period of
the Bonds which are to be reoffered at a
single fixed price, the stated interest
rate to be borne by such Bonds, a term
equal to the number of years from the
beginning of each such redemption period
to the stated maturity, and the basic
yield of such Bonds shall be used. The
term "basic yield" for such purpose
shall mean the percentage yield,
computed to at least eight decimal
places and calculated on the basis of
(a) the initial public offering price,
(b) the stated interest rate and (c) the
date of maturity of such Bonds. The
special redemption price of such Bonds
applicable for and during any annual
redemption period shall be such price as
will produce a yield equal to the basic
yield, except that for and during any
annual redemption period for which the
general redemption price of such Bonds
shall be 100% of their principal amount
without premium, the special redemption
price shall be 100% of their principal
amount without premium, and except that,
if the initial public offering price is
100% of the principal amount of such
Bonds or less, the special redemption
price of such Bonds during each annual
redemption period shall be 100% of their
principal amount without premium; in
each case together with accrued interest
to the date fixed for redemption. The
special redemption price applicable for
and during any annual redemption period
of such Bonds which are not reoffered at
a single fixed price shall be 100% of
their principal amount without premium,
together with accrued interest to the
date fixed for redemption.
If, in any case, other than the initial
general and special redemption prices, a
redemption price computed as hereinabove
set forth shall not be a multiple of
0.01% (1/100 of 1%) and if the remainder
of dividing such price by .01% is
greater than .5, the price shall be
rounded up to the next higher multiplier
of .01%; otherwise it shall be rounded
down to the next lower multiple of .01%.
If the foregoing redemption provisions
shall not be applicable, the Company
will specify in the Notice the
applicable redemption provisions, which
could include, for example, an absolute
prohibition on redemption for a period
of years or for the life of the Bonds.
Registration No. 33-__________
Statements
Miscellaneous For further information regarding the
terms of the Bonds, please refer to the
accompanying Prospectus relating to the
Bonds.
The Underwriting Agreement submitted by
the successful purchaser or purchasers
shall, upon acceptance by the Company,
become effective as and constitute the
agreement between the Company and such
purchaser or purchasers covering the
sale and purchase of the Bonds.
Exhibit B-2
_______________, 1996
To prospective purchasers of Preferred Stock,
Cumulative, $100 Par Value or
Preferred Stock, Cumulative, without
Par Value, and/or Preference Stock of
Gulf States Utilities Company
Gentlemen:
Gulf States Utilities Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time (i) not to exceed [ ] shares of
its Preferred Stock, Cumulative, without Par Value and/or
(ii) not to exceed [ ] shares of its Preferred
Stock, Cumulative, $100 Par Value, and/or [ ]
shares of Preferred Stock; provided, however, that the
aggregate par value of Preferred Stock and Preference Stock
issued shall not exceed [$ ] (collectively, the
"Stock"). The Company will receive proposals for all or
such portion of the Stock as may be designated by the
Company to prospective purchasers.
Enclosed please find copies of a prospectus dated
___________________ ("Prospectus") relating to
$__________________ aggregate par value of the Company's
Preferred and/or Preference Stock, a questionnaire to be
used in furnishing certain information to the Company and an
Underwriting Agreement for use in submitting a proposal.
You may obtain copies of the registration statement relating
to the Stock and of the documents incorporated by reference
in the prospectus by contacting _________________________
____________________________________________________________
_____.
The Company will give notice ("Notice") to two or more
of the following prospective purchasers: Morgan Stanley &
Co. Incorporated. Merrill Lynch & Co., Goldman, Sachs & Co.,
Salomon Brothers Inc., The First Boston Corporation, Smith
Barney Harris Upham & Co. Incorporated, Stephens Inc.,
Prudential Securities, Inc., Shearson Lehman Brothers, Inc.,
Morgan Keegan & Co., Inc., Bear, Stearns & Co., Inc., and
Robert W. Baird & Co. Incorporated at least two (2) hours
prior to the time proposals are to be submitted of (i) the
number of shares being offered; (ii) the par value of the
shares being offered; (iii) the initial dividend payment
date for the Stock and the date from which dividends shall
be cumulative; (iv) whether the terms of the Stock will
include a sinking fund, and if so, the terms thereof; (v)
the date, time and location for the submission of proposals;
(vi) the manner in which proposals are to be submitted; and
(vii) whether the redemption provisions described in
Appendix A hereto will be applicable to the Stock and the
terms of any other redemption provisions as may be
applicable. The Company will also make available prior to
the time proposals are to be submitted a description of the
procedures that will be used by the Company to determine the
winning proposal. Various basic terms relating to the Stock
are set forth in Appendix A hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-1000),
is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Stock under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
GULF STATES UTILITIES COMPANY
By: __________________________________
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
GULF STATES UTILITIES COMPANY
Summary of Terms
Relating to the Purchase of Preferred Stock, Cumulative,
Without Par Value and/or Preferred Stock, Cumulative,
$100 Par Value of a Particular Series and/or
Preference Stock, Without Par Value
Number of Shares To be designated by the Company in
the Notice.
Par Value Without par value or $100 per share
to be designated by the Company in
the Notice.
Dividend Rate The Dividend Rate, expressed as a
percentage of par value, (except as
to Preferred and Preference without
par value) shall be as set forth in
the Underwriting Agreement submitted
by the successful purchaser or
purchasers and shall be (i) a
multiple of [ ] in the
case of no par Preferred; (ii) a
multiple of [ ] in
the case of $100 Preferred; and
(iii) not less than
[ ] in the case
of Preference.
Dividend Rights See the accompanying Prospectus
relating to the Stock.
Price to the Company Not less than [$ ] nor more than
[$ ] per share in the case of no
par Preferred and not less than
$100.00 nor more than $102.75 per
share in the case of $100 Preferred
and not less than [ ] for the
Preference, plus, in each case,
accumulated dividends, if any, at
the Dividend Rate, as set forth in
the Underwriting Agreement submitted
by the successful purchaser or
purchasers.
Purchasers' In the event of a reoffering of the
Compensation Stock, the Company shall pay to the
successful purchaser or purchasers,
for its or their services in
purchasing and making a reoffering
of the Stock, the amount per share
of compensation specified in the
Underwriting Agreement submitted by
such purchaser or purchasers,
provided that the proceeds received
by the Company from the sale of the
Stock, less the purchasers'
compensation, shall not be less than
95% of the aggregate price to the
Company for the Stock.
Sinking Fund If the Notice so states, the Stock
will be subject to a sinking fund as
set forth in the Notice.
Redemption Provisions Unless otherwise stated in the
Notice, the following redemption
provisions shall be applicable: For
the purpose of determining the
redemption prices of the Stock, the
term "purchase price" shall mean the
per share price (exclusive of
accumulated dividends, if any) to be
paid by the successful purchaser or
purchasers to the Company for the
Stock.
(i) If the Stock is subject to a
sinking fund as designated by the
Company in the Notice, the
redemption price per share of the
Stock shall be, if the date of
redemption is on or before the first
day of the calendar month in which
the first anniversary of the date of
issue of the Stock occurs, the
purchase price per share plus an
amount equal to the annual dollar
amount per share of the dividend,
and thereafter such redemption price
will decline in each subsequent
annual period in equal decrements to
par value, for and during the annual
period commencing with the second
day of the calendar month in which
the anniversary of the date of issue
of the Stock occurs and ending on
the date on which all shares of the
Stock are to be redeemed pursuant to
the mandatory requirements of the
sinking fund; in each case, plus
unpaid accumulated dividends to the
date of redemption.
(ii) If the Stock is not subject to
a sinking fund as designated by the
Company in the Notice, the
redemption prices of the Stock per
share shall be the purchase price
per share plus an amount equal to:
(a) the annual dollar amount per
share of the dividend if the date of
redemption is on or before the first
day of the calendar month in which
the fifth anniversary of the date of
issue of the Stock occurs; (b) 75%
of the annual dollar amount per
share of the dividend thereafter
through the first day of the
calendar month in which the tenth
anniversary of the date of issue of
the Stock occurs; (c) 50% of the
annual dollar amount per share of
the dividend thereafter through the
first day of the calendar month in
which the fifteenth anniversary of
the date of issue of the Stock
occurs; or (d) 25% of the annual
dollar amount per share of the
dividend thereafter, in each case
plus unpaid accumulated dividends to
the date of redemption.
The Company may determine to limit
for a period of years as set forth
in the Notice its ability to redeem
shares of the Stock if such
redemption is for the purpose or in
anticipation of refunding such
shares through the use, directly or
indirectly, of funds borrowed by the
Company or through the use, directly
or indirectly, of funds derived
through the issuance by the Company
of stock ranking prior to or on a
parity with the Stock as to
dividends or assets, if such
borrowed funds have an effective
interest cost to the Company
(computed in accordance with
generally accepted financial
practice) or such stock has an
effective dividend cost to the
Company (so computed) of less than
the "effective dividend cost"*
(stated as a multiple of 0.0001 of
1%) to the Company of the Stock.
If, in any case, a redemption price
of Stock shall not be a multiple of
one cent, such price shall be
adjusted by increasing it to the
next higher multiple of one cent.
If the foregoing redemption
provisions shall not be applicable,
the Company will specify in the
Notice the applicable redemption
provisions, which could include, for
example, an absolute prohibition on
redemption for a period of years or
during such time that the applicable
series of Stock is outstanding.
Liquidation Rights See the accompanying Prospectus
relating to the Stock.
Voting Rights See the accompanying Prospectus
relating to the Stock.
Registration No. 33-__________
Statement
Miscellaneous For further information regarding
the terms of the Stock, please refer
to the accompanying Prospectus
relating to the Stock.
The Underwriting Agreement submitted
by the successful purchaser or
purchasers shall, upon acceptance by
the Company, become effective as and
constitute the agreement between the
Company and such purchaser or
purchasers covering the sale and
purchase of the Stock.
_______________________________
* (a) If the Stock is not subject to a sinking fund as
designated by the Company in the Notice, the "effective
dividend cost" will be determined by multiplying the
Dividend Rate by the aggregate par value of the Stock, and
dividing the product of such numbers by a number equal to
the amount of the proceeds to be received by the Company
from the sale of the Stock less the compensation, if any, to
be paid by the Company to the successful purchaser or
purchasers.
(b) If the Stock is subject to a sinking fund as designated
by the Company in the Notice, the "effective dividend cost"
will be determined as twelve times the monthly rate
necessary to discount payments to be made by the Company on
the Stock (dividends and mandatory sinking fund obligations,
including accumulated dividends, if any) to amounts which in
the aggregate equal the amount of the proceeds to be
received by the Company from the sale of the Stock less the
compensation, if any, to be paid by the Company to the
successful purchaser or purchasers. For purposes of this
calculation, the aggregate par value of the Stock shall be
deemed to be reduced from time to time by the mandatory
sinking fund obligations with respect to the Stock.
Exhibit B-3
R e f u n d i n g A g r e e m e n t
between
Parish of West Feliciana,
State of Louisiana
and
Gulf States Utilities Company
Dated as of September 1, 1994
[$ ]
Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series [ ]
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of [ ] by and
between the Parish of West Feliciana, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and Gulf States Utilities Company, a corporation duly organized
and existing under the laws of the State of Texas and qualified
to do business in the State of Louisiana (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the Constitution
and laws of such State and is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (La. R.S.
39:1444-1456) (the "Act"), to issue refunding bonds for the
purpose of refunding, readjusting, restructuring, refinancing,
extending, or unifying the whole or any part of outstanding
securities of the Issuer in an amount sufficient to provide funds
necessary to effectuate the purpose for which the refunding bonds
are being issued and to pay all costs associated therewith; and
WHEREAS, pursuant to the provisions of Sections 991 to 1001,
inclusive, of Title 39 of the Louisiana Revised Statutes of 1950,
as amended (the "Prior Act") and an Indenture of Trust and Pledge
dated as of [
] (collectively, the "Prior Indenture"), the Issuer issued its
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) [ ] (the
"Prior Bonds") in the aggregate principal amount of [$
] for the purpose of providing funds to finance the cost of
acquiring a leasehold interest in the undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities (the "Facilities") at the River Bend Unit 1 nuclear
power plant in the Parish of West Feliciana, Louisiana, owned by
the Company; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to this Agreement,
said refunding bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Agreement and any moneys held under the hereinafter defined
Indenture, and said refunding bonds never to constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Louisiana, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Agreement under
the Act have been in all respects duly and validly authorized by
a resolution of the Police Jury of the Parish of West Feliciana,
State of Louisiana, duly adopted;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words and
terms elsewhere defined in this Agreement or in the Indenture,
the following words and terms as used in this Agreement shall
have the following meanings unless the context or use indicates
another or different meaning:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or the Indenture including the compensation and
reimbursement of expenses and advances payable to the Trustee,
any paying agent, any co-paying agent, and the registrar under
the Indenture.
"Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the [$ ] aggregate principal amount
of Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] authorized to be
issued under the Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a Texas
corporation, and its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926, made to The Chase National Bank in
the City of New York, as trustee, as heretofore and hereafter
amended and supplemented.
"Company Mortgage Trustee" means the trustee under the
Company Mortgage.
"Co-Owner" means Cajun Electric Power Cooperative, Inc., a
Louisiana corporation.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities financed with the proceeds of the Prior Bonds at the
Company's River Bend Unit 1 nuclear power plant in the Parish of
West Feliciana, Louisiana.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form on the books of the
Department of Treasury of the United States of America), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of [
] between the Issuer and the Trustee securing the Bonds, and any
amendments and supplements thereto.
"Issuer" means the Parish of West Feliciana, State of
Louisiana, a political subdivision of the State of Louisiana.
"Joint Ownership Agreement" means the Joint Ownership
Participation and Operating Agreement, River Bend Unit 1 Nuclear
Plant, dated August 28, 1979, among the Company, Cajun Electric
Power Cooperative, Inc., a Louisiana corporation, and Sam Rayburn
G & T, Inc., a Texas corporation, as amended from time to time.
"outstanding", when used with reference to the Bonds, shall
mean, as of any particular date, all Bonds authenticated and
delivered under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to the Indenture; and
(d) Bonds registered in the name of the Issuer.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (Gulf States Utilities Company Project) Series [
]issued and outstanding in the aggregate principal amount of $[
].
"Prior Indenture" means the Indenture of Trust and Pledge
dated [
].
"Refunding Date" means ___________, 199 , [or such later
date as may be agreed to by the Issuer and the Company; provided,
however, that the Refunding Date shall not be later than ninety
(90) days following the date of issuance of the Bonds].
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trustee" means First National Bank of Commerce, in the City
of New Orleans, Louisiana, as trustee under the Indenture, and
its successors as trustee.
SECTION 1.2. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Agreement
and not solely to the particular portion thereof in which any
such word is used. The definitions set forth in Section 1.1
hereof include both singular and plural. Whenever used herein,
any pronoun shall be deemed to include both singular and plural
and to cover all genders.
SECTION 1.2. Nontaxability. It is intended by the parties
hereto that this Agreement and all action taken hereunder be
consistent with and pursuant to the resolutions of the governing
authority of the Issuer relating to the Bonds, and that the
interest on the Bonds be excluded from the gross income of the
recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the
constitution and laws of such State and is authorized and
empowered by the provisions of the Act and other
constitutional and statutory authority supplemental
thereto, to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Agreement and the Indenture and to carry out its
obligations under this Agreement and the Indenture and the
transactions contemplated hereby and thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Agreement and the Indenture and the
issuance and sale of the Bonds.
(d) The Bonds are to be issued under and secured by
the Indenture, pursuant to which the interest of the Issuer
in this Agreement and the amounts payable under this
Agreement, (other than indemnification and expense
reimbursement rights) will be assigned to the Trustee as
security for the payment of the principal of, premium, if
any, and interest on the Bonds.
(e) Neither the execution and delivery of this
Agreement or the Indenture, nor the assignment of this
Agreement to the Trustee, nor the consummation of the
transactions contemplated by this Agreement or the
Indenture, nor the fulfillment of or compliance with the
terms and conditions of this Agreement or the Indenture,
results or will result in the violation of any governmental
order applicable to the Issuer, or conflicts or will
conflict with or results or will result in a breach of any
of the terms, conditions or provisions of any agreement or
instrument to which the Issuer is now a party or by which
it is bound, or constitutes or will constitute a default
under any of the foregoing.
SECTION 2.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Texas and
is in good standing under the laws of the State of
Louisiana, is not in violation of any provision of its
Articles of Incorporation or its Bylaws, has power to enter
into this Agreement and to perform and observe the
agreements and covenants on its part contained herein,
including, without limitation, the power to issue the First
Mortgage Bonds as contemplated herein and in the Company
Mortgage, and has duly authorized the execution and
delivery of this Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, including,
without limitation, the issuance and delivery of the First
Mortgage Bonds, conflicts with or results in a breach of
the terms, conditions or provisions of any restriction or
any agreement or instrument to which the Company is now a
party or by which the Company is bound, or constitutes a
default under any of the foregoing, or results in the
creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the
Company except any interests created herein, under the
Indenture or under the Company Mortgage.
(c) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the legal,
valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws relating to
bankruptcy, moratorium, insolvency or reorganization and
similar laws affecting creditors' rights generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if
determined adversely to the Company or its interests, (1)
would materially adversely affect the consummation of the
transactions contemplated by this Agreement, (2) would
adversely affect the validity of this Agreement or (3)
could have a material adverse effect upon the financial
condition, assets, properties or operations of the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Agreement or which, with the lapse of
time or with the giving of notice or both, could reasonably
be expected to become an "Event of Default" hereunder or
thereunder.
(f) The Facilities are located within the jurisdiction
of the Issuer.
(g) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of "air or water pollution control and solid
waste disposal facilities" within the meaning of Section
103(b)(4)(E) and (F) of the Internal Revenue Code of 1954,
as amended. All of the proceeds of the Prior Bonds have
been expended.
(h) The weighted average maturity of the Bonds does
not exceed 120% of the remaining reasonably expected
economic life of the Facilities financed with the proceeds
of the Prior Bonds.
(i) The Securities and Exchange Commission has
approved all matters relating to the Company's
participation in the transactions contemplated by this
Agreement which require said approval, and no other
consent, approval, authorization or other order of any
regulatory body or administrative agency or other
governmental body is legally required for the Company's
participation therein, except such as may have been
obtained or may be required under the securities laws of
any state.
(j) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds.
(k) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(l) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box,
or health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(m) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant
to Section 149(e) of the Code, is accurate and complete as
of the date of the issuance of the Bonds.
(n) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(o) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment
under the applicable regulations pertaining to, or in any
other fashion as would constitute failure of compliance
with, Section 148 of the Code.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of [$ ]. Upon issuance and delivery thereof,
the proceeds of the Bonds shall be deposited with the Trustee in
the Refunding Fund (except for proceeds which represent accrued
interest, if any) in accordance with the Indenture. The Issuer
does not make any warranty, either express or implied, that the
proceeds of the Bonds will be sufficient to effectuate the
refunding of the principal of the Prior Bonds.
SECTION 3.2. Bond Redemption. The Issuer shall, at the
request of the Company, take all steps as may be necessary under
the Indenture to effect the redemption, as provided under the
Indenture, of any or all of the Bonds or portions thereof as may
be specified by the Company.
SECTION 3.3. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund and the Refunding Fund
shall be invested, reinvested or applied by the Trustee in
accordance with and subject to the conditions of Article VII of
the Indenture. The Company and the Issuer shall make no use of
the proceeds of the Bonds, or any funds which may be deemed to be
proceeds of the Bonds pursuant to Section 148 of the Code and the
applicable regulations thereunder, which would cause the Bonds to
be "arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS;
FIRST MORTGAGE BONDS
SECTION 4.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Agreement, deposit all of the
proceeds thereof with the Trustee for deposit into the Refunding
Fund (except for proceeds which represent accrued interest, if
any) in accordance with the Indenture for application as provided
in Article V hereof and the Indenture to refund on the Refunding
Date the outstanding principal amount of the Prior Bonds. The
Company shall provide such additional moneys as are required to
pay the interest and premium, if any, on the Prior Bonds on the
dates and in the manner as provided in the Prior Indenture in
order to cause the redemption of the Prior Bonds on the Refunding
Date. The Company shall pay out of its own money and not out of
proceeds of the Bonds all reasonable Costs of Issuance with
respect to the Bonds.
SECTION 4.2. Payments. (a) The Company shall pay to the
Trustee for the account of the Issuer on each date on which the
principal of, premium, if any, or interest on the Bonds comes
due, whether at the maturity thereof or upon acceleration,
redemption or otherwise in accordance with the provisions of the
Indenture, an amount equal to the sum of (i) all interest due and
payable on the Bonds on such date, (ii) the principal amount of
Bonds, if any, due and payable on such date, (iii) amounts, if
any, required to effect redemption of Bonds on such date pursuant
to the Indenture, together with accrued interest and any
applicable redemption premium, (iv) all amounts due on such date
to the Trustee or the Issuer under this Agreement, the Indenture
or any other agreements entered into in connection with the
issuance of the Bonds, and (v) any Administration Expenses. The
Company directs the Trustee to apply such amounts to the purpose
for which they are paid. Such payments shall be paid by check,
draft or other means acceptable to the Trustee directly to the
Trustee in funds immediately available to the Trustee on the
payment date, and shall be immediately deposited by the Trustee
in the Bond Fund. In any event, the Company agrees to make
payments to the Trustee for deposit in the Bond Fund at such
times and in such manner so as to enable the Trustee to make
payment of the principal of, premium, if any, and accrued
interest on the Bonds as the same shall become due and payable
whether by acceleration, redemption or otherwise in accordance
with the terms of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Company
hereunder shall be subject to the limitation that payments
constituting interest under this Section shall not be required to
the extent that the receipt of such payment by any owner of any
Bonds would be contrary to the provisions of law applicable to
such owner which limit the maximum rate of interest that may be
charged or collected by such owner.
(d) In addition to the options and obligations of the
Company under Article VIII hereof to accelerate payment of the
unpaid balance due hereunder, the Company shall have the option
to make from time to time partial prepayments of the amounts due
hereunder. The making of any prepayments by the Company shall
not require the Company to make any further prepayments. The
Issuer shall direct the Trustee to apply such prepayments in such
manner, consistent with the provisions of the Indenture, as may
be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION 4.3. First Mortgage Bonds. (a) Concurrently with
the issuance and delivery by the Issuer of the Bonds, and in
order to evidence the payment obligation of the Company under
Section 4.2 hereof, the Company shall issue and deliver to the
Issuer a series of First Mortgage Bonds (i) maturing on the
stated maturity date of the Bonds, (ii) in a principal amount
equal to the principal of the Bonds plus ______ months' (___/12)
of the annual interest on the Bonds, (iii) containing redemption
provisions correlative to any provisions of the Indenture
relating to the Bonds requiring mandatory redemption thereof,
(iv) requiring payments to be made to the Trustee for the account
of the Issuer, and (v) bearing no interest.
(b) The obligation of the Company to make any payment of
the principal of or premium, if any, on the First Mortgage Bonds,
whether at maturity, upon redemption or otherwise, shall be
reduced by the amount of any reduction under the Indenture of the
amount of the corresponding payment required to be made by the
Issuer thereunder in respect of the principal of or premium, if
any, or interest on the Bonds.
(c) The Issuer shall not sell, assign or transfer the First
Mortgage Bonds, except to the extent provided in Section 4.4
hereof. In view of the pledge and assignment referred to in said
Section 4.4, the Issuer agrees that (i) in satisfaction of the
obligations of the Company set forth in paragraph (b) of this
Section with respect to the Bonds, the First Mortgage Bonds shall
be issued and delivered to, registered in the name of, and held
by the Trustee for the benefit of the owners and holders from
time to time of the Bonds; (ii) the Indenture shall provide that
the Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under the Indenture, and
shall surrender First Mortgage Bonds to the Company Mortgage
Trustee in accordance with the provisions of subsection (e) of
this Section; and (iii) the Company may take such actions as it
shall deem to be desirable to effect compliance with such
restrictions on transfer, including the placing of an appropriate
legend on each First Mortgage Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustee or any
other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
5.9 of the Indenture shall be binding upon the Company.
(d) At the time any Bonds cease to be outstanding (other
than by reason of the payment or redemption of First Mortgage
Bonds and other than by reason of the applicability of clause (b)
in the definition of "outstanding" herein), the Issuer shall
cause the Trustee to surrender to the Company Mortgage Trustee a
corresponding principal amount of First Mortgage Bonds, plus, in
the case of the Bonds, a principal amount of such First Mortgage
Bonds equal to ______ months' (__/12) of the annual interest
payable in respect of such series.
(e) For the purpose of determining whether or not any
payment of the principal of or premium, if any, on the First
Mortgage Bonds shall have been made in full, any moneys paid by
the Company in respect of the First Mortgage Bonds which shall
have been withdrawn by the Trustee from the Bond Fund pursuant to
Section 10.2 of the Indenture shall be deemed to have been paid
by the Company to the Trustee pursuant to Section 4.5 hereof and
not to have been paid by the Company in respect of the First
Mortgage Bonds.
SECTION 4.4. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section 4.3 to
be made by the Company are pledged by the Issuer to the Trustee
pursuant to the Indenture, and that all rights and interest of
the Issuer hereunder (except for the Issuer's rights under
Sections 4.5, 4.6, 4.7 and 8.5 hereof and any rights of the
Issuer to receive notices, certificates, requests, requisitions,
directions and other communications hereunder), including the
right to receive the First Mortgage Bonds, and the First Mortgage
Bonds, are pledged and assigned to the Trustee. The Company
assents to such pledge and assignment and agrees that the
obligation of the Company to make payments under Section 4.3
shall be absolute, irrevocable and unconditional and shall not be
subject to cancellation, termination or abatement, or to any
defense other than payment or to any right of set-off,
counterclaim or recoupment arising out of any breach under this
Agreement, the Indenture or otherwise by the Issuer or the
Trustee or any other party, or out of any obligation or liability
at any time owing to the Company by the Issuer, the Trustee or
any other party, and, further, that the payments under Section
4.3 and the other payments due hereunder shall continue to be
payable at the times and in the amounts specified herein and in
the First Mortgage Bonds, whether or not the Facilities, or any
portion thereof, shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain and whether
or not any exercise of rights by the Co-Owner under the Joint
Ownership Agreement, or the Company Mortgage Trustee, the holders
of bonds and others under the Company Mortgage, prevent or
prohibit the use of the Facilities, and that there shall be no
abatement of or diminution in any such payments by reason
thereof, whether or not the Facilities shall be used or useful,
and whether or not any applicable laws, regulations or standards
shall prevent or prohibit the use of the Facilities, or for any
other reason. During the term hereof, the Company (i) shall not
suspend or discontinue the making of payments for which it is
obligated hereunder, (ii) shall, except to the extent provided in
Section 8.2 hereof, perform and observe all of its other
obligations contained herein and (iii) except as explicitly
permitted herein, shall not terminate this Agreement for any
cause including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute failure
of consideration, commercial frustration of purpose, any change
in tax or other laws by the United States of America or the State
of Louisiana or any political subdivision of either, or any
failure of the Issuer to perform and observe any obligation or
condition arising out of or connected with this Agreement. This
provision shall not be construed to release the Issuer from the
performance of any of its obligations under this Agreement; and
in the event the Issuer shall fail to perform any such
obligation, the Company may institute such action against the
Issuer as the Company may deem necessary to compel performance;
provided, however, that no such action shall claim or attempt to
establish or work a reduction of payments payable by the Company
hereunder. The Company may at its own cost and expense and in
its own name or in the name of the Issuer, prosecute or defend
any action or proceedings or take any other action involving
third persons which the Company deems reasonably necessary in
order to secure or protect its rights under this Agreement, and
in such event the Issuer shall cooperate fully with the Company.
SECTION 4.5. Payment of Expenses. The Company shall pay
or cause to be paid all Administration Expenses, including those
of the Issuer, the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture, such payments to be
made directly to such entities.
SECTION 4.6. Indemnification. The Company releases the
Issuer and the Trustee from, agrees that the Issuer and the
Trustee shall not be liable for, and agrees to indemnify and hold
the Issuer and the Trustee free and harmless from, any liability
for any loss or damage to property or any injury to or death of
any person that may be occasioned by any cause whatsoever
pertaining to the Facilities, including, without limitation, the
financing or refinancing of the Facilities and the Prior Bonds or
Bonds issued with respect thereto, except in any case as a result
of the negligence or bad faith of the Issuer or the Trustee.
The Company will indemnify and hold the Issuer and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Agreement, the issuance or sale of the Prior Bonds or the Bonds,
actions taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence or bad faith of
the Trustee, or as a result of the gross negligence or bad faith
of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
SECTION 4.7. Payment of Taxes; Discharge of Liens. The
Company agrees that it will pay, as the same become due, all
taxes and governmental charges of any kind whatsoever that may at
any time be lawfully assessed or levied against the Company or
the Issuer with respect to the Facilities or any portion thereof
or with respect to the Prior Bonds, including, without limiting
the generality of the foregoing, any taxes lawfully levied
against the Company or the Issuer upon or with respect to the
income or profits of the Issuer from the Facilities or any charge
on the payments made pursuant to Section 4.3 hereof prior to or
on a parity with the charge under the Indenture thereon and the
pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.3 hereof; provided, however, that nothing herein
shall require the payment of any such tax or charge or make
provision for the payment thereof, so long as the validity
thereof shall be contested in good faith by the Company by
appropriate legal proceedings; further provided, that with
respect to special assessments or other governmental charges that
may lawfully be paid in installments over a period of years, the
Company shall be obligated to pay only such installments as are
required to be paid during the term of this Agreement.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds (exclusive of accrued interest, if any, received
with respect to the Bonds) on the date of issuance thereof to the
trustee under the Prior Indenture for disbursement and investment
in accordance with the Prior Indenture in order to redeem the
Prior Bonds on the Refunding Date.
SECTION 5.2. Compliance with Prior Indenture. The Issuer
shall take all steps as may be necessary to effect the redemption
of the Prior Bonds on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this Section
consolidate with or merge into another domestic corporation
(i.e., a corporation incorporated and existing under the laws of
one of the states of the United States of America or under the
laws of the United States of America) or permit one or more such
domestic corporations to consolidate with or merge into it, or
sell or otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and thereafter
dissolve; provided, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, assumes in writing all of the obligations of the Company
herein, including all obligations of the Company under the First
Mortgage Bonds. No such consolidation, merger or sale or
transfer of assets may take place unless the corporation
resulting from or surviving such merger or consolidation or the
corporation to which such sale or transfer is made has an excess
of assets over liabilities at least as great as the Company would
have had if such merger or consolidation had not occurred or such
sale or transfer had not been made.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION 6.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Agreement as provided in
the Indenture (including all sums deposited in the Bond Fund from
time to time pursuant to this Agreement and the Indenture, and in
certain events, amounts obtained through the exercise of certain
remedies provided in the Indenture). The Bonds shall never be
general obligations of the Issuer nor constitute an indebtedness
or pledge of the general credit of the Issuer within the meaning
of any constitutional or statutory provision or limitation of
indebtedness, and shall never be paid in whole or in part out of
any funds raised or to be raised by taxation of any other funds
of the Issuer.
SECTION 6.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain the exclusion of the interest on the Bonds from gross
income for federal income tax purposes under federal tax law
existing on the date of delivery of the Bonds. In furtherance of
the foregoing, the Company also agrees on behalf of the Issuer to
comply with all rebate requirements and procedures as may become
applicable to the Bonds under the Code.
SECTION 6.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts, if any,
as required by the Company Mortgage, including without
limitation, fire and extended coverage risks and personal and
property liability coverage (including property and comprehensive
general liability insurance) in such amounts and covering such
risks as are customarily insured against by businesses of like
size and type with respect to facilities similar in nature to the
Facilities. Any provisions of this Agreement to the contrary
notwithstanding, the Company shall be entitled to the proceeds of
any insurance or condemnation award or portion thereof with
respect to the Facilities and such shall be paid directly to the
Company.
SECTION 6.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Agreement or the ability of
the Company to discharge such obligations.
SECTION 6.6. Compliance with Law. The Company shall,
throughout the term of this Agreement and at no expense to the
Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Agreement or the ability of
the Company to discharge such obligations. Notwithstanding the
foregoing, the Company shall have the right to contest the
legality of any such law, ordinance, order, rule, regulation or
requirement as applied to the Facilities provided that in the
opinion of counsel to the Company such contest shall not in any
way materially adversely affect or impair the obligations of the
Company under this Agreement or the ability of the Company to
discharge such obligations.
SECTION 6.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Agreement, as to the condition of the Facilities or as to the
suitability thereof for the Company's purposes or needs or as to
compliance of the Facilities with applicable laws and regulations
or the ability of the Company to discharge the Bonds. The
Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Issuer. Except as provided in Article
IV of this Agreement, the Issuer will not sell, lease, assign,
transfer, convey or otherwise dispose of its interest in the
Facilities or any portion thereof or interest therein or in the
revenues therefrom without the written consent of the Company,
nor will it create or suffer to be created any debt, lien or
charge thereon, not consented to by the Company, except Permitted
Encumbrances.
SECTION 7.2. By the Company. The Company's interest in
this Agreement may be assigned in whole or in part, and the
Facilities may be leased or sold as a whole or in part (whether a
specific element or unit or an undivided interest), by the
Company, subject, however, to the condition that no assignment,
lease or sale (other than as described in Section 6.1 hereof)
shall relieve the Company from primary liability for its
obligations under Sections 4.2 and 4.3 hereof (including its
obligations on the First Mortgage Bonds) to pay the payments
required thereunder, or for any other of its obligations
hereunder, other than those obligations relating to the
operation, maintenance and insurance of the Facilities, which
obligations (to the extent of the interest assigned, leased or
sold and to the extent assumed by the assignee, lessee or
purchaser) shall be deemed to be satisfied and discharged.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default. Each of the following
events shall constitute and is referred to in this Agreement as
an "Event of Default":
(a) a "Default" as such term is defined in the Company
Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 9.1 of the Indenture; or
(c) a failure by the Company to pay when due any other
amount required to be paid under this Agreement or to
observe and perform any covenant, condition or agreement on
its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the
Issuer or the Trustee, unless the Issuer and the Trustee
shall agree in writing to an extension of such period prior
to its expiration; provided, however, that the Issuer and
the Trustee shall be deemed to have agreed to an extension
of such period if corrective action is initiated by the
Company within such period and is being diligently pursued.
SECTION 8.2. Force Majeure. The provisions of Section 8.1
hereof are subject to the following limitations: If by reason of
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or other acts of any kind of the
government of the United States or of the States of Louisiana or
Texas, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2 hereof and its obligations under Sections 4.7,
6.1, 6.8 and 9.1 hereof, the Company shall not be deemed in
default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during
the continuance of such inability. The Company agrees, however,
to use its best efforts to remedy with all reasonable dispatch
the cause or causes preventing it from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required
to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or
parties when such course is, in the judgment of the Company,
unfavorable to the Company.
SECTION 8.3. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
clause (a) of Section 8.1 hereof, the Trustee, as the holder of
the First Mortgage Bonds, shall, subject to the provisions of the
Indenture, have the rights provided in the Company Mortgage.
(b) Upon the occurrence and continuance of any Event of
Default described in clause (b) of Section 8.1 hereof, and
further upon the condition that, in accordance with the terms of
the Indenture, the Bonds shall have become immediately due and
payable pursuant to any provision of the Indenture, the payments
required to be paid pursuant to Section 4.2 hereof shall, without
further action, become and be immediately due and payable.
(c) Upon the occurrence and continuance of any Event of
Default, the Issuer with the prior consent of the Trustee, or the
Trustee, may take any action at law or in equity to collect the
payments then due and thereafter to become due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
(d) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(e) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.4. No Remedy Exclusive. No remedy conferred
upon or reserved to the Issuer by this Agreement is intended to
be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or now
or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon
any event of default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Issuer or the Trustee
to exercise any remedy reserved to it in this Article, it shall
not be necessary to give any notice, other than such notice as
may be herein expressly required, or as may be required by
applicable law.
SECTION 8.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Agreement, and the Issuer shall employ
attorneys or incur other expenses for the collection of sums due
and payable under this Agreement or on the First Mortgage Bonds,
or for the enforcement of performance or observance of any
obligation or agreement on the part of the Company contained in
this Agreement, the Company agrees that it will on demand
therefor reimburse the reasonable fees of such attorneys and such
other reasonable expenses so incurred.
SECTION 8.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
Issuer's rights in and under this Agreement to the Trustee under
the Indenture, the Issuer shall have no power to waive any
default hereunder by the Company without the consent of the
Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences, and
any waiver of any "Default" under the Company Mortgage and a
rescission and annulment of its consequences, shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts, series and maturities of the Bonds to be
redeemed, or for the payment or redemption of which provision is
to be made, and, in the case of redemption of Bonds, or provision
therefor, specifying the date of redemption, which shall not be
less than forty-five (45) days (or such other period as may
reasonably be agreed upon by the Trustee and the Issuer with the
consent of the Company) from the date such notice is given, and
the applicable redemption provision of the Indenture. Unless
otherwise stated therein or otherwise required by the Indenture,
such notice shall be revocable by the Company at any time prior
to the time at which the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, are first deemed
to be paid in accordance with Article IX of the Indenture. The
Company shall furnish, as a prepayment of the sums due hereunder,
any moneys or Government Securities required by the Indenture to
be deposited with the Trustee or otherwise paid by the Issuer in
connection with any of the foregoing purposes.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Term of the Agreement. This Agreement shall
be in full force and effect from the date hereof until the right,
title and interest of the Trustee in and to the Trust Estate (as
defined in the Indenture) shall have ceased, terminated and
become void in accordance with Article IX of the Indenture and
until all payments required under this Agreement shall have been
made.
SECTION 10.2. Notices. Except as otherwise provided in
this Agreement, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company or the Trustee. Copies of each notice, certificate
or other communication given hereunder by or to the Company shall
be mailed by registered or certified mail, postage prepaid, to
the Trustee; provided, however, that the effectiveness of any
such notice shall not be affected by the failure to send any such
copies. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Gulf States Utilities Company
c/o Entergy Services, Inc.
Poydras Plaza, 639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Parish of West Feliciana
The Police Jury House
9795 Royal Street
St. Francisville, LA 70775
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 10.3. Successors. This Agreement shall inure to
the benefit of the Issuer, the governing authority of the Issuer,
its members, officers or employees, the Company, the Trustee and
the holders from time to time of the Bonds, and shall be binding
upon the Issuer, the Company and their respective successors and
assigns.
SECTION 10.4. Amendments to Refunding Agreement. Subject
to the rights of the Company Mortgage Trustee, any holders of
bonds and others under the Company Mortgage, subsequent to the
initial issuance of the Bonds and prior to payment or provision
for the payment of the Bonds in full including interest and
premium, if any, thereon in accordance with the provisions of the
Indenture, and prior to payment or provision for the payment of
expenses pursuant to Section 4.5 hereof, this Agreement may not
be effectively amended, changed, modified, altered or terminated
without the prior written consent of the Trustee given in
accordance with the provisions of the Indenture and no amendment
to this Agreement shall be binding upon either party hereto until
such amendment is reduced to writing and executed by both parties
hereto.
SECTION 10.5. Counterparts. This Agreement may be executed
in any number of counterparts, each of which, when so executed
and delivered, shall be an original; but such counterparts shall
together constitute but one and the same Agreement.
SECTION 10.6. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 5.4 of the Indenture.
SECTION 10.7. Photocopies and Reproductions. A photocopy
or other reproduction of this Agreement may be filed as a
financing statement pursuant to the Louisiana Commercial Laws -
Secured Transactions, although the signatures of the Company and
the Issuer on such reproduction are not original manual
signatures.
SECTION 10.8. Severability. If any clause, provision or
section of this Agreement shall be held illegal or invalid by any
court, the invalidity of such clause, provision or section shall
not affect any of the remaining clauses, provisions or sections
hereof and this Agreement shall be construed and enforced as if
such illegal or invalid clause, provision or section had not been
contained herein. In case any agreement or obligation contained
in this Agreement shall be held to be in violation of law, then
such agreement or obligation shall be deemed to be the agreement
or obligation of the Issuer or the Company, as the case may be,
to the full extent permitted by law.
SECTION 10.9. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Agreement.
SECTION 10.10. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall be a legal
holiday or a day on which banking institutions in the city in
which is located the principal corporate trust office of the
Trustee are authorized by law to remain closed, such payment may
be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest on the amount so payable shall
accrue for the period after such nominal date.
SECTION 10.11. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Agreement as herein provided, after payment in full of
the Bonds (or provision therefor) in accordance with the
Indenture, and all other costs and expenses to be paid by the
Company hereunder, all Administration Expenses and all amounts
owing the Issuer and the Trustee under this Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION 10.12. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Agreement, acknowledges and agrees
that it has participated in the drafting of the Indenture and
agrees that it has approved the Indenture and agrees that it is
bound by and shall have the rights set forth by the terms and
conditions thereof and covenants and agrees to perform all
obligations required of the Company pursuant to the terms of the
Indenture.
SECTION 10.13. Binding Effect. This Agreement shall be
binding upon the parties hereto and upon their respective
successors and assigns, and the words "Issuer" and "Company"
shall include the parties hereto and their respective successors
and assigns and include any gender, singular and plural, and
individuals, partnerships or corporations.
SECTION 10.14. Captions and Headings. The captions or
headings in this Agreement are for convenience only and in no way
define, limit or describe the scope or intent of any provisions
of this Agreement.
SECTION 10.15. No Personal Liability. No covenant or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any official, officer, agent, or
employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION 10.16. Parties in Interest. This Agreement shall
inure to the benefit of and shall be binding upon the Issuer, the
Company and their respective successors and assigns, and no other
person, firm or corporation shall have any right, remedy or claim
under or by reason of this Agreement; provided, however, that any
monetary obligation of the Issuer created by or arising out of
this Agreement shall be payable solely out of the revenues
derived from this Agreement or the sale of the Bonds or income
earned on invested funds as provided in the Indenture and shall
not constitute, and no breach of this Agreement by the Issuer
shall impose, a pecuniary liability upon the Issuer or a charge
upon the Issuer's general credit or against its taxing powers.
SECTION 10.17. Subordination to Company Mortgage; Waiver of
Lien and to Joint Ownership Agreement. Nothing in this Agreement
or the Indenture shall in any way prejudice (i) the Company
Mortgage, the lien thereof, or any of the rights of the Company
Mortgage Trustee, of any holder of First Mortgage Bonds
heretofore or hereafter issued thereunder, or any takers or
purchasers upon default thereunder or (ii) the Joint Ownership
Agreement or any of the rights of the parties thereunder.
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By:_________________________________
President, Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary, Police Jury
GULF STATES UTILITIES COMPANY
By: _________________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
7
Exhibit B-5
____________, 1996
To prospective purchasers
of the Debentures of
Gulf States Utilities Company
Gentlemen:
Gulf States Utilities Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $ aggregate principal
amount of its unsecured Debentures ("Debentures"). The
Company will receive proposals for the purchase of all or
such portion of the Debentures as may be designated by the
Company to prospective purchasers.
Enclosed please find copies of a prospectus dated
__________________ relating to the Debentures, a
questionnaire to be used in furnishing certain information
to the Company and an Underwriting Agreement for use in
submitting a proposal. You may obtain copies of the
registration statement relating to the Debentures and of the
documents incorporated by reference in the prospectus by
contacting
____________________________________________________________
___________.
The Company will give notice ("Notice") to two or more of
the following prospective purchasers: Morgan Stanley & Co.
Incorporated, Merrill Lynch & Co., Salomon Brothers Inc.,
The First Boston Corporation, Smith Barney, Harris Upham &
Co. Incorporated, Stephens Inc., Bear, Stearns & Co., Inc.,
UBS Securities Inc., Prudential Securities, Inc., Morgan
Keegan & Co., Inc., Shearson Lehman Brothers, Inc., J. P.
Morgan Securities Inc., Goldman, Sachs & Co., A. G. Edwards
& Sons, Inc., Chase Securities Inc. and J. C. Bradford & Co.
at least two (2) hours prior to the time proposals are to be
submitted of (i) the principal amount of the Debentures
being offered, (ii) the date on which such Debentures will
be issued, (iii) the maturity date of such Debentures, (iv)
the date from which interest will accrue, (v) the range
within which the price offered to the Company by the
prospective purchasers of the Debentures would be
acceptable, (vi) whether the Company will provide, or will
permit prospective purchasers to provide, an insurance
policy for the payment of the principal of and/or interest
on the Debentures being offered and, if such an insurance
policy will be provided by the Company, the terms thereof,
(vii) the date, time and location for the submission of
proposals, (viii) the manner in which proposals are to be
submitted, (ix) whether the redemption provisions described
in Appendix A hereto will be applicable to the Debentures
being offered and the terms of any other redemption
provisions that may be applicable and (x) whether the
dividend covenant described in Appendix A hereto will be
applicable to the Debentures being offered. The Company
will also make available to prospective purchasers, prior to
the time proposals are to be submitted, a description of the
procedures that will be used by the Company to determine the
winning proposal. Various basic terms relating to the
Debentures are set forth in Appendix A hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-
1000), is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Debentures under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
GULF STATES UTILITIES COMPANY
By:
_______________________________
__
William J. Regan, Jr.
Vice President and Treasurer
APPENDIX A
GULF STATES UTILITIES COMPANY
Summary of Terms
Relating to the Purchase of Debentures of a Particular
Series
Principal Amount To be designated by the Company in the
Notice.
Date of Issuance To be designated by the Company in the
Notice.
Date of Maturity To be designated by the Company in the
Notice.
Date from which
Interest will To be designated by the Company in the
Accrue Notice.
Interest Rate The annual interest rate shall be as set
forth in the Underwriting Agreement
submitted by the successful underwriter
or underwriters and shall be a multiple
of 0.125% (1/8th of 1%).
Insurance If the Company determines to provide, or
to permit prospective purchasers to
provide, an insurance policy for the
payment of the principal of and/or
interest on one or more series of the
Debentures, the Company will so state in
the Notice. If such an insurance policy
is to be provided by the Company, the
terms thereof will be described in the
Notice.
Sinking Fund See the accompanying prospectus relating
to the Debentures.
Dividend Covenant, if If specified in the Notice, the Company
any will covenant in substance that, so long
as any Debentures of the particular
series being offered remain outstanding,
it will not pay any cash dividends on
common stock after a selected date close
to the date of the original issuance of
such series of Debentures (other than
certain dividends that may be declared by
the Company prior to the original
issuance of such series of Debentures)
except from credits to earned surplus
after such selected date plus an amount
of up to $345 million and plus such
additional amounts as shall be approved
by the Securities and Exchange
Commission.
Price to Company The price shall be as set forth in the
Underwriting Agreement submitted by the
successful purchaser or purchasers and
shall be within a range of not more than
five percentage points (as designated by
the Company in the Notice), which range
shall be within 95% and 105% of the
principal amount, plus accrued interest
at the rate set forth in such
Underwriting Agreement.
Redemption Provisions Unless otherwise stated in the Notice,
the following redemption provisions shall
be applicable: For the purpose of
determining the redemption prices of the
Debentures: (a) the term "annual
redemption period" shall mean the twelve
month period beginning (1) on the first
day of the calendar month in which the
Debentures are issued in each calendar
year, beginning with the calendar year in
which the Debentures are issued, and
ending on the last day of the preceding
calendar month of the next succeeding
calendar year; except that, if the
Debentures are issued in the month of
January, and bear interest from the first
day of January, then ending on the last
day of December in the same calendar
year, or (2) if the Debentures bear
interest from the 15th day of the month
in which the Debentures are issued, then
beginning on the 15th day of said month,
and ending on the 14th day of the same
calendar month of the next succeeding
calendar year; (b) the term "stated
interest rate" shall mean the stated
interest rate per annum to be set forth
in the Debentures (stated as a percentage
of the principal amount thereof), as
specified in the successful proposal; (c)
the term "initial public offering price"
shall mean the single fixed price (stated
as a percentage of the principal amount
of the Debentures and exclusive of
accrued interest) at which the Debentures
are to be initially offered for sale to
the public by the successful purchaser or
purchasers, as specified by them at the
time of the acceptance of the successful
proposal and as set forth in the
supplement to the Prospectus relating to
the Debentures to be filed with the
Securities and Exchange Commission
following the acceptance of the
successful proposal; provided, however,
that if the successful purchaser or
purchasers shall specify at the time of
the acceptance of the successful proposal
that they do not intend to make a public
offering of the Debentures at a single
fixed price, the term "initial public
offering price" shall mean the price
(stated as a percentage of the principal
amount of the Debentures and exclusive of
accrued interest) to be paid by the
successful purchaser or purchasers to the
Company for the Debentures; (d) the term
"initial unadjusted premium" shall mean
the amount (stated as a percentage of the
principal amount of the Debentures and
before the adjustment provided for below)
by which the initial public offering
price plus the stated interest rate shall
exceed 100% of the principal amount of
the Debentures; (e) the term "applicable
fraction" shall mean a fraction, the
numerator of which shall be one and the
denominator of which shall be the lesser
of (i) 24 or (ii) two less than the
number of years from the date of the
Debentures to their stated maturity;
provided, however, that the denominator
shall never be less than four; and (f)
the term "date of issue" shall mean the
day of the calendar month in which the
Debentures are issued from which interest
accrues.
The general redemption prices of the
Debentures shall be, for and during the
first annual redemption period, 100% of
their principal amount plus the initial
unadjusted premium: for and during each
annual redemption period thereafter until
the annual redemption period for which
the general redemption price shall be
reduced to 100% of their principal amount
without premium, 100% of their principal
amount plus a premium equal to the
initial unadjusted premium, less an
amount equal to the applicable fraction
of the initial unadjusted premium
multiplied by the number of annual
redemption periods which shall have
passed between the date of issue and the
date fixed for redemption; and for and
during each annual redemption period
thereafter, 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption; provided,
however, that the general redemption
prices shall never be less than the
special redemption prices. The Company
may determine to limit for a period of
years set forth in the Notice its ability
to redeem the Debentures under
circumstances where general redemption
prices would be applicable, if such
redemption is for the purpose or in
anticipation of refunding such Debentures
through the use, directly or indirectly,
of funds borrowed by the Company at an
effective interest cost to the Company
(computed in accordance with generally
accepted financial practice) of less than
the "effective interest cost" (stated as
a multiple of 0.0001% (1/10,000th of 1%),
of the Debentures. The "effective cost"
will be the yield based on the date of
maturity of the Debentures, the interest
rate to be borne thereby and the price to
the Company (exclusive of accrued
interest) for the Debentures.
For the purpose of determining the
special redemption price applicable for
and during any annual redemption period
of the
Debentures which are to be reoffered at a
single fixed price, the stated interest
rate to be borne by such Debentures, a
term equal to the number of years from
the beginning of each such redemption
period to the stated maturity, and the
basic yield of such Debentures shall be
used. The term "basic yield" for such
purpose shall mean the percentage yield,
computed to at least eight decimal places
and calculated on the basis of (a) the
initial public offering price, (b) the
stated interest rate and (c) the date of
maturity of such Debentures. The special
redemption price of such Debentures
applicable for and during any annual
redemption period shall be such price as
will produce a yield equal to the basic
yield, except that for and during any
annual redemption period for which the
general redemption price of such
Debentures shall be 100% of their
principal amount without premium, the
special redemption price shall be 100% of
their principal amount without premium,
and except that, if the initial public
offering price is 100% of the principal
amount of such Debentures or less, the
special redemption price of such
Debentures during each annual redemption
period shall be 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption. The special
redemption price applicable for and
during any annual redemption period of
such Debentures which are not reoffered
at a single fixed price shall be 100% of
their principal amount without premium,
together with accrued interest to the
date fixed for redemption.
If, in any case, other than the initial
general and special redemption prices, a
redemption price computed as hereinabove
set forth shall not be a multiple of
0.01% (1/100 of 1%) and if the remainder
of dividing such price by .01% is greater
than .5, the price shall be rounded up to
the next higher multiplier of .01%;
otherwise it shall be rounded down to the
next lower multiple of .01%.
If the foregoing redemption provisions
shall not be applicable, the Company will
specify in the Notice the applicable
redemption provisions, which could
include, for example, an absolute
prohibition on redemption for a period of
years or for the life of the Debentures.
Registration No. 33-__________
Statements
Miscellaneous For further information regarding the
terms of the Debentures, please refer to
the accompanying Prospectus relating to
the Debentures.
The Underwriting Agreement submitted by
the successful purchaser or purchasers
shall, upon acceptance by the Company,
become effective as and constitute the
agreement between the Company and such
purchaser or purchasers covering the sale
and purchase of the Debentures.
Exhibit B-11
T r u s t I n d e n t u r e
between
Parish of West Feliciana,
State of Louisiana
and
First National Bank of Commerce
Dated as of [ ]
[$ ]
Parish of St. West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series [ ]
<PAGE>
Trust Indenture
This Trust Indenture dated as of September 1, 1994 by and
between the Parish of West Feliciana, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and First National Bank of Commerce, a national banking
association, incorporated and existing under the laws of the
United States of America with its principal office and domicile
located in New Orleans, Louisiana (in its capacity herein,
together with any successors in such capacity, called the
"Trustee"),
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the Constitution
and laws of such State and is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (La. R.S.
39:1444-1456) (the "Act"), to issue refunding bonds for the
purpose of refunding, readjusting, restructuring, refinancing,
extending, or unifying the whole or any part of outstanding
securities of the Issuer in an amount sufficient to provide funds
necessary to effectuate the purpose for which the refunding bonds
are being issued and to pay all costs associated therewith; and
WHEREAS, pursuant to the provisions of Sections 991 to 1001,
inclusive, of Title 39 of the Louisiana Revised Statutes of 1950,
as amended and an Indenture of Trust and Pledge dated [
], by and between the Issuer and [
], as trustee (collectively, the "Prior Indenture"), the Issuer
issued its Pollution Control Revenue Bonds (Gulf States Utilities
Company Project) Series [ ] (the
"Prior Bonds") in the aggregate principal amount of [$ ] for
the purpose of providing funds to finance the cost of acquiring a
leasehold interest in the undivided seventy percent interest in
certain water pollution control and sewage disposal facilities at
the River Bend Unit 1 nuclear power plant in the Parish of West
Feliciana, Louisiana, owned by Gulf States Utilities Company, a
Texas corporation (the "Company"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to a Refunding
Agreement dated as of [ ], between the Issuer and the
Company (the "Refunding Agreement"), said refunding bonds to be
paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to the Refunding Agreement and
any moneys held thereunder, and said refunding bonds never to
constitute an indebtedness or pledge of the general credit of the
Issuer or the State of Louisiana, within the meaning of any
constitutional or statutory limitation of indebtedness or
otherwise; and
WHEREAS, the execution and delivery of this Trust Indenture
and the issuance of said refunding bonds under this Trust
Indenture pursuant to the aforesaid statutory authority have been
in all respects duly and validly authorized by resolution adopted
by the governing authority of the Issuer; and
WHEREAS, the Issuer has authorized the issuance hereunder of
said refunding bonds, namely [$ ] aggregate principal
amount of its Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series [ ] (the "Bonds"), the
proceeds of which are to be used to refund the principal of the
Prior Bonds; and
WHEREAS, the Bonds bear interest, mature and are subject to
redemption as set forth in this Trust Indenture; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the Issuer according to the import thereof, and to constitute
this Trust Indenture a valid assignment and pledge of revenues to
the payment of the principal of and premium, if any, and interest
on the Bonds, in accordance with the provisions hereof, have or
will have been done and performed, and the creation, execution
and delivery of this Trust Indenture and the creation, execution
and issuance of the Bonds, subject to the terms hereof, have in
all respects been duly authorized;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the Bonds by the holders and owners
thereof, and the sum of One Dollar ($1.00), lawful money of the
United States of America, to it duly paid by the Trustee, at or
before the execution and delivery of these presents, and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the Issuer of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the Issuer
hereinafter set forth:
I
All the rights and interest of the Issuer in and to the
Refunding Agreement (except for the rights of the Issuer under
Sections 4.5, 4.6, 4.7 and 8.5 of the Refunding Agreement and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the
Refunding Agreement), including, without limitation, its right to
receive the First Mortgage Bonds (as hereinafter defined); all
Revenues (as hereinafter defined) and the proceeds of all
thereof; and the First Mortgage Bonds issued and delivered by the
Company pursuant to the Refunding Agreement.
II
All the rights and interest of the Issuer in and to the Bond
Fund (as hereinafter defined), and all moneys and investments
therein, but subject to the provisions of this Trust Indenture
pertaining thereto, including those pertaining to the making of
disbursements therefrom.
III
All moneys, securities and obligations from time to time
held by the Trustee under the terms of this Trust Indenture and
any and all real and personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its
behalf or with its written consent to the Trustee, which is
hereby authorized to receive any and all such property at any and
all times and to hold and apply the same subject to the terms
hereof; except for moneys, securities or obligations deposited
with or paid to the Trustee for redemption or payment of Bonds
which are deemed to have been paid in accordance with Article IX
hereof and funds held pursuant to Section 6.5 hereof, which shall
be held by the Trustee in accordance with the provisions of said
Article IX or Section 6.5, as the case may be.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trusts and to
them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to the
lien of any Bonds over any other Bonds, except insofar as any
sinking, amortization or other fund, or any terms or conditions
of redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds.
PROVIDED, HOWEVER, that if the Issuer shall pay or cause to
be paid to the owners of the Bonds the principal of and premium,
if any, and interest to become due thereon at the times and in
the manner stipulated therein, and if the Issuer shall keep,
perform and observe all and singular the covenants and promises
in the Bonds and in this Trust Indenture expressed as to be kept,
performed and observed by it, all as provided in and subject to
the provisions of Article IX hereof, then and in that case these
presents and the estate and rights hereby granted, except as
otherwise provided in Article IX, shall cease, terminate and be
void, and thereupon the Trustee shall cancel and discharge the
lien of this Trust Indenture and execute and deliver to the
Issuer such instruments in writing as shall be requisite to
evidence the discharge hereof pursuant to the provisions of said
Article IX; otherwise this Trust Indenture to be and remain in
full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and the Trust Estate (as
hereinafter defined) and the other estate and rights hereby
granted, are to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the Issuer has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words
and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the
following meanings:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to the Refunding
Agreement, this Indenture and any transaction or event
contemplated by the Refunding Agreement or this Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture.
"Authorized Company Representative" means the person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the Issuer and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Vice President, or its Treasurer.
"Bond Counsel" means any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" means the fund by that name created and
established in Section 6.1 of this Indenture.
"Bond Registrar" means the registrar of Bonds named herein.
"Bonds" means the [$ ] aggregate principal amount
of Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] authorized to be issued
under this Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926, made to The Chase National Bank in
the City of New York, as trustee, as heretofore and hereafter
amended and supplemented.
"Company Mortgage Trustee" means the trustee under the
Company Mortgage.
"Event of Default" means any event of default specified in
Section 10.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities at the Company's River Bend Unit 1 nuclear power plant
in the Parish of West Feliciana, Louisiana, financed with the
proceeds of the Prior Bonds.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 of the Refunding Agreement.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form on the books of the
Department of Treasury of the United States of America), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"holder" or "bondholder" or "owner of the Bonds" or
"Bondholder" means the registered owner of any Bond.
"Indenture" means this Trust Indenture and all amendments
and supplements hereto.
"Issuer" means the Parish of West Feliciana, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"outstanding", when used with reference to the Bonds, means,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to this Indenture; and
(d) Bonds registered in the name of the Issuer.
"Paying Agent" means any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Bonds, the Trustee is the original Paying
Agent.
"person" means natural persons, firms, associations,
corporations and public bodies.
"Plant" means the Company's River Bend Unit 1 nuclear power
plant located in the Parish of West Feliciana, Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (Gulf States Utilities Company Project) Series [
] issued and outstanding in the aggregate principal amount of [$
].
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of May 1, 1984 between the Issuer and the Prior Trustee.
"Prior Trustee" means City National Bank of Baton Rouge, in
the City of Baton Rouge, Louisiana, and its successors and
assigns.
"Record Date" means the fifteenth day of the calendar month
next preceding any interest payment date.
"Refunding Agreement" means the Refunding Agreement dated as
of September 1, 1994 between the Issuer and the Company, and any
amendments and supplements thereto.
"Refunding Fund" means the fund established pursuant to
Section 3.1 hereof.
"Revenues" means all moneys paid or payable by the Company
to the Trustee for the account of the Issuer in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Section 4.2 of the Refunding
Agreement as the payments, and all receipts of the Trustee
credited under the provisions of this Indenture against such
payments.
"Trustee" means the banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is First National Bank of
Commerce, in the City of New Orleans, Louisiana.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
SECTION 1.2. Use of Words. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond", "owner", "holder" and
"person" shall include the plural, as well as the singular,
number.
ARTICLE II
THE BONDS
SECTION 2.1. Authorized Form and Amount of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with this Article. All Bonds issued hereunder
shall be in the form of registered bonds without coupons. The
total principal amount of Bonds that may be issued is hereby
expressly limited to [$ ], except as provided in Section
2.8 hereof.
SECTION 2.2. Details of Bonds. The Bonds (i) shall
be designated "Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series [ ]", (ii) shall be in the
aggregate principal amount of [$ ], (iii) shall be
issued in denominations of $5,000 and any integral multiple
thereof, (iv) shall be numbered consecutively from R-1 upwards in
order of issuance according to the records of the Trustee, (v)
shall be dated as hereinafter provided, (vi) shall bear interest
as hereinafter provided, payable semiannually on _________ and
_________ of each year, commencing ________, 1995, and (vii)
shall mature on ________________.
The Bonds shall bear interest from and including the date
thereof until the principal thereof shall have become due and
payable in accordance with the provisions hereof, whether at
maturity, upon redemption or otherwise, at the rate of _______%
per annum.
Bonds issued before _________, 1994 shall be dated
_________, 1994, and Bonds issued on or subsequent to _________,
1994 shall be dated as of the interest payment date next
preceding the date of authentication and delivery thereof by the
Trustee, unless such date of authentication and delivery shall be
an interest payment date, in which case they shall be dated as of
such date of authentication and delivery; provided, however, that
if, as shown by the records of the Trustee, interest on any Bonds
surrendered for transfer or exchange shall be in default, the
Bonds issued in exchange for Bonds surrendered for transfer or
exchange shall be dated as of the date to which interest has been
paid in full on the Bonds surrendered.
The Bonds shall be substantially in the form set forth in
Exhibit A attached hereto with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture.
SECTION 2.3. Payment. The principal of and premium,
if any, on the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office
of the Trustee. The interest on the Bonds shall be payable by
check drawn upon the Trustee and mailed to the registered owners
as of the close of business on the Record Date with respect to
the interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
SECTION 2.4. Execution. The Bonds shall be executed
on behalf of the Issuer by the President and the Secretary of the
governing authority of the Issuer (by their manual or facsimile
signatures) and shall have impressed or imprinted thereon the
seal of the Issuer. A facsimile signature shall have the same
force and effect as if personally signed. In case any officer
whose signature or facsimile of whose signature shall appear on
the Bonds shall cease to be such officer before the delivery of
such Bonds, such signature or such facsimile shall nevertheless
be valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
SECTION 2.5. Limited Obligation. The Bonds, together
with interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the Revenues pledged to
the Bonds, which Revenues are hereby pledged and assigned for the
equal and ratable payment of the Bonds (principal, premium, if
any, and interest) and shall be used for no other purpose than to
pay the principal of and premium, if any, and interest on the
Bonds, except as may be otherwise expressly authorized in this
Indenture. The Bonds (including premium, if any) and interest
thereon shall not constitute an indebtedness or pledge of the
general credit of the Issuer within the meaning of any Louisiana
constitutional or statutory provision and shall not constitute an
obligation of or a charge against the taxing powers of the
Issuer.
SECTION 2.6. Authentication. Only such Bonds as
shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A attached hereto
duly executed by the Trustee shall be entitled to any right or
benefit under this Indenture. No Bond shall be valid and
obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by the Trustee, and
such Certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of the Trustee, but it shall
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
SECTION 2.7. Delivery of the Bonds. The Issuer shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver said Bonds to the original
purchaser or purchasers thereof as may be directed hereinafter in
this Section, in Section 2.11 hereof, or in any supplemental
indenture.
Prior to the delivery on original issuance by the Trustee of
any authenticated Bonds there shall be or have been delivered to
the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture;
(b) An original duly executed counterpart or a duly
certified copy of the Refunding Agreement;
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the
Company Mortgage creating the series of First Mortgage Bonds
to be issued in respect of the Bonds as provided in Section
4.3 of the Refunding Agreement and (ii) such First Mortgage
Bonds;
(d) A written order to the Trustee by the Issuer to
authenticate and deliver the Bonds of such series to the
original purchasers thereof upon payment to Trustee, but for
the account of the Issuer, of a sum specified in such order;
and
(e) A copy, duly certified by the Secretary of the
governing authority of the Issuer, of the proceedings of the
governing body of the Issuer authorizing the issuance of the
Bonds.
SECTION 2.8. Mutilated, Destroyed or Lost Bonds. In
case any Bond issued hereunder shall become mutilated or be
destroyed or lost, the Issuer shall, if not then prohibited by
law, cause to be executed and the Trustee shall authenticate and
deliver a new Bond of the same series of like date, number,
maturity and tenor in exchange and substitution for and upon
cancellation of such mutilated Bond, or in lieu of and in
substitution for such Bond destroyed or lost, upon the holder's
paying the reasonable expenses and charges of the Issuer and
Trustee in connection therewith, and, in the case of a Bond
destroyed or lost, his filing with the Trustee evidence
satisfactory to the Company and the Trustee that such Bonds were
destroyed or lost, and of his ownership thereof, and furnishing
the Issuer, the Company and the Trustee with indemnity
satisfactory to them. The Trustee is hereby authorized to
authenticate any such new Bond. In the event any such Bonds
shall have matured, instead of issuing a new Bond, the Issuer may
pay the same without the surrender thereof.
SECTION 2.9. Registration and Exchange of Bonds. The
Issuer hereby constitutes and appoints the Trustee as Bond
Registrar of the Issuer, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the Issuer, the Trustee, nor the Bond
Registrar shall be affected by any notice to the contrary but
such registration may be changed as herein provided. All
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Bonds may be transferred on the books of registration kept
by the Trustee by the registered owner in person or by his duly
authorized attorney, upon surrender thereof together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations of
the same series with corresponding maturities. The Issuer shall
execute and the Trustee shall authenticate and deliver Bonds
which the bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding. The execution by the
Issuer of any Bond of any denomination shall constitute full and
due authorization of such denomination and the Trustee shall
thereby be authorized to authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds shall
be without charge to the holders of such Bonds, but any taxes or
other governmental charges required to be paid with respect to
the same shall be paid by the holder of the Bond requesting such
transfer or exchange as a condition precedent to the exercise of
such privilege.
The Trustee shall not be required to transfer or exchange
any Bond after the mailing of notice calling such Bond for
redemption has been made, nor during the period of fifteen (15)
days next preceding mailing of a notice of redemption of any
Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
SECTION 2.10. Cremation and Other Dispositions. All Bonds
surrendered for the purpose of payment or retirement, or for
exchange, or for replacement or payment as provided above, or for
cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the Issuer an appropriate certificate describing the
Bonds involved and the manner of disposition.
SECTION 2.11. Temporary Bonds. Until Bonds in definitive
form are ready for delivery, the Issuer may execute, and upon the
request of the Issuer, the Trustee shall authenticate and
deliver, subject to the provisions, limitations and conditions
set forth herein, one or more Bonds in temporary form, whether
printed, typewritten, lithographed or otherwise produced,
substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the Issuer
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
ARTICLE III
REFUNDING FUND
SECTION 3.1. Creation of Refunding Fund. There is
hereby created and ordered to be established with the Trustee a
trust fund of and in the name of the Issuer to be designated
"Parish of West Feliciana Pollution Control Revenue Refunding
Bonds (Gulf States Utilities Company Project) Series [ ]
Refunding Fund".
SECTION 3.2. Deposit of Proceeds of Bonds. All of
the proceeds of the Bonds, exclusive of accrued interest, if any,
shall be deposited in the Refunding Fund. On the date of
issuance of the Bonds, the Trustee shall transfer to the Prior
Trustee all such moneys for deposit in the bond fund created
under the Prior Indenture for the purpose of, together with
moneys of the Company deposited therein, refunding the Prior
Bonds on the Refunding Date.
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 4.1. Redemption. The Bonds shall be subject
to redemption prior to maturity as follows:
(a) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, in whole but not in
part, at any time, at a redemption price equal to the principal
amount being redeemed plus accrued interest to the redemption
date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the operation thereof, (B)
changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or damage
to all or part of the Facilities;
(iii) all or substantially all of the Facilities
shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities shall have been
enjoined or shall have otherwise been prohibited by any
order, decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
________________, in whole at any time or in part from time to
time (and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable), at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to % of the principal amount being redeemed
plus accrued interest to the redemption date, if the Company
shall have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In case a Bond is of a denomination larger than $5,000, a
portion of such Bond ($5,000 or any integral multiple thereof)
may be redeemed if otherwise permitted, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral
multiple thereof.
SECTION 4.2. Notice. Notice of any redemption,
identifying the Bonds or portions thereof being called and the
date on which they shall be presented for payment, shall be given
by the Trustee by first class mail, postage prepaid, to the
registered owner of each such Bond addressed to such registered
owner at his registered address and placed in the mails not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption; provided, however, that failure to
give such notice by mailing, or any defect therein, shall not
affect the validity of any proceeding for the redemption of any
Bond with respect to which no such failure or defect has
occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at the
option of the Issuer (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
by the Trustee prior to the giving of such notice, such notice
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the Issuer
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
SECTION 4.3. Redemption Payments. Subject to the
provisions of the last paragraph of Section 4.2 hereof, on or
prior to the date fixed for redemption, funds shall be deposited
with the Trustee to pay, and the Trustee is hereby authorized and
directed to apply such funds to the payment of, the Bonds or
portions thereof to be redeemed, together with accrued interest
thereon to the redemption date and any required premium. Upon
the giving of notice and the deposit of funds for redemption,
interest on the Bonds or portions thereof thus redeemed shall no
longer accrue after the date fixed for redemption.
SECTION 4.4. Cancellation. All Bonds which have been
redeemed shall not be reissued but shall be canceled and disposed
of by the Trustee in accordance with Section 2.10 hereof.
SECTION 4.5. Partial Redemption of Bonds. Upon
surrender of any Bond for redemption in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to
the holder thereof a new Bond or Bonds of the same series and the
same maturity, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE V
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
SECTION 5.1. Payment of Principal, Premium, If Any,
and Interest. The Issuer covenants that it will promptly pay or
cause to be paid the principal of and premium, if any, and
interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in the Bond
according to the true intent and meaning thereof; provided,
however, that the obligation of the Issuer hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or premium, if any, or interest on the Bonds shall
be reduced by the amount of moneys, if any, on deposit in the
Bond Fund and available to be applied by the Trustee toward the
payment of the principal of or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds, if any) are payable solely from the Trust Estate,
including the Revenues, which Revenues are hereby specifically
pledged and assigned for the payment thereof in the manner and to
the extent herein specified, and nothing in the Bonds or this
Indenture should be considered as assigning or pledging any funds
or assets of the Issuer other than the Revenues and the right,
title and interest of the Issuer in the Refunding Agreement
(except for the rights of the Issuer under Sections 4.5, 4.6, 4.7
and 8.4 of the Refunding Agreement and any rights of the Issuer
to receive notices, certificates, requests, requisitions,
directions and other communications under the Refunding
Agreement) in the manner and to the extent herein specified.
Anything in this Indenture to the contrary notwithstanding, it is
understood that whenever the Issuer makes any covenant involving
financial commitments, including, without limitation, those in
the various sections of this Article IV, it pledges no funds or
assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
SECTION 5.2. Performance of Covenants. The Issuer
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated, issued and delivered hereunder and in all
ordinances pertaining thereto. The Issuer covenants that it is
duly authorized under the Constitution and laws of the State of
Louisiana, including particularly and without limitation the Act,
to issue Bonds authorized hereby and to execute this Indenture
and to make the pledge and covenants in the manner and to the
extent herein set forth; that all action on its part for the
issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds
in the hands of the holders and owners thereof are and will be
valid and enforceable obligations of the Issuer according to the
import thereof.
SECTION 5.3. Instruments of Further Assurance. The
Issuer covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring,
pledging, assigning and confirming unto the Trustee the Trust
Estate.
SECTION 5.4. Recordation and Other Instruments. The
Issuer and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Refunding Agreement, such
security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to
time to be kept, to be recorded and filed in such manner and in
such places as may be required by law in order to fully preserve
and protect the security of the holders and owners of the Bonds
and the rights of the Trustee hereunder, and to perfect the
security interest created by this Indenture.
SECTION 5.5. Inspection of Project Books. The Issuer
and the Trustee covenant and agree that all books and documents
in their possession relating to the Facilities and the revenues
derived from the Facilities shall be open to inspection at all
reasonable times by such accountants or other agencies as the
other party may from time to time designate and by the Company.
SECTION 5.6. Rights Under Refunding Agreement. The
Refunding Agreement, a duly executed counterpart of which has
been filed with the Trustee, sets forth covenants and obligations
of the Issuer and the Company, including provisions that
subsequent to the issuance of Bonds and prior to their payment in
full or provision for payment thereof in accordance with the
provisions of the Refunding Agreement may not be effectively
amended, changed, modified, altered or terminated, or any
provision waived without the written consent of the Trustee, and
reference is hereby made to the same for a detailed statement of
said covenants and obligations of the Company thereunder, and the
Issuer agrees that the Trustee in its name or in the name of the
Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Refunding Agreement, for
and on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
SECTION 5.7. Prohibited Activities. The Issuer and
the Trustee covenant that neither of them shall take any action
or suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
Issuer and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
SECTION 5.8. No Transfer of First Mortgage Bonds.
The Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
SECTION 5.9. Voting of First Mortgage Bonds. The
Trustee shall, as the holder of the First Mortgage Bonds, attend
such meeting or meetings of holders of first mortgage bonds
issued under the Company Mortgage or, at its option, deliver its
proxy in connection therewith, as relate to matters with respect
to which it is entitled to vote or consent. So long as no Event
of Default hereunder shall have occurred and be continuing,
either at any such meeting or meetings, or otherwise when the
consent of the holders of the Company's first mortgage bonds
issued under the Company Mortgage is sought without a meeting,
the Trustee shall vote as the holder of the First Mortgage Bonds,
or shall consent with respect thereto, proportionately with what
the Trustee reasonably believes will be the vote or consent of
the holders of all other first mortgage bonds of the Company then
outstanding under the Company Mortgage the holders of which are
eligible to vote or consent; provided, however, that the Trustee
shall not vote as such holder in favor of, or give its consent
to, any amendment or modification of the Company Mortgage which
is correlative to any amendment or modification of this Indenture
referred to in Section 12.2 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 12.2,
of Bondholders which would be required under said Section 12.2
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section shall be binding upon the Issuer and
the Bondholders.
SECTION 5.10. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustee in accordance with the provisions of Section
4.3(d) and (e) of the Refunding Agreement.
SECTION 5.11. Notice to Company Mortgage Trustee. In the
event that a payment on the First Mortgage Bonds shall have
become due and payable and shall not have been fully paid after
the expiration of the applicable grace period, the Trustee shall
immediately give notice thereof to the Company Mortgage Trustee
specifying the amount of funds required to make such payment. In
the event that any Bonds are to be redeemed pursuant to any
provisions of this Indenture requiring mandatory redemption of
Bonds (other than at the direction of the Company), except for
provisions which establish sinking fund redemption requirements,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustee specifying the principal amount of Bonds so to
be redeemed and the redemption date therefor. Any such notice
given by the Trustee shall be signed by its President, a Vice
President or a Trust Officer thereof. The Trustee shall incur no
liability for failure to give any such notice and such failure
shall have no effect on the obligations of the Company on the
First Mortgage Bonds or on the rights of the Trustee or of the
bondholders.
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.1. Creation of Bond Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the Issuer to be designated "Parish of
West Feliciana Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series [ ] Bond Fund".
SECTION 6.2. Payments Into Bond Fund. There shall be
deposited into the Bond Fund as and when received:
(a) All accrued interest received at the time of the
issuance and delivery of the Bonds;
(b) All Revenues; and
(c) Any other moneys received by the Trustee under and
pursuant to any of the provisions of the Refunding Agreement
or this Indenture which are directed to be paid into the
Bond Fund.
SECTION 6.3. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 6.8 and 11.2 hereof, moneys in the
Bond Fund shall be used solely for the payment of the principal
of and premium, if any, and interest on the Bonds and for the
redemption or purchase of Bonds.
SECTION 6.4. Withdrawals from Bond Fund. The Bond
Fund shall be in the name of the Issuer, designated as set forth
in Section 6.1, and the Issuer hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient
funds to pay the principal of and premium, if any, and interest
on the Bonds at maturity and redemption prior to maturity and to
use such funds for the purpose of paying principal, premium, if
any, and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
Trustee hereby accepts.
SECTION 6.5. Non-Presentment of Bonds. In the event
any Bond shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Trustee for that purpose, or left in trust if
previously so deposited, funds sufficient to pay the principal
thereof, and premium, if any, together with all interest unpaid
and due thereon, to the due date thereof, for the benefit of the
holder thereof, all liability of the Issuer to the holder thereof
for the payment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for the benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
SECTION 6.6. Administration Expenses. It is
understood and agreed that pursuant to the provisions of Section
4.5 of the Refunding Agreement, the Company agrees to pay the
Administration Expenses of the Issuer. All such payments under
the Refunding Agreement which are received by the Trustee shall
not be paid into the Bond Fund, but shall be segregated by the
Trustee and expended solely for the purpose for which such
payments are received.
SECTION 6.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund under any provision of this Indenture and all
moneys withdrawn from the Bond Fund and held by any Paying Agent,
shall be held by the Trustee or such Paying Agent in trust, and
except for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article IX hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions and, where required by the provisions of the
Refunding Agreement the Trustee shall set the same aside in a
separate account. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement, it will pay the same over to the Trustee forthwith
upon receipt thereof to be held, administered and disbursed by
the Trustee in accordance with the provisions of the Refunding
Agreement pursuant to which the Issuer may have received the
same. Furthermore, if for any reason the Refunding Agreement
ceases to be in force and effect while any Bonds are outstanding,
the Issuer agrees that if it shall receive any moneys derived
from the Facilities, it will forthwith upon receipt thereof pay
the same over to the Trustee to be held, administered and
disbursed by the Trustee in accordance with provisions of the
Refunding Agreement that would be applicable if the Refunding
Agreement were then in force and effect, and if there be no such
provisions which would be so applicable, then the Trustee shall
hold, administer and disburse such moneys solely for the
discharge of the Issuer's obligations under this Indenture.
SECTION 6.8. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts as specified in the Refunding Agreement.
ARTICLE VII
SECURITY FOR AND INVESTMENTS
SECTION 7.1. Investment of Moneys. (a) Moneys held
for the credit of the Bond Fund shall, upon direction by the
Authorized Company Representative, be invested and reinvested by
the Trustee in any one or more of the following obligations or
securities on which neither the Company nor any of its
subsidiaries is the obligor: (i) Government Securities; (ii)
interest bearing deposit accounts (which may be represented by
certificates of deposit) in national or state banks (which may
include the Trustee, any Paying Agent, and the Bond Registrar)
having a combined capital and surplus of not less than
$10,000,000, or savings and loan associations having total assets
of not less than $40,000,000; (iii) bankers' acceptances drawn on
and accepted by commercial banks (which may include the Trustee,
any Paying Agent, and the Bond Registrar) having a combined
capital and surplus of not less than $10,000,000; (iv) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, any State of the United
States of America, the District of Columbia or the Commonwealth
of Puerto Rico, or any political subdivision of any of the
foregoing, which are rated in any of the three highest rating
categories by a nationally recognized rating agency; (v)
obligations of any agency or instrumentality of the United States
of America; (vi) commercial or finance company paper which is
rated in any of the three highest rating categories by a
nationally recognized rating agency; (vii) corporate debt
securities rated in any of the three highest rating categories by
a nationally recognized rating agency; and (viii) repurchase
agreements with banking or financial institutions having a
combined capital and surplus of not less than $10,000,000 (which
may include the Trustee, any Paying Agent, and the Bond
Registrar) with respect to any of the foregoing obligations or
securities. As used above, the reference to rating categories
shall mean generic categories which may include numerical or
other qualifications of ratings within each such generic rating
category such as "+" or "-". Such investments shall have
maturity dates, or shall be subject to redemption by the holder
at the option of the holder, on or prior to the dates the moneys
invested therein will be needed as reflected by a statement of
the Authorized Company Representative, which statement must be on
file with the Trustee prior to any investment.
(b) Obligations so purchased as an investment of moneys in
any fund or account shall be deemed at all times a part of such
fund or account. Any profit and income realized from such
investments shall be credited to such fund or account and any
loss shall be charged to such fund or account.
SECTION 7.2. Arbitrage Bond Covenant. With respect
to the authority to invest funds granted in this Indenture, the
Issuer and the Trustee hereby covenant with the holders of the
Bonds that, subject to the Company's direction of the investment
of funds, they will make no use of the proceeds of the Bonds, or
any other funds which may be deemed to be proceeds of the Bonds
pursuant to Section 148 of the Code, which would cause the Bonds
to be "arbitrage bonds" within the meaning of such Section.
The Company has agreed in the Refunding Agreement to comply
with rebate requirements of Section 148(f) of the Code. The
Trustee shall provide such information as the Company may request
to enable the Company to calculate the amount of gross earnings
on the Bond Fund and Refunding Fund.
SECTION 7.3. Balance in Funds After Payment of the
Bonds. Any balance in any of the funds created under this
Indenture or otherwise held by the Trustee after all the Bonds
issued hereunder and secured hereby have been paid in full, or
provision for payment in full thereof have been made, and all
amounts due to the Trustee and the Issuer have been paid, shall
be paid over to the Company. Should the holders of any Bonds
fail or neglect to present their Bonds for payment within one
year from the date such Bonds become due and payable, whether by
redemption or at maturity, the Trustee shall, at the end of such
period, remit to the Company in trust for the holders of the
Bonds the money then held for such Bonds; and the holders of such
Bonds shall thereafter have recourse only to the Company for
payment thereof.
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION 8.1. Rights of Company Under Refunding
Agreement. Nothing herein contained shall be deemed to impair
the rights and privileges of the Company set forth in the
Refunding Agreement and an Event of Default hereunder shall not
constitute an "Event of Default" under the Refunding Agreement
unless by the terms of the Refunding Agreement it constitutes an
"Event of Default" thereunder.
SECTION 8.2. Enforcement of Rights and Obligations.
The Issuer and the Trustee agree that the Company in its own name
or in the name of the Issuer may enforce all of the rights of the
Issuer, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
ARTICLE IX
DISCHARGE OF LIEN
SECTION 9.1. Discharge of Lien. If the Issuer shall
pay or cause to be paid to the holders and owners of the Bonds
the principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the Issuer shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it on its part
and shall pay or cause to be paid all other sums payable
hereunder by the Issuer, then these presents and the estate and
rights hereby granted shall cease, terminate and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the Issuer such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the Issuer the estate hereby conveyed, and assign and
deliver to the Issuer any property at the time subject to the
lien of this Indenture which may then be in its possession,
except moneys or Government Securities held by it for the payment
of the principal of and premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning of
this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that in
either case the Trustee shall have received an opinion of Bond
Counsel to the effect that such deposit will not affect the
exclusion of the interest on any of the Bonds from gross income
for purposes of federal income taxation or cause any of the Bonds
to be treated as arbitrage bonds within the meaning of Section
148(a) of the Code) maturing as to principal and interest in such
amounts and at such times as will provide sufficient moneys to
make such payment when due, and all necessary and proper fees,
compensation and expenses of the Trustee and any Paying Agent
pertaining to the Bonds with respect to which such deposit is
made and all other liabilities of the Company under the Refunding
Agreement, pertaining to the Bonds with respect to which such
deposit is made, shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. No deposit
under (b) above shall constitute such discharge and satisfaction
until the Company shall have irrevocably notified the Trustee of
the date for payment of such Bond either at maturity or on a date
on which such Bond may be redeemed in accordance with the
provisions hereof and notice of such redemption shall have been
given or irrevocable provisions shall have been made for the
giving of such notice.
The Issuer or the Company may at any time surrender to the
Trustee for cancellation by it any Bonds previously authenticated
and delivered hereunder, which the Issuer or the Company may have
acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and
retired.
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
SECTION 10.1. Events of Default. Each of the following
events shall constitute and is referred to in this Indenture as
an "Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured
and outstanding, whether at the stated maturity thereof, or
upon unconditional proceedings for redemption thereof, or
upon the maturity thereof by acceleration;
(c) an "Event of Default" as such term is defined in
Section 8.1(a) of the Refunding Agreement; or
(d) default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the Issuer and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of an aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the Issuer, or the Company on behalf of the
Issuer, within such period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (d) above
shall mean default by the Issuer in the performance or observance
of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
SECTION 10.2. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a) or (b)
of the first paragraph of Section 10.1 hereof, the Bonds shall,
without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in writing to the Issuer and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 4.2 hereof.
Upon the occurrence and continuance of an Event of Default
described in clause (c) of the first paragraph of Section 10.1
hereof, and further upon the condition that, in accordance with
the terms of the Company Mortgage, the First Mortgage Bonds shall
have become immediately due and payable pursuant to any provision
of the Company Mortgage, the Bonds shall, without further action,
become and be immediately due and payable, anything in this
Indenture or in the Bonds to the contrary notwithstanding, and
the Trustee shall give notice thereof in writing to the Issuer
and the Company, and notice to Bondholders in the same manner as
a notice of redemption under Section 4.2 hereof.
SECTION 10.3. Other Remedies; Rights of Bondholders. Upon
the occurrence and continuance of an Event of Default, the
Trustee may, in addition or as an alternative, pursue any
available remedy by suit at law or in equity to enforce the
payment of the principal of and premium, if any, and interest on
the Bonds then outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it shall
have been requested so to do by the holders of 25% in aggregate
principal amount of Bonds outstanding hereunder and shall have
been indemnified as provided in Section 11.1 hereof, the Trustee
shall be obligated to exercise such one or more of the rights and
powers conferred upon it by this Section as the Trustee, being
advised by counsel, shall deem most expedient in the interests of
the bondholders.
No remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the Bondholders) is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power accruing
upon any default or Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such default
or Event of Default or acquiescence therein; and every such right
and power may be exercised from time to time and as often as may
be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
SECTION 10.4. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds
outstanding hereunder shall have the right, at any time, by an
instrument or instruments in writing executed and delivered to
the Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of
a receiver or any other proceeding hereunder; provided that such
direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture.
SECTION 10.5. Appointment of Receiver. Upon the occurrence
and continuance of an Event of Default, and upon the filing of a
suit or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Bondholders under this
Indenture, the Trustee shall be entitled, as a matter of right,
to the appointment of a receiver or receivers of the Trust Estate
and of the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, pending such proceedings with such
powers as the court making such appointment shall confer.
SECTION 10.6. Waiver. In case of an Event of Default on
the part of the Issuer, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the Issuer nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Louisiana.
SECTION 10.7. Application of Moneys. Available moneys
remaining after discharge of costs, charges and liens prior to
this Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled
thereto of all installments of interest then due, in
the order of the maturity of the installments of such
interest, and, if the amount available shall not be
sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled
thereto, without any discrimination or privilege;
Second: To the payment to the persons entitled
thereto of the unpaid principal of any of the Bonds
which shall have become due (other than Bonds called
for redemption for the payment of which moneys are
held pursuant to the provisions of this Indenture), in
the order of their due dates, with interest on such
Bonds from the respective dates upon which they become
due, and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular
date, together with such interest, then to the payment
ratably, according to the amount of principal due on
such date, to the persons entitled thereto without any
discrimination or privilege of any Bond over any other
Bond and without preference or priority of principal
over interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of
Bonds, all in accordance with the provisions of
Article VI of this Indenture.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to
the payment of the principal and interest then due and
unpaid upon the Bonds, without preference or priority of
principal over interest or of interest over principal, or of
any Bond over any other Bond, ratably, according to the
amounts due respectively for principal and interest, to the
persons entitled thereto without discrimination or
privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if acceleration of the maturity
of the Bonds by reason of an Event of Default shall
thereafter have been rescinded and annulled under the
provisions of this Article, then, subject to the provisions
of paragraph (b) of this Section in the event that the
principal of all the Bonds shall later become due and
payable, the moneys shall be applied in accordance with the
provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to
the provisions of this Section, such moneys shall be applied at
such times, and from time to time, as it shall determine, having
due regard to the amount of such moneys available for application
and the likelihood of additional moneys becoming available for
such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an interest
payment date unless it shall deem another date more suitable)
upon which such application is to be made and upon such date
interest on the amounts of principal paid on such date shall
cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the deposit with it of any such moneys and of
the fixing of any such date and shall not be required to make
payment to the holder of any Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
SECTION 10.8. Remedies Vested in Trustee. All rights of
action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the
ratable benefit of the holders of the outstanding Bonds.
SECTION 10.9. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless a default shall have occurred of which the Trustee shall
have been notified as provided in subsection (g) of Section 11.1,
or of which by said subsection it is deemed to have notice, nor
unless such default shall have become an Event of Default and the
holders of 25% in aggregate principal amount of Bonds outstanding
hereunder shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, nor unless also they
have offered to the Trustee indemnity as provided in Section
11.1, nor unless also the Trustee shall thereafter fail or refuse
to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its own name; and such
notification, request and offer of indemnity are hereby declared
in every such case at the option of the Trustee to be conditions
precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the
enforcement of this Indenture or for the appointment of a
receiver or for any other remedy hereunder; it being understood
and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by his or their action or to
enforce any right hereunder except in the manner herein provided,
and that all proceedings at law or in equity shall be instituted,
held and maintained in the manner herein provided for the equal
benefit of the holders of all Bonds outstanding hereunder.
Nothing in this Indenture contained shall affect or impair the
right of any Bondholder to enforce the payment of the principal
of and interest on any Bonds at and after the maturity thereof,
or the obligation of the Issuer to pay the principal of and
interest on each of the Bonds issued hereunder to the respective
holders thereof at the time and place in said Bonds expressed.
SECTION 10.10. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver or otherwise, and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies
and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
SECTION 10.11. Waivers of Events of Default. The provisions
of this Article X are subject to the condition that any waiver of
any "Default" under the Company Mortgage and a rescission and
annulment of its consequences shall constitute a waiver of the
corresponding Event or Events of Default under clause (c) of the
first paragraph of Section 10.1 hereof and a rescission and
annulment of the consequences thereof, but no such waiver,
rescission and annulment shall extend to or affect any subsequent
Event of Default or impair any right or remedy consequent
thereon.
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
SECTION 11.1. Acceptance of Trusts. The Trustee hereby
accepts the trust imposed upon it by this Indenture, and agrees
to perform said trust (i) except during the continuance of an
Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or
through attorneys, agents, receivers or employees, and shall
be entitled to advice of counsel concerning all matters of
trusts hereof and its duties hereunder, and may in all cases
pay reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable
care, or, if selected or retained by the Issuer prior to the
occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section 11.1,
or of which by said subsection the Trustee is deemed to have
notice, approved by the Trustee in the exercise of such
care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance
with any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any
insurance moneys, or for the validity of the execution by
the Issuer of this Indenture or of any supplemental
indentures or instrument of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder
or intended to be secured hereby, or for the value of the
title of the property herein conveyed or otherwise as to the
maintenance of the security hereof; except that in the event
the Trustee enters into possession of a part or all of the
property herein conveyed pursuant to any provision of this
Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any
covenants, conditions and agreements aforesaid as to the
condition of the property herein conveyed.
(c) The Trustee (not in its capacity as trustee) may
become the owner of Bonds secured hereby with the same
rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it,
in the exercise of reasonable care, to be genuine and
correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to
this Indenture upon the request or authority or consent of
the owner of any Bond secured hereby, shall be conclusive
and binding upon all future owners of the same Bond and upon
Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument,
paper or proceeding, the Trustee shall be entitled to rely
upon a certificate of the Issuer signed by the President and
attested by the Secretary of the governing authority of the
Issuer, as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which
it has been notified as provided in subsection (g) of this
Section 11.1, or of which by that subsection it is deemed to
have notice, and shall also be at liberty to accept a
similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient,
but may at its discretion, at the reasonable expense of the
Issuer, in every case secure such further evidence as it may
think necessary or advisable but shall in no case be bound
to secure the same. The Trustee may accept a certificate of
the Secretary of the governing authority of the Issuer under
its seal to the effect that a resolution or ordinance in the
form therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution or ordinance has
been duly adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty of the Trustee.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except
a default under clause (a) or (b) of the first paragraph of
Section 10.1 hereof concerning which the Trustee shall be
deemed to have notice) unless the Trustee shall be
specifically notified in writing of such default by the
Issuer or by the holders of at least 10% in aggregate
principal amount of Bonds outstanding hereunder and all
notices or other instruments required by this Indenture to
be delivered to the Trustee must, in order to be effective,
be delivered to the office of the Trustee, and in the
absence of such notice so delivered, the Trustee may
conclusively assume there is no such default except as
aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfill
ment of contracts during any period in which it may be in
the possession of or managing the real and tangible personal
property as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully
to inspect any and all of the property herein conveyed,
including all books, papers and records of the Issuer
pertaining to the Facilities and the Bonds, and to take such
memoranda from and in regard thereto as may be desired,
provided, however, that nothing contained in this subsection
or in any other provision of this Indenture shall be
construed to entitle the above named persons to any
information or inspection involving the confidential
know-how or expertise or proprietary secrets of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals, or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, deemed desirable for the purpose of establishing
the right of the Issuer to the authentication of any Bonds,
the withdrawal of any cash, the release of any property, or
the taking of any other action by the Trustee. Before
taking such action hereunder, the Trustee may require that
it be furnished an indemnity bond satisfactory to it for the
reimbursement to it of all expenses to which it may be put
and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so
taken by the Trustee.
SECTION 11.2. Fees, Charges and Expenses of Trustee and
Paying Agents. The Trustee and any Paying Agent shall be
entitled to payment and/or reimbursement for reasonable fees for
services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred in and
about the execution of the trusts created by this Indenture. The
Issuer has made provisions in the Refunding Agreement for the
payment of such Administration Expenses and reference is hereby
made to the Refunding Agreement for the provisions so made. In
this regard, it is understood that the Issuer pledges no funds or
revenues other than those derived from and the avails of the
Trust Estate to the payment of any obligation of the Issuer set
forth in this Indenture, including the obligations set forth in
this Section 11.2, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds and revenues
for the payment of any of its obligations under this Indenture.
Upon an Event of Default, but only upon an Event of Default, the
Trustee and the Paying Agents shall have a first lien with right
of payment prior to payment on account of principal or interest
of any Bond issued hereunder upon the Trust Estate for such
reasonable and necessary advances, fees, costs and expenses
incurred by them respectively.
SECTION 11.3. Notice to Bondholders of Default. The
Trustee shall be required to make demand upon and give notice to
the Company and each registered owner of Bonds then outstanding
as follows:
(a) If the Company shall fail to make any installment
payment under the Refunding Agreement on the day such
payment is due and payable, the Trustee shall give notice to
and make demand upon the Company on the next succeeding
business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 11.1(g) deemed to have
or is given notice, the Trustee shall promptly give notice
to the Company and to the Bondholders.
SECTION 11.4. Intervention by Trustee. In any judicial
proceeding to which the Issuer is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of holders of Bonds issued hereunder, the
Trustee may intervene on behalf of Bondholders and shall do so if
requested in writing by the holders of at least 10% of the
aggregate principal amount of Bonds outstanding hereunder. The
rights and obligations of the Trustee under this Section 11.4 are
subject to the approval of the court having jurisdiction in the
premises.
SECTION 11.5. Merger or Consolidation of Trustee. Any bank
or trust company with which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which the Trustee is a
party, ipso facto, shall be and become successor trustee
hereunder and vested with all of the title to the whole property
or Trust Estate and all the trusts, powers, discretions,
immunities, privileges, and all other matters as was its
predecessor, without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such successor trustee shall have capital
and surplus of at least $10,000,000.
SECTION 11.6. Resignation by Trustee. The Trustee and any
successor trustee may at any time resign from the trusts hereby
created by giving thirty (30) days written notice to the Issuer
and to the Company, and such resignation shall take effect at the
end of such thirty (30) days, or upon the earlier appointment of
a successor trustee by the Bondholders or by the Issuer. Such
notice may be served personally or sent by registered mail.
SECTION 11.7. Removal of Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee and to the Issuer, and signed by
the holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
SECTION 11.8. Appointment of Successor Trustee. In case
the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by the court, a successor
may be appointed by the holders of a majority in aggregate
principal amount of Bonds outstanding hereunder, by an instrument
or concurrent instruments in writing signed by such holders, or
by their attorneys in fact, duly authorized; provided,
nevertheless, that in case of such vacancy the Issuer, subject to
the approval of the Company, by an instrument executed and signed
by the President and attested by the Secretary of the governing
authority of the Issuer under its seal, shall appoint a temporary
trustee to fill such vacancy until a successor trustee shall be
appointed by the Bondholders in the manner above provided; and
any such temporary trustee so appointed by the Issuer shall
immediately and without further act be superseded by the trustee
so appointed by such Bondholders. Every such temporary trustee
and every such successor trustee shall be a trust company or bank
in good standing, having capital and surplus of not less than
$10,000,000.
SECTION 11.9. Concerning Any Successor Trustee. Every
successor or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the Issuer
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Issuer or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the Issuer be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The
resignation of any trustee and the instrument or instruments
removing any trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article
shall, at the expense of the Issuer, be forthwith filed and/or
recorded by the successor trustee in each recording office where
the Indenture shall have been filed and/or recorded.
SECTION 11.10. Reliance Upon Instruments. The resolutions,
opinions, certificates and other instruments provided for in this
Indenture may be accepted and relied upon by the Trustee as
conclusive evidence of the facts and conclusions stated therein
and shall be full warrant, protection and authority to the
Trustee for its actions taken hereunder.
SECTION 11.11. Appointment of Co-Trustee. The Issuer and
the Trustee shall have power to appoint and upon the request of
the Trustee the Issuer shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another corporation or one or more persons approved by
the Trustee, and satisfactory to the Company so long as there is
no termination of the interest of the Company by virtue of an
Event of Default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the Issuer shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the Issuer be required
by any separate trustee or co-trustee so appointed for more fully
and certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
Issuer. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the custody of all money and
securities pledged or deposited hereunder shall be
exercised, solely by the Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or co-trustee.
Every instrument, other than this Indenture, appointing any
such co-trustee or separate trustee, shall refer to this
Indenture and the conditions of this Article expressed, and upon
the acceptance in writing by such separate trustee or co-trustee,
he, they or it shall be vested with the estate or property
specified in such instrument, jointly with the Trustee (except
insofar as local law makes it necessary for any separate trustee
to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
SECTION 11.12. Designation and Succession of Paying Agents.
Any bank or trust company with which or into which any Paying
Agent may be merged or consolidated, or to which the assets and
business of such Paying Agent may be sold, shall be deemed the
successor of such Paying Agent for the purposes of this
Indenture. If the position of Paying Agent shall become vacant
for any reason, the Issuer shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the Issuer shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective provisions
in the performance of their duties hereunder as are specified in
Section 11.1 hereof with respect to the Trustee insofar as such
provisions may be applicable.
SECTION 11.13. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Paying Agent, and the Bond
Registrar and in any other combination of such capacities, to the
extent permitted by law.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Supplemental Indentures Without Bondholder
Consent. The Issuer and the Trustee may, from time to time and
at any time, without the consent of or notice to the Bondholders,
enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the Issuer in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the Issuer which are not
contrary to or inconsistent with this Indenture as
theretofore in effect, provided that no such additional
liabilities or duties shall be imposed upon the Trustee
without its consent;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the Revenues
of the Issuer from the Refunding Agreement or of any other
moneys, securities or funds;
(e) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(f) to provide for the registration and registration
of transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(g) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clause (a), (b), (c), (d), (e) or (f) of
Section 12.2 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
SECTION 12.2. Supplemental Indentures Requiring Bondholder
Consent. Subject to the terms and provisions contained in this
Section, and not otherwise, the holders of not less than a
majority in aggregate principal amount of the Bonds then
outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary and desirable by the Issuer for the
purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;
provided, however, that nothing herein contained shall permit, or
be construed as permitting, unless approved by the holders of all
Bonds then outstanding (a) an extension of the maturity (or
mandatory sinking fund or other mandatory redemption date) of the
principal of or the interest on any Bond issued hereunder, or (b)
a reduction in the principal amount of or redemption premium or
rate of interest on any Bond issued hereunder, or (c) the
creation of any lien ranking prior to or on a parity with the
lien of this Indenture on the Trust Estate or any part thereof,
except as hereinbefore expressly permitted, or (d) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or
(e) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture, or (f)
depriving the holder of any Bond then outstanding of the lien
hereby created on the Trust Estate. Nothing herein contained,
however, shall be construed as making necessary the approval of
Bondholders of the execution of any supplemental indenture as
provided in Section 12.1 of this Article.
If at any time the Issuer shall request the Trustee to enter
into any supplemental indenture for any of the purposes of this
Section, the Trustee shall, at the expense of the Issuer, cause
notice of the proposed execution of such supplemental indenture
to be mailed by first class mail to each registered owner of the
Bonds. Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies
thereof are on file at the principal corporate trust office of
the Trustee for inspection by Bondholders. The Trustee shall
not, however, be subject to any liability to any Bondholder by
reason of its failure to mail such notice, and any such failure
shall not affect the validity of such supplemental indenture when
consented to and approved as provided in this Section. If the
holders of not less than a majority in aggregate principal amount
of the Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture, this Indenture
shall be deemed to be modified and amended in accordance
therewith.
SECTION 12.3. Consent of Company. Anything herein to the
contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Company
shall have consented to the execution and delivery of such
supplemental indenture. In this regard, the Trustee shall cause
notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
SECTION 12.4. Opinion of Bond Counsel. Anything herein to
the contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such supplemental indenture will not affect the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
ARTICLE XIII
AMENDMENT TO REFUNDING AGREEMENT
SECTION 13.1. Amendments With and Without the Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Refunding
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein which, in
the reasonable judgment of the Trustee, is not to the prejudice
of the Trustee or the holders of the Bonds. The Trustee shall
not consent to any other amendment, change or modification of the
Refunding Agreement without the approval or consent of the
holders of not less than a majority in aggregate principal amount
of the Bonds at the time outstanding, evidenced in the manner
provided in Section 14.1 hereof; provided the Trustee shall not,
without the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 14.1
hereof, consent to any amendment which would change the
obligations of the Company under Section 4.2 or 4.3 of the
Refunding Agreement or the nature of the obligations of the
Company on the First Mortgage Bonds as provided in Section 4.3 of
the Refunding Agreement.
SECTION 13.2. Notice to Bondholders. If at any time the
Issuer or the Company shall request the Trustee's consent to a
proposed amendment, change or modification requiring Bondholder
approval under Section 13.1, the Trustee, shall, at the expense
of the requesting party, cause notice of such proposed amendment,
change or modification to the Refunding Agreement to be mailed in
the same manner as provided by Section 12.2 hereof with respect
to supplemental indentures. Such notice shall briefly set forth
the nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are
on file in the principal office of the Trustee for inspection by
any interested bondholder. The Trustee shall not, however, be
subject to any liability to any Bondholder by reason of its
failure to publish or mail such notice, and any such failure
shall not affect the validity of such amendment, change or
modification when consented to by the Trustee in the manner
herein provided.
SECTION 13.3. Opinion of Bond Counsel. Anything herein to
the contrary notwithstanding, any amendment to the Refunding
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Consents, etc. of Bondholders. Any request,
direction, objection or other instrument required by this
Indenture to be signed and executed by the Bondholders may be in
any number of concurrent writings of similar tenor and may be
signed or executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds,
if made in the following manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and
the date of holding the same shall be proved by the
registration books of the Issuer maintained by the Trustee
as Bond Registrar.
SECTION 14.2. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds issued
hereunder, is intended or shall be construed to give to any
person or company other than the parties hereto, the Company, and
the holders of the Bonds secured by this Indenture any legal or
equitable rights, remedy or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions
and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto, the Company, and the
holders of the Bonds hereby secured as herein provided.
SECTION 14.3. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case, circumstance or jurisdiction, or of rendering
any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
SECTION 14.4. Notices. Except as otherwise provided in
this Indenture, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company, the Trustee and any Paying Agent. Notices,
certificates or other communications shall be sent to the
following addresses:
Company: Gulf States Utilities Company
c/o Entergy Services, Inc.
Entergy Corporation Building
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Parish of West Feliciana
The Police Jury House
9795 Royal Street
St. Francisville, LA 70775
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Corporate Trust Department
Any
Paying
Agent
other At the address designated to the Issuer and the
than the Trustee
Trustee:
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 14.5. Applicable Provisions of Law. This Indenture
shall be considered to have been executed in the State of
Louisiana and it is the intention of the parties that the
substantive law of the State of Louisiana governs as to all
questions of interpretation, validity and effect.
SECTION 14.6. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 14.7. Successors and Assigns. All the covenants,
stipulations, provisions, agreements, rights, remedies and claims
of the parties hereto in this Indenture contained shall bind and
inure to the benefit of their successors and assigns.
SECTION 14.8. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Indenture.
SECTION 14.9. Photocopies and Reproductions. A photocopy
or other reproduction of this Indenture may be filed as a
financing statement pursuant to the Louisiana Commercial Laws -
Secured Transactions, although the signatures of the Issuer and
the Trustee on such reproduction are not original manual
signatures.
SECTION 14.10. Bonds Owned by the Issuer or the Company. In
determining whether Bondholders of the requisite aggregate
principal amount of the Bonds have concurred in any direction,
consent or waiver under this Indenture, Bonds which are owned by
the Company or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with
the Company shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Bonds
which the Trustee knows are so owned shall be so disregarded.
Bonds 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 Bonds and that the pledgee is not the Company or
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. In
case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 14.11. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall be a legal
holiday or a day on which banking institutions in the city in
which is located the principal corporate trust office of the
Trustee are authorized by law to remain closed, such payment may
be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest on the amount so payable shall
accrue for the period after such nominal date.
SECTION 14.12. Subordination of Rights of the Company. This
Indenture and the rights and privileges hereunder of the Trustee
and the holders of the Bonds are specifically made subject and
subordinate to the rights and privileges of the Company set forth
in the Refunding Agreement. Nothing in this Indenture or the
Refunding Agreement shall in any way prejudice the Company
Mortgage with respect to the lien thereof, or any of the rights
of the Company Mortgage Trustee thereof, or any holder of bonds
heretofore or hereafter issued thereunder, or any takers or
purchasers upon default thereunder.
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the President of the West
Feliciana Parish Police Jury and its corporate seal to be
hereunto affixed and attested by the Secretary of the West
Feliciana Parish Police Jury, and, to evidence its acceptance of
the trust hereby created, the Trustee has caused these presents
to be signed in its behalf by one of its _______________________
and its corporate seal to be hereto affixed.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By:_________________________________
ATTEST: President
West Feliciana Parish Policy Jury
By: [SEAL]
Secretary
West Feliciana Parish Police Jury
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By:_________________________________
Title:
[SEAL]
<PAGE>
EXHIBIT A
TO THE TRUST INDENTURE
[FORM OF FACE OF SERIES [ ] BOND]
No. R- $___________
United States of America
State of Louisiana
Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bond
(Gulf States Utilities Company Project)
Series [ ]
Date of Bond:
Maturity Date:
Interest Rate:
Registered Owner:
Principal Amount: CUSIP __________
KNOW ALL MEN BY THESE PRESENTS that the Parish of West
Feliciana, State of Louisiana, a political subdivision of the
State of Louisiana, organized and existing under and by virtue of
the laws of the State of Louisiana (the "Issuer"), for value
received, promises to pay to the registered owner shown above, or
registered assigns, but solely from the source and in the manner
hereinafter set forth, on the maturity date shown above, the
principal amount shown above and in like manner to pay interest
on said amount from the date hereof shown above until such
principal amount becomes due and payable, at the rate per annum
shown above, semiannually on __________ and __________ of each
year commencing on the __________ or __________ next succeeding
the date of this Bond, except as the provisions hereinafter set
forth with respect to redemption of this Bond prior to maturity
may become applicable hereto. The principal of and premium, if
any, on this Bond are payable in lawful money of the United
States of America upon the presentation and surrender hereof at
the principal corporate trust office of First National Bank of
Commerce, in the City of New Orleans, Louisiana, or its successor
or successors, as trustee (the "Trustee"), and interest on this
Bond is payable in like money to the registered owner hereof by
check drawn upon the Trustee and mailed to the person in whose
name this Bond is registered at the close of business on the
fifteenth day of the calendar month next preceding such interest
payment date, at the address as it appears on the bond
registration books of the Issuer kept by the Trustee.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the issuance of the Bonds do exist, have
happened and have been performed in due time, form and manner as
required by law; that the indebtedness represented by the Bonds,
together with all obligations of the Issuer, does not exceed any
Louisiana constitutional or statutory limitation; and that the
revenues pledged to the payment of the principal of and premium,
if any, and interest on the Bonds as the same become due and
payable will be sufficient in amount for that purpose.
IN WITNESS WHEREOF, the Parish of West Feliciana, State of
Louisiana, has caused this Bond to be executed by the President
of the West Feliciana Parish Police Jury and attested by the
Secretary of the West Feliciana Parish Police Jury (by their
manual or facsimile signatures), thereunto duly authorized, and
its corporate seal to be affixed or imprinted, all as of the date
of this Bond shown above.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By: _________________________________
ATTEST: President
West Feliciana Parish Policy Jury
By: [SEAL]
Secretary
West Feliciana Parish Police Jury
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in and
issued under the provisions of the within mentioned Indenture.
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By: __________________________________
Authorized Signature
Date of Authentication:
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_________________________________________________________________
_____________
Please Insert Social
Security
or other Identifying
Number of Assignee
_________________________________________________________________
the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints
_________________________________________________________________
_____________________________________________ attorney or agent
to transfer the within Certificate on the books kept for
registration thereof, with full power of substitution in the
premises.
Dated: Signature: Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Certificate in
every particular, without alteration or enlargement or any change
whatever.
Signature guarantee should be made by a guarantor institution
participating in the Securities Transfer Agents Medallion Program
or in such other manner acceptable to the Trustee.
<PAGE>
[FORM OF REVERSE OF SERIES [ ] BOND]
This Bond is one of an authorized issue of bonds of the
Issuer designated "Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bond (Gulf States Utilities
Company Project) Series [ ]", in the aggregate principal
amount of [$ ] (the "Bonds"), authorized by a
resolution adopted by the governing authority of the Issuer and
issued under and secured by a Trust Indenture dated as of
September 1, 1994 (the "Indenture") duly executed and delivered
by the Issuer to the Trustee, in full conformity with the
Constitution and laws of the State of Louisiana, including
particularly the provisions of Chapter 14-A of Title 39 of the
Louisiana Revised Statutes of 1950, as amended (the "Act"). The
Bonds are issued for the purpose of refunding the Issuer's
outstanding Pollution Control Revenue Bonds (Gulf States
Utilities Company Project) Series 1984A, Series 1984B, Series
1984C and Series 1984D (the "Prior Bonds"), in the aggregate
principal amount of $102,000,000 issued to finance the cost of
acquiring a leasehold interest in the undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities (the "Facilities") at the River Bend Unit 1 nuclear
power plant in the Parish of West Feliciana, Louisiana, owned by
Gulf States Utilities Company, a Texas corporation (the
"Company"), and paying the costs of issuing the Bonds. Reference
is hereby made to the Indenture and all indentures supplemental
thereto for the provisions, among others, with respect to the
nature and extent of the security, the rights, duties and
obligations of the Issuer, the Trustee and the registered owners
of the Bonds, and the terms upon which the Bonds are issued and
secured.
The Bonds are not general obligations of the Issuer but are
special obligations payable solely from Revenues of the Issuer
(as defined in the Indenture), including (i) payments to be made
by the Company to the Trustee for the benefit of the Issuer
(except payments with respect to the indemnification or
reimbursement of certain expenses of the Issuer) under a
Refunding Agreement dated as of [ ], between the
Issuer and the Company (the "Refunding Agreement"), (ii) all
money received under the Refunding Agreement to be paid into the
Bond Fund (as defined in the Indenture), including the income
thereon and investment thereof, if any, and (iii) in certain
events, amounts attributable to Bond proceeds or amounts obtained
through the exercise of certain remedies provided for in the
Indenture. The Refunding Agreement requires that the Company
make payments and pay interest thereon in amounts sufficient to
provide for the payment of the principal of and premium, if any,
and interest on the Bonds as they become due and payable. Such
payments will be made directly to the Trustee and deposited in a
special account of the Issuer designated "Parish of West
Feliciana Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series [ ] Bond Fund" and
such payments have been duly assigned to the Trustee for that
purpose. The obligation of the Company to make such payments is
evidenced in part by the Company's first mortgage bonds issued
and delivered to the Trustee as an additional series under the
Company's Indenture of Mortgage dated as of September 1, 1926
made to The Chase National Bank in the City of New York, as
trustee (the "Company Mortgage Trustee"), as heretofore and
hereafter amended and supplemented (the "Company Mortgage"). All
the rights and interests of the Issuer under, in and to the
Refunding Agreement (except for certain rights specified in the
Indenture) have been assigned under the Indenture to the Trustee
to secure the payment of the principal of and premium, if any,
and interest on the Bonds.
The owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the
covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds issued under the
Indenture and then outstanding may be declared and may become due
and payable before the stated maturity thereof, together with
accrued interest thereon.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the extent
and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity as
follows:
(a) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, in whole but not in
part, at any time, at a redemption price equal to the principal
amount being redeemed plus accrued interest to the redemption
date, if:
(i) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the operation thereof, (B)
changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or
damage to all or part of the Facilities;
(iii) all or substantially all of the Facilities
shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities shall have been
enjoined or shall have otherwise been prohibited by any
order, decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
________________, in whole at any time or in part from time to
time, and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption Period Redemption Price
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to ________________, at a redemption
price equal to ______% of the principal amount being redeemed
plus accrued interest to the redemption date, if the Company
shall have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In the event any of the Bonds or portions thereof (which
shall be in $5,000 denominations or any integral multiple
thereof) are called for redemption, notice thereof shall be given
by the Trustee by first class mail, postage prepaid, to the
registered owner of each such Bond addressed to such registered
owner at the registered address and placed in the mails not less
than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption; provided, however, that failure to
give such notice by mailing, or any defect therein, shall not
affect the validity of any proceeding for the redemption of any
Bond with respect to which no such failure or defect has
occurred. Each notice shall identify the Bonds or portions
thereof being called, and the date on which they shall be
presented for payment. After the date specified in such call,
the Bond or Bonds so called will cease to bear interest, provided
funds sufficient for their redemption have been deposited with
the Trustee, and, except for the purpose of payment, shall no
longer be protected by the Indenture and shall not be deemed to
be outstanding under the provisions of the Indenture.
With respect to notice of redemption of Bonds at the option
of the Issuer (at the direction of the Company), unless moneys
sufficient to pay the principal of and premium, if any, and
interest on the Bonds to be redeemed shall have been received by
the Trustee prior to the giving of such notice, such notice shall
state that said redemption shall be conditional upon the receipt
of such moneys by the Trustee on or prior to the date fixed for
such redemption. If such moneys shall not have been so received,
such notice shall be of no force and effect, the Issuer shall not
redeem such Bonds and the Trustee shall give notice, in the
manner in which the notice of redemption was given, that such
moneys were not so received.
This Bond may be transferred on the books of registration
kept by the Trustee by the registered owner or by his duly
authorized attorney upon surrender hereof, together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without coupons
in denominations of $5,000 and any integral multiple thereof.
Subject to the limitations and upon payment of the charges
provided in the Indenture, Bonds may be exchanged for a like
aggregate principal amount of Bonds of other authorized
denominations.
The Indenture and the rights and privileges under the
Indenture of the Trustee and the holders of the Bonds are
specifically made subject and subordinate to the rights and
privileges of the Company set forth in the Refunding Agreement.
Nothing in the Indenture or the Refunding Agreement shall in any
way prejudice the Company Mortgage with respect to the lien
thereof, or any of the rights of the Company Mortgage Trustee
thereof, or any holder of bonds heretofore or hereafter issued
thereunder, or any takers or purchasers upon default thereunder.
This Bond is issued with the intent that the laws of the
State of Louisiana will govern its construction.
Exhibit H-1
Form of Notice of Proposed Transactions
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35- )
Filings Under the Public Utility Holding Company Act of 1935
("Act")
, 1995
Notice is hereby given that the following filings(s)
has/have been made with the Commission pursuant to provisions of
the Act and rules promulgated thereunder. All interested persons
are referred to the application(s) and/or declarations(s) for
complete statements of the proposed transactions(s) summarized
below. The application(s) and/or declaration(s) and any
amendments thereto is/are available for public inspection through
the Commission's Office of Public Reference.
Interested persons wishing to comment or request a
hearing on the application(s) and/or declarations(s) should
submit their views in writing by , 1995 to the Secretary,
Securities and Exchange Commission, Washington, D.C. 20549, and
serve a copy on the relevant applicant(s) and/or declarant(s) at
the address(es) specified below. Proof of service (by affidavit
or, in case of an attorney at law, by certificate) should be
filed with the request. Any request for hearing shall identify
specifically the issues of fact or law that are disputed. A
person who so requests will be notified of any hearing, if
ordered, and will receive a copy of any notice or order issued in
the matter. After said date, the application(s) and/or
declaration(s), as filed or as amended, may be granted and/or
permitted to become effective.
NOTICE OF PROPOSAL TO ISSUE AND SELL (i) UP TO $900
MILLION AGGREGATE PRINCIPAL AMOUNT OF THE COMPANY'S FIRST
MORTGAGE BONDS ("BONDS"), INCLUDING BONDS OF THE MEDIUM-TERM NOTE
SERIES ("MTNS"), AND/OR DEBENTURES ("DEBENTURES"), (ii) UP TO
$400 MILLION AGGREGATE STATED AMOUNT OF THE COMPANY'S PREFERRED
STOCK, CUMULATIVE, $100 PAR VALUE AND/OR PREFERRED STOCK,
CUMULATIVE, WITHOUT PAR VALUE, ("PREFERRED"), PREFERENCE STOCK,
WITHOUT PAR VALUE ("PREFERENCE"), AND/OR PREFERRED SECURITIES OF
A SPECIAL PURPOSE PARTNERSHIP OR TRUST CREATED BY THE COMPANY
("ENTITY INTERESTS"); AND (iii) UP TO $250 MILLION AGGREGATE
PRINCIPAL AMOUNT OF TAX-EXEMPT POLLUTION CONTROL BONDS ("TAX-
EXEMPT BONDS") OF GOVERNMENTAL AUTHORITIES ISSUED FOR THE BENEFIT
OF THE COMPANY AND WHICH MAY BE SECURED OR SUPPORTED BY DEBT
SECURITIES OF THE COMPANY AND/OR BANK LETTERS OF CREDIT AND/OR
INSURANCE ARRANGED FOR BY THE COMPANY, AND TO ACQUIRE BY
REDEMPTION, PURCHASE OR OTHERWISE OUTSTANDING SECURITIES ISSUED
BY OR FOR THE BENEFIT OF THE COMPANY.
Gulf States Utilities Company (70- )
Gulf States Utilities Company ("GSU"), 350 Pine Street,
Beaumont, Texas 77701, an electric utility subsidiary of Entergy
Corporation, a registered holding company, has filed an
application-declaration pursuant to Sections 6(a), 7, 9(a), 10
and 12(d) of the Act and Rules 23, 24, 42, and 44 thereunder.
GSU proposes to issue and sell not more than
$900,000,000 aggregate principal amount of one or more new series
of its first mortgage bonds ("Bonds") and/or one or more new sub-
series of the medium term note series of its first mortgage bonds
("MTNs") and/or one or more series of its debentures
("Debentures") from time to time through December 31, 2000. The
Bonds would be issued under GSU's Indenture of Mortgage, dated as
of September 1, 1926 and be secured pari passu with GSU's other
first mortgage bonds. The medium term note series of first
mortgage bonds was created in the Fifty-seventh Supplemental
Indenture to GSU's mortgage and is secured pari passu with other
first mortgage bonds issued thereunder. Debentures may be
secured or unsecured. Each series of Bonds, sub-series of MTNs
and/or series of Debentures will be sold at such price, will bear
interest at such rate or rates and will mature on such date (not
more than 40 years from the first day of the month of issuance)
and have such other terms as will be determined at the time of
sale. No series of Bonds, MTNs or Debentures will be sold if the
interest rate thereon would exceed the lower of 15% or those
rates generally obtainable at the time of pricing for sales of
comparable securities having the same maturity, issued by
companies of comparable credit quality and having similar terms,
conditions and features. The price, exclusive of accrued
interest, to be paid for each series of Bonds, MTNs and/or
Debentures will be within a range of 95% to 105% of the principal
amount of such series or sub-series. GSU requests an exception
from the Commission's Statement of Policy Regarding First
Mortgage Bonds (HCAR No. 13105, February 16, 1956, as modified by
HCAR No. 16369, May 8, 1969) ("Bond SOP") to the extent that the
provisions (or lack thereof) with respect to any series of Bonds,
sub-series of MTNs and/or Debentures deviate from the Bond SOP.
GSU further proposes to issue and sell, from time to
time through December 31, 2000, one or more new series of its
preferred stock, cumulative, $100 par value, its preferred stock,
cumulative, without par value (collectively, "Preferred") and/or
its preference stock, without par value, ("Preference"). The
total aggregate par or stated value of shares of the Preferred,
Preference, and Entity Interests may not exceed $400,000,000.
The price, exclusive of accumulated dividends, and the dividend
rate for each series of Preferred, and/or Entity Interests will
be determined at the time of sale. The price to be paid for any
series of Preferred, Preference to be sold will be not less than
par or stated value and not more than 102.75% or 103% thereof per
share, respectively, plus accumulated dividends, if any. The
price to be paid for any series of Entity Interests will be
within a range of from 95% to 105% of the stated value thereof.
No series of Preferred, Preference or Entity Interests would be
sold if the dividend rate thereon would exceed 15%. GSU requests
an exception from the Commission's Statement of Policy Regarding
Preferred Stock (HCAR No. 13106, February 16, 1956, as modified
by HCAR No. 16758, June 22, 1970) ("Stock SOP") to the extent
that the redemption provisions of any series of Preferred,
Preference or Entity Interest deviate from the Stock SOP.
Depending upon market conditions, GSU may sell one or more series
of Preferred having a par value of $100 to underwriters for
deposit with a bank or trust company ("Depositary"). The
underwriters would then receive from the Depositary and deliver
to the repurchasers in the subsequent public offering shares of
depositary preferred stock ("Depositary Preferred"), each
representing a stated fraction of a share of the new series of
Preferred. Depositary Preferred would be evidenced by depositary
receipts. Each owner of Depositary Preferred would be entitled
proportionally to all the rights and preferences of the series of
Preferred (including dividend, redemption and voting rights). A
holder of Depositary Preferred will be entitled to surrender
Depositary Preferred to the Depositary and receive the number of
whole shares of Preferred represented thereby. A holder of
Preferred will be entitled to surrender shares of Preferred to
the Depositary and receive a proportional amount of Depositary
Preferred.
GSU may issue one or more series of subordinated
debentures ("Entity Subordinate Debentures") to the issuer of the
Entity Interests (the "Issuing Entity"). The aggregate principal
amount of the Entity Subordinated Debentures is not included in
the aggregate amount of Bonds, MTNs and Debentures or the
aggregate par or stated amount of Preferred, Preference and
Entity Interests referred to above, but would not exceed the
aggregate stated amount of the Entity Interests to which such
Entity Subordinated Debentures relate.
GSU also states that certain terms applicable to the
Bonds, MTNs Debentures, Preferred and Preference contained in
GSU's existing mortgage, debenture indenture and charter deviate
from the Bond SOP and Stock SOP, and requests authorization of
such deviations. GSU states that it does not believe those
deviations are material.
GSU proposes to use the net proceeds derived from the
issuance and sale of Bonds, MTNs, Debentures, Entity Interests
Preferred and/or Preference for general corporate purposes,
including, but not limited to, the repayment of outstanding
securities when due and/or the possible redemption, acquisition
or refunding of certain outstanding securities prior to their
stated maturity or due date.
GSU states that it may sell the Bonds, MTNs,
Debentures, Entity Interests, Preferred and/or Preference
pursuant to competitive bidding, or, in the event that GSU
determines that it would be advantageous, by a negotiated public
offering or private placement thereof and/or a sale in the case
of MTNs by means of agency arrangements, or by direct placement
with purchasers.
GSU also proposes to enter into arrangements for the
issuance and sale of tax-exempt bonds ("Tax-Exempt Bonds") and in
connection therewith, GSU proposes, from time to time through
December 31, 2000, to enter into one or more arrangements and/or
supplements thereto (each a "Facilities Agreement"), pursuant to
which one or more governmental authorities ("Issuers") may issue
one or more series of Tax-Exempt Bonds under one or more
indentures ("Indenture") in an aggregate principal amount not to
exceed $250,000,000. The net proceeds from the sale of Tax-
Exempt Bonds will be used to finance or refund existing tax-
exempt securities issued to finance certain facilities including
but not limited to sewage and/or solid waste disposal or
pollution control facilities
The price to be paid to the Issuer(s) for each series
of Tax-Exempt Bonds and the interest rate, maturity and other
applicable thereto will be determined at the time of sale. No
series of Tax-Exempt Bonds would be sold if the fixed interest
rate or initial adjustable interest rate thereon would exceed
13%, or if subsequent interest rates for adjustable interest rate
Tax-Exempt Bonds would exceed 13%. The Tax-Exempt Bonds will
mature not earlier than one year nor later than 40 years from the
date of issuance. Each series may be subject to redemption
and/or sinking fund provisions.
GSU may arrange for one or more irrevocable letter(s)
of credit from a bank, in favor of the trustee for one or more
series of Tax-Exempt Bonds. GSU would enter into a letter of
credit and reimbursement agreement ("Reimbursement Agreement")
with the bank under which GSU would agree to reimburse the bank
for amounts drawn under the letter of credit and to pay certain
fees, including up-front fees.
In addition, or as an alternative to a letter of
credit, GSU may (1) provide an insurance policy for one or more
series of Tax-Exempt Bonds, and/or (2) obtain authentication of
one or more new series of its First Mortgage Bonds, MTNs or
Debentures ("Collateral Bonds") to be issued under GSU's mortgage
and delivered to the trustee or the bank to evidence and support
GSU's obligations under the Equipment Lease or the Reimbursement
Agreement. The terms of the Collateral Bonds will correspond to
the terms of the related Tax-Exempt Bonds. The maximum amount of
the Collateral Bonds would be $275,000,000, and the Collateral
Bonds would be included in the $900 million aggregate limitation
on the Bonds, MTNs and/or Debentures specified above.
GSU proposes to use the proceeds from the sale of the
Bonds, MTNs, Debentures, Preferred, Preference and/or Tax-Exempt
Bonds, together with other available funds to acquire, through
tender offers or otherwise, at any time, or from time to time,
through December 31, 2000, in whole or in part, prior to their
respective maturities, certain of its outstanding securities
including but not limited to (1) one or more series of GSU's
outstanding First Mortgage Bonds or sub-series of MTNs, (2) one
or more series of GSU's outstanding Preferred Stock, (3) one or
more series of outstanding tax-exempt bonds heretofore issued for
the benefit of GSU, (4) GSU's outstanding series of Debentures,
and/or (5) GSU's outstanding series of Preference Stock.
GSU states that it shall not use the proceeds from the
sale of Bonds, MTNs, Debentures, Entity Interests, Preferred
Preference and/or Tax-Exempt Bonds to enter into refinancing
transactions unless: (1) the estimated present value savings
derived from the net difference between interest or dividend
payments on a new issue of comparable securities and those
securities refunded is, on an after-tax basis, greater than the
present value of all repurchasing, redemption, tendering and
issuing costs, assuming an appropriate discount rate, determined
on the basis of the then estimated after-tax cost of capital of
GSU; or (2) GSU shall have notified the Commission of the
proposed refinancing transaction (including the terms thereof)
and obtained appropriate authorization to consummate the
transaction.
For the Commission, by the Division of Investment
Management, pursuant to delegated authority.
Jonathan G. Katz
Secretary
Exhibit I-1
M E M O R A N D U M
October 13, 1995
RE: Gulf States Utilities Company Reconciliation of
Indenture of Mortgage with Statement of Policy
The following is a comparison of the terms of the
Indenture of Mortgage, dated September 1, 1926, as supplemented
("Mortgage"), executed by Gulf States Utilities Company
("Company" or "GSU") to The Chase National Bank of the City of
New York (to which Chemical Bank is now successor), as Trustee,
with the provisions of the Statement of Policy Regarding First
Mortgage Bonds Subject to the Public Utility Holding Company Act
of 1935, as amended (the "Statement"). The Statement, as
originally adopted in 1956 (Rel. No. 35-13105), was applicable to
applications or declarations filed under the Public Utility
Holding Company Act ("PUHCA") after March 31, 1956. Effective May
8, 1969 (Rel. No. 35-16369), the Securities and Exchange
Commission (the "Commission") adopted a modification of the
policies in the Statement regarding redemption provisions.
While historically conformity with the Statement was
generally required, with deviations permitted in appropriate
circumstances, Commission has more recently termed the Statement
"anachronistic in today's financial markets" (SEC Release No. 35-
25059 (1990)); has increasingly permitted deviations from the
Statement on a case-by-case basis. (See, e.g., Release No. 35-
25573 (1992); Louisiana Power & Light Company, Release No. 35-
25279 (1991)); and has described the statement as a hindrance to
the ability of registered holding companies to raise capital (see
Report of the Division of Investment Management on the Regulation
of Public-Utility Holding Companies (June 1995), at page 48).
Moreover, the SEC, in promulgating recent amendments to
Rule 52 under PUHCA (which affords an exemption from Sections
6(a) and (7) of PUHCA for, among other things, the issuance and
sale of securities issued by public-utility subsidiary companies
of registered holding companies where the transaction has been
authorized by the appropriate state commission), reaffirmed its
prior view that the Statement is "no longer relevant to
contemporary financial markets", and eliminated the requirement
of compliance with the Statement as a condition to the exemption
afforded by the Rule (SEC Release No. 35-25573 (1992)). For
those companies not entitled to use Rule 52 for the issuance and
sale of their securities (for example, because the applicable
state commission does not exercise securities issuance
jurisdiction), the SEC stated that it would continue to permit,
on a case-by-case basis, the issuances of securities that do not
conform to the Statement.
Although GSU consummated a combination transaction with
Entergy Corporation on December 31, 1993, GSU, a Texas
Corporation, continues to be subject to the jurisdiction of the
Louisiana Public Service Commission, the Public Utilities
Commission of Texas and, in certain respects, various Texas
municipalities. However, none of these regulatory bodies has, or
will have, jurisdiction over the proposed issuance and sale by
GSU of its securities. Accordingly, the exemptive provisions of
Rule 52 will not be available to GSU and, therefore, the
Statement technically will remain applicable to GSU.
The comparison given below is in outline form and
organized to reflect the principal subject matters included in
the Statement. The references are to sections of the modified
Mortgage contained in the Seventh Supplemental Indenture, dated
as of May 1, 1946.
Redemption Provisions Generally
1. The Statement, as modified in 1969, provides that
bonds should be callable by the obligor for redemption at any
time subject to no more than a five-year refunding limitation,
upon reasonable notice and with reasonable redemption premiums.
Not all the bonds now outstanding under the Mortgage may be
redeemed. While the Mortgage contains the specific terms upon
which redeemable series of bonds may be redeemed, it ordinarily
requires not less than thirty days' notice prior to a date fixed
for redemption. Although the Statement does not specify what
constitutes reasonable notice, the Commission has frequently
interpreted such notice provision as being adequate with regard
to the Statement.
Issuance of Additional Bonds
2. The Statement, in subdivision (a)(1), allows a
principal amount of bonds to be issued upon the deposit of a like
amount of cash. Section 5.05 of the Mortgage complies with this
provision.
3. The Statement, in subdivision (a)(2), allows a
principal amount of bonds to be issued equal to a like principal
amount of retired bonds. Section 5.06 of the Mortgage generally
complies with this provision.
4. The Statement, in subdivision (a)(3), allows a
principal amount of bonds to be issued equal to 60% of the
bondable value of net property additions. Section 5.04 of the
Mortgage generally complies with this provision.
5. The earnings test requirement described in
subdivision (a) of the Statement is complied with pursuant to the
provisions of Sections 1.09, 5.04, 5.05 and 5.06 of the Mortgage.
It should be noted, however, that the Mortgage does not permit
refunding at a higher interest rate without meeting an earnings
test, although the Statement would permit such a refunding within
two years of maturity.
Sinking and Improvement Fund
6. Various series of outstanding bonds have sinking or
improvement fund provisions similar but not identical to those
required by the Statement. Future indentures supplemental to the
Mortgage may include such provisions for new series of bonds.
Maintenance and Replacement Fund
7. The provisions in the Mortgage relating to the
Maintenance and Replacement Fund are similar but not identical to
the requirement of the Statement. The Mortgage provides that the
Company will pay or deliver to the Trustee on or before April 1
of each year, an amount in cash, bonds, or refundable
indebtedness equal to the amount of the minimum provision for
depreciation (10% of operating revenues less the cost of gas and
electricity purchased for resale and certain other deductions,
after deducting from such percentage the amount expended for
maintenance and repairs) for the preceding calendar year, less
certain credits for property additions, debt retirements and
waivers of the right to authentication of bonds. The Company may
at any time substitute such cash or credits, one for another, on
similar bases. The Company may also have any of such cash
applied to the redemption of bonds which are then subject to
redemption or to the purchase of bonds or refundable
indebtedness. As long as certain series of bonds remain
outstanding, no bonds or refundable indebtedness so redeemed or
purchased may be used as the basis for the issue of additional
bonds, the release of properties or the withdrawal of cash from
the trust estate unless and until requisite cash or property
additions shall have been substituted therefor. (Section 4.04.)
The Company's obligations with respect to the Maintenance and
Replacement Fund shall terminate on June 2, 2010, unless the
requisite consents to eliminate this obligation shall have been
earlier obtained from the holders of the bonds of other series.
Limitation on Dividends
8. The Mortgage includes a dividend restriction
embodying concepts similar to those reflected in the Statement.
Specifically, it provides that so long as any bonds remain
outstanding, the Company will not declare any dividend (other
than dividends payable in common stock of the Company) on any
shares of its common stock, unless such dividend is declared to
be payable within 60 days after the date of declaration thereof
and, further, it will not (a) declare any such dividend or make
any other distribution on any shares of its common stock, or (b)
purchase or otherwise retire for a consideration (other than in
exchange for or from the proceeds of other shares of capital
stock of the Company) any shares of its common stock, if the
aggregate amount so declared, distributed or expended after
December 31, 1945, would exceed the aggregate of the net income
of the Company available for dividends on its common stock
accumulated after December 31, 1945, to and including a date not
earlier than the end of the second calendar month preceding the
date of declaration in the case of a dividend and the date of
payment in any other case, plus the sum of $378,000 (Section
9.10; also Section 1.06 of the Fifty-fourth Supplemental
Indenture).
Property Additions Subject to a Prior Lien and Prior Lien
Obligations
9. Under the Mortgage, property subject to any prior
lien cannot constitute property additions for use as a basis of a
credit under the Mortgage, unless such lien is established as a
refundable lien and (1) the principal amount of the outstanding
indebtedness secured by such prior lien will not exceed 60% of
the amount of the property subject thereto, (2) the total
principal amount of prior lien indebtedness to be outstanding
will not exceed 15% of the total principal amount of bonds then
outstanding and bonds which the Company would then be entitled to
have authenticated and delivered, and (3) the principal amount of
prior lien indebtedness being established as refundable will not
exceed 60% of available net additions (Section 2.01). This
provision is similar to but not identical to the provisions of
the Statement.
10. The Mortgage does not contain any provision
permitting the use of prior lien obligations upon the deposit
thereof with the Trustee, or their retirement, for the same
purposes under the Mortgage that retired bonds may be used. Such
a provision would be permitted by subdivision (k) of the
Statement.
Definitions and Miscellaneous Provisions of the Statement
11. The provisions of subdivision (l) of the
Statement, to the effect that only the cost or fair value of
property additions, whichever is less, may be used under an
indenture, is substantially complied with (primarily in Sections
1.06 and 5.04 of the Mortgage).
12. The provisions of subdivision (n) of the
Statement, to the effect that duplicate credits generally may not
be taken with respect to property additions, cash, bonds, retired
bonds, prior lien obligations and other property under an
indenture, are complied with (primarily in Section 2.01 of the
Mortgage).
13. The provisions of subdivision (o) of the
Statement, to the effect that bonds authenticated and delivered
under an indenture and prior lien obligations which, in either
case, have been retired with money or other property,
constituting funded property, may not be used for any purpose,
are complied with (primarily in Section 2.04 of the Mortgage).
14. The restriction on the use of retired bonds
contained in subdivision (p) of the Statement is complied with
(primarily in Section 5.06 of the Mortgage).
15. The provisions of subdivision (q) of the
Statement, regarding the calculation of net earnings, are
substantially complied with (primarily in Section 1.09 of the
Mortgage). However, the amount of net earnings that may be from
other income (net) is combined with revenues obtained from the
operation of property not included in the trust estate and the
limitation on this combined amount is 15% of the total of net
earnings available for interest, including such restricted income
and revenues. The Statement, on the other hand, provides only
for a restriction on the amount of other income to be included in
the calculation of net earnings, and limits other income to not
more than 10% of net earnings before the addition of such other
income.
16. With reference to subdivision (r) of the
Statement, GSU's provisions for depreciation have been, and are
anticipated to be, sufficient to depreciate its depreciable
properties over their estimated useful lives.
17. The provisions of the Mortgage generally do not
contemplate the use of consolidated data as permitted in
appropriate cases by subdivision (v) of the Statement.
18. None of the provisions of the Mortgage are in
contravention of the provisions deemed to be included pursuant to
Sections 310 through 317 of the Trust Indenture Act of 1939.
Accordingly, subdivision (w) of the Statement is complied with.
Exhibit I-2
M E M O R A N D U M
October 13, 1995
RE: Comparison of Gulf States Utilities Company's
Articles of Incorporation with the Statement of
Policy Regarding Preferred Stock Subject to the
Public Utility Holding Company Act of 1935
This memorandum compares the provisions of the Restated
Articles of Incorporation, as amended ("Articles"), of Gulf
States Utilities Company ("GSU" or the "Company"), relating to
the terms of its Preferred and Preference Stocks, with the
provisions of the Statement of Policy Regarding Preferred Stock
Subject to the Public Utility Holding Company Act of 1935 (the
"Statement") (Release Nos. 35-13106 (1956) and 35-16758 (1970)).
While, historically, conformity with the Statement was
generally required in connection with filings under the Public
Utility Holding Company Act of 1935 ("PUHCA") pursuant to
sections 6 and 7 (with deviations permitted in appropriate
circumstances), the Securities and Exchange Commission ("SEC")
has recently termed the Statement "anachronistic in today's
financial markets" (Release No. 35-25059 (1990)); has
increasingly permitted deviations from the Statement on a case-by-
case basis. (See, e.g., Release No. 35-25573 (1992); Jersey
Central Power & Light Company, Release No. 35-25073 (1990)); and
has described the Statement as a hindrance to the ability of
registered holding companies to raise capital (see Report of the
Division of Investment Management on the Regulation of Public-
Utility Holding Companies (June 1995), at page 48).
Moreover, the SEC has recently promulgated amendments
to Rule 52 under PUHCA, which affords an exemption from sections
6(a) and (7) of PUHCA for, among other things, the issuance and
sale of securities issued by public-utility subsidiary companies
of registered holding companies where the transaction has been
authorized by the appropriate state commission. In so doing, the
SEC reaffirmed its prior view that the Statement is "no longer
relevant to contemporary financial markets", and eliminated the
requirement of compliance with the Statement as a condition to
the exemption afforded by the Rule. (Release No. 35-25573
(1992).) For those companies, not entitled to use Rule 52 for
the issuance of their securities (for example, because the
applicable state commission does not exercise securities issuance
jurisdiction), the SEC stated that it would continue to permit,
on a case-by-case basis, issuances of securities that do not
conform to the Statement.
Although GSU consummated a combination transaction with
Entergy Corporation on December 31, 1993, GSU, a Texas
corporation, continues to be subject to the jurisdiction of the
Louisiana Public Service Commission, the Public Utilities
Commission of Texas and, in certain respects, various Texas
municipalities. However, none of these regulatory or
governmental bodies has, or will have, jurisdiction over the
proposed issuance and sale by GSU of its securities.
Accordingly, the provisions of Rule 52 will not be available to
GSU and, therefore, the Statement technically will remain
applicable to GSU.
GSU's Capitalization
GSU's Articles provide for four classes of authorized
capital stock consisting of 200,000,000 shares of Common Stock,
without par value; 6,000,000 shares of Preferred Stock, $100 par
value; 10,000,000 shares of Preferred Stock, without par value;
and 20,000,000 shares of Preference Stock, without par value. As
of June 30, 1995, 100 shares of the Common Stock, ____ shares of
the $100 par value Preferred Stock and 6,000,000 shares of
Preference Stock, without par value, were issued and outstanding.
No shares of Preferred Stock without par value were issued and
outstanding at that date.
Set forth below in outline form is a summary of the
provisions of the Statement and of the related provisions of
GSU's Articles. The Articles in many respects are in substantial
compliance with the Statement. Where material deviations exist,
they are noted. (References to the appropriate provisions of the
Articles are noted in parentheses.)
Cumulative Dividends; Reasonable Redemption Premiums and
Reasonable Notice of Redemption
The opening portion of the Statement provides that
dividends on Preferred Stock shall be cumulative. GSU's Articles
are consistent with this standard. (Article VI, 2 and 9.)
The Statement also provides that Preferred Stock shall
be callable for redemption at any time by the issuer upon
reasonable notice of redemption and the payment of reasonable
redemption premiums. GSU's Articles are consistent with this
requirement. While the Statement does not define "reasonable
notice", GSU's Articles specify that, for both the Preferred and
Preference Stocks, notice of redemption must be given between
thirty and sixty days prior to the date fixed for redemption, by
publication, at least once, in an English-language newspaper of
general circulation published each business day in Beaumont,
Texas and the Borough of Manhattan. GSU also has the option to
mail such notice personally to the holders of record of its
Preferred and Preference Stocks. (Article VI, 4 and 11.)
These provisions would appear to satisfy the Statement's standard
of "reasonable notice".
With respect to the optional redemption premiums, all
outstanding series of the $100 par value Preferred Stock are
redeemable at the option of GSU upon payment of the redemption
prices specified in respect of each series, which reflect, among
other things, market conditions in effect at the time of the
creation and issuance of each such series. Moreover, all
financial restrictions upon optional redemption have expired.
(Article VI, 4 and 11.)
Rights of Holders of the Preferred Stock to Elect Directors
The Statement provides that if dividends are in arrears
in an amount equal to four or more quarter-yearly payments, the
holders of all series of Preferred Stock as a class are entitled
to elect the smallest number of directors necessary to constitute
a majority of the entire board of directors until such time as
all arrearages have been paid or provided for. Such election of
directors is to be made at a meeting to be held between 45 and 90
days after the accrual of this right.
GSU's Articles are substantially consistent with these
provisions of the Statement. In the event the Company fails to
make any quarterly Preferred Stock dividend payment, and that
failure continues beyond the fourth succeeding quarterly dividend
payment date, holders of Preferred Stock, voting as a single
class for this purpose, have the right to elect a majority of the
board, and that right continues until all dividends accrued and
payable are made current. Similar provision is made for the
holders of Preference Stock, voting as a separate class, to elect
two directors, upon the failure of the Company to have made any
quarterly dividend payment, which failure continues beyond the
sixth succeeding quarterly dividend payment date. For both the
Preferred and Preference Stocks, the Articles provide for the
election of directors at any time after the accrual of the right.
(Article IV, 6 and 13.)
Issuance of Securities Representing Unsecured Debt
The Statement provides for the consent of the holders
of a majority of the outstanding shares of Preferred Stock before
an issuer may issue unsecured debt in excess of specified
amounts. GSU's Articles do not restrict the issuance of
unsecured debt.
Limitation on Junior Stock Dividends
In general, the Statement restricts an issuer's
declaration of dividends on stock that is ranked below the
Preferred Stock as to dividends or assets, such as preference
stock or common stock (collectively referred to in the Statement
as "junior stock"), as follows: (a) if the junior stock equity,
as defined, is less than 20% of the company's total
capitalization, as defined, (or if the declaration of the
dividend would result in the company's junior stock equity being
less than 20% of total capitalization), then the company may not
declare junior stock dividends which, when aggregated with all
other junior stock dividends paid within the twelve-month period
prior to the month in which the dividend is to be declared, would
exceed 50% of the company's net income available for junior stock
dividends for the twelve-month period prior to the month in which
the dividend is declared; and (b) if the company's junior stock
equity is between 20% and 25% of its total capitalization (or if
the declaration of the dividend would result in the company's
junior stock equity being between 20% and 25% of its total
capitalization), then the company may not declare junior stock
dividends which, when aggregated with all other junior stock
dividends paid within the twelve-month period prior to the month
in which the dividend is to be declared, would exceed 75% of the
company's net income available for junior stock dividends for the
twelve-month period prior to the month in which the dividend is
declared.
GSU's Articles restrict dividends on Common Stock, and
reflect concepts similar to those embodied in the Statement.
Specifically, Common Stock dividends may not be declared if the
total amount of dividends on the Common Stock paid after May 31,
1958 would be greater than either (a) the net income of the
corporation available for Common Stock dividends; or (b) 75% of
the net income available for Common Stock dividends, if the total
of (1) the Common Capital Stock Account, (2) the Earned Surplus
Account and (3) the Capital Surplus Account, is less than 25% of
the total of (i) the principal amount of debt, (ii) the
Preferred, Preference and Common Capital Stock Accounts, (iii)
the Earned Surplus Account and (iv) the Capital Surplus Account.
(Article VI, 14.) There are no similar restrictions on the
declaration of dividends on the Preference Stock.
Merger or Consolidation
The Statement prohibits an issuer from merging or
consolidating with or into another company, or from disposing of
all or substantially all of its assets unless ordered or approved
under PUHCA or unless a majority of the total number of shares of
Preferred Stock outstanding consents to such transaction.
GSU's Articles with respect to the Preferred Stock
comply with this standard. (Article VI, 5(g).) There is no
similar provision for the Preference Stock.
Alteration of Preferred Stock Provisions
Under the Statement, the consent of the holders of at
least two-thirds of the total number of shares of Preferred Stock
outstanding is required for any amendment, alteration or repeal
of the rights, preferences or powers of the Preferred Stock so as
to adversely affect the holders thereof. GSU's Articles are
substantially consistent with this provision. (Article VI,
5(d) and 12(c).)
Issuance of Additional Preferred Stock
The Statement limits the creation or authorization of
any stock with a rank senior to the Preferred Stock without the
consent of two-thirds of the total number of outstanding shares
of Preferred Stock, and similarly prohibits, without such
consent, the issuance of such senior stock more than twelve
months after the date the company was empowered to create such
senior stock.
GSU's Articles are in substantial compliance with these
provisions, except that they do not limit the period of time in
which senior stock may be issued following shareholder consent.
(Article VI, 5(a) and 12(a).)
The Statement also provides for a majority vote of the
outstanding Preferred Stock before an issuer may issue additional
Preferred Stock (with certain exceptions) unless the following
two conditions are satisfied: (a) for twelve consecutive months
within a period of fifteen months immediately prior to the
issuance, the company's gross income is at least equal to 1 1/2
times the annual interest charges on the company's debt and the
annual dividend requirements on the company's Preferred Stock to
be outstanding; and (b) the company's junior stock equity, at a
minimum, equals the amount to be paid on the Preferred Stock and
stock ranking prior to or on a parity with the Preferred Stock,
upon an involuntary liquidation of the company. Further, if for
purposes of satisfying the test in (b) above, the company is
required to take into account any earned surplus, then it may not
pay dividends or acquire junior stock which would reduce the
junior stock equity to less than the amount payable on the
Preferred Stock and all equal and prior ranking stock upon
involuntary liquidation of the company.
GSU's Articles provide, among other things, that the
Company shall not, without the affirmative vote of a majority of
the total number of shares of each class of Preferred Stock then
outstanding (one third or more of the total number of such shares
of each such class not having voted in the negative) issue
additional shares of Preferred Stock unless two earnings tests
are met. These earnings tests require that: (i) the net income
of the Company available for dividends, for the specified twelve-
month period, be at least 2 1/2 times the annual dividend
requirements on all Preferred Stock and all other prior and
equally ranking stock to be outstanding immediately after the
proposed issuance; and (ii) the Company's earnings available for
interest, amortization and dividends be at least 1 1/2 times the
annual interest requirements on all indebtedness and the annual
dividend requirements on all Preferred Stock and all other prior
and equally ranking stock to be outstanding immediately after the
proposed issuance. The Articles do not contain the
capitalization restriction described in (b) above. (Article VI,
5(f).)
There are no earnings or capitalization restrictions
with respect to the issuance by GSU of its Preference Stock.
Acquisition or Redemption of Preferred Stock
The Statement provides for SEC approval under PUHCA for
an acquisition of Preferred Stock if the company is in arrears as
to dividends on the Preferred Stock, unless all shares of
Preferred Stock are to be redeemed. GSU's Articles contain no
such provision for either the Preferred or Preference Stocks.
Voluntary Liquidation Preference
The Statement provides that in the case of a voluntary
liquidation the amount to be paid to each Preferred Stock holder
is the current redemption price of each share. GSU's
Articles provide that the holders of Preferred and Preference
Stock are entitled to receive, upon voluntary liquidation, the
fixed liquidation price plus the fixed liquidation premium, if
any, established for the respective series thereof, in each case
together with a sum equal to all dividends accrued or in arrears
thereon. These provisions are in substantial conformity with the
Statement. (Article VI, 3 and 10.)
Miscellaneous
The Statement permits the use of consolidated data "in
appropriate cases". GSU's Articles are silent on this point.
The Statement also specifies that a share of Preferred
Stock is not to be deemed "outstanding" for various purposes if
its redemption has been provided for. GSU's Articles are
consistent with this provision. (Article VI, 4 and 11.)
Other Provisions
GSU's Articles contain other deviations from the
Statement in a number of minor respects which, singly and in the
aggregate, are not deemed material.
