File No. 70-8487
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________________________________
Amendment No. 2
to the
Form U-1/A
__________________________________
APPLICATION-DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
__________________________________
Louisiana Power & Light Company
639 Loyola Avenue
New Orleans, Louisiana 70113
(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)
__________________________________
John J. Cordaro Gerald D. McInvale
President Senior Vice President and
Louisiana Power & Light Company Chief Financial Officer
639 Loyola Avenue Entergy Services, Inc.
New Orleans, Louisiana 70113 639 Loyola Avenue
New Orleans, Louisiana 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. David P. Falck, Esq.
Denise C. Redmann, Esq. Winthrop, Stimson, Putnam & Roberts
Steven McNeal One Battery Park Plaza
Entergy Services, Inc. New York, New York 10004
639 Loyola Avenue
New Orleans, Louisiana 70113
Thomas J. Igoe, Jr., Esq.
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
<PAGE>
Item 1. Section C. Issuance and Sale of Tax-Exempt Bonds and
Related Transactions. Section C, paragraphs 1, 2, 3, 6, 8,
9, 14 and 16 are hereby amended in their entirety to read
as follows:
1. The Company also may seek to enter into
arrangements to reimburse the Company for the costs of,
or to finance or refinance, on a tax-exempt basis, the
acquisition, construction, installation and equipping
of certain pollution control facilities including solid
waste and/or sewage disposal and/or pollution control
facilities ("Facilities") at (a) Units 1 and 2 (gas)
and 3 (nuclear) of the Company's Waterford Steam
Electric Generating Station ("Waterford") in the Parish
of St. Charles, Louisiana, or the Company's Little
Gypsy Steam Electric Generating Station ("Little
Gypsy") in the Parish of St. Charles, Louisiana, (b)
Units 6 and 7 of the Company's Sterlington Plant
("Sterlington") in the Parish of Ouachita, Louisiana,
or (c) Units 1-5 (gas) of the Company's Ninemile Point
Plant ("Ninemile Point") in the Parish of Jefferson,
Louisiana (collectively, St. Charles Parish, Ouachita
Parish and Jefferson Parish all referred to as the
"Parish"). The Company proposes to enter into one or
more installment sale, lease or other facilities
agreements and possibly one or more supplements and/or
amendments thereto (collectively, the "Facilities
Agreement"), or to enter into one or more refunding
agreements and possible supplements and/or amendments
thereto (collectively, the "Refunding Agreement") with
the Parish for the issuance and sale by the Parish of
one or more series of Tax-Exempt Bonds in an aggregate
principal amount not to exceed $65 million pursuant to
one or more trust indentures and possibly one or more
supplements thereto (collectively, the "Indenture")
between the Parish and one or more trustees
(collectively, the "Trustee").
2. The proceeds of the sale of Tax-Exempt Bonds, net
of any underwriters' discounts or other expenses
payable from proceeds, will be deposited by the Parish
with the Trustee under the Indenture. Such net
proceeds will be applied to reimburse the Company for,
or to permanently finance on a tax-exempt basis, the
costs of the acquisition, construction, installation or
equipping of, that portion of the Facilities not
previously financed by revenue bonds of the Parish, and
additional costs of construction of the Facilities or
to refinance outstanding revenue bonds issued for that
purpose. Further, under the Facilities Agreement the
Company would transfer the Facilities to the Parish,
and will reacquire the Facilities from the Parish for a
price sufficient (together with any other moneys held
by the Trustee under the Indenture and available for
the purpose for the particular series of Tax-Exempt
Bonds involved) to pay the principal or purchase price
of, the premium, if any, and the interest on such
series of Tax-Exempt Bonds as the same become due and
payable. Further, under the Refunding Agreement, the
Company will agree to pay the principal or redemption
price of, the premium, if any, and the interest on such
series of Tax-Exempt Bonds as the same become due and
payable. Such payments will be paid by the Company
directly to the Trustee pursuant to the Indenture.
Under both the Facilities Agreement and the Refunding
Agreement, the Company will also be obligated to pay
(i) the fees and charges of the Trustee and any
registrar or paying agent under the Indenture, and, if
any, the Remarketing Agent and the Tender Agent
hereinafter referred to, (ii) all expenses incurred by
the Parish in connection with its rights and
obligations under the Facilities Agreement or Refunding
Agreement, (iii) all expenses necessarily incurred by
the Parish or the Trustee under the Indenture in
connection with the transfer or exchange of Tax-Exempt
Bonds, and (iv) certain other fees and expenses.
3. The Indenture may provide that, upon the
occurrence of certain events relating to the operation
of Waterford, Sterlington, Ninemile Point, Little Gypsy
or construction or operation of the Facilities,
Tax-Exempt Bonds will be redeemable by the Parish at
the direction of the Company. Any series of Tax-Exempt
Bonds may be made subject to a mandatory cash sinking
fund under which stated portions of Tax-Exempt Bonds of
such series are to be retired at stated times.
Tax-Exempt Bonds may be subject to mandatory redemption
in certain other cases. The payments by the Company 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
or purchase price of all Tax-Exempt Bonds to be
redeemed or retired and, the premium, if any, thereon,
together with interest accrued or to accrue to the
redemption date on such Tax-Exempt Bonds.
6. The Facilities Agreement or Refunding Agreement
and the Indenture may provide for a fixed interest rate
for one or more series of Tax-Exempt Bonds and/or for
an adjustable interest rate for one or more series of
Tax-Exempt Bonds as hereinafter described. No series
of Tax-Exempt Bonds will be sold if the fixed interest
rate or initial adjustable interest rate thereon would
exceed 15%. As to series having an adjustable interest
rate, the interest rate for Tax-Exempt Bonds of such
series during the first Rate Period (hereinafter
referred to) would be determined in discussions between
the Company and the purchasers of such series from the
Parish and be based on the current tax-exempt market
rate for comparable bonds having a maturity comparable
to the length of the initial Rate Period. Thereafter,
for each Rate Period, the interest rate on such
Tax-Exempt Bonds would be that rate which would be
sufficient to remarket all tendered Tax-Exempt Bonds of
such series at their principal amount. Such subsequent
interest rates would not be greater than rates
generally obtained at the time of remarketing of tax-
exempt bonds having the same maturity, issued for the
benefit of companies of comparable credit quality and
having comparable credit terms and would not exceed a
specified maximum rate that will not be greater than
15%. Paragraphs 7 through 10 below relate to Tax-
Exempt Bonds having an adjustable interest rate.
8. The Facilities Agreement or Refunding Agreement
and the Indenture may provide that holders of Tax-
Exempt Bonds would have the right to tender or be
required to tender their Tax-Exempt Bonds and have them
purchased 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 Indenture. A Tender Agent may be appointed
to facilitate the tender of any Tax-Exempt Bonds by
holders. Any holders of Tax-Exempt Bonds wishing to
have such Tax-Exempt Bonds purchased may be required to
deliver such Tax-Exempt Bonds 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 offer such tendered Tax-Exempt Bonds
for sale.
9. Under the Facilities Agreement and the Refunding
Agreement, the Company would be obligated to pay
amounts equal to the amounts to be paid by the
Remarketing Agent or the Tender Agent pursuant to the
Indenture for the purchase of Tax-Exempt Bonds 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; provided, however, that
the obligation of the Company to make any such payment
under the Facilities Agreement or Refunding Agreement
would be reduced by the amount of any other moneys
available therefor, including the proceeds of the sale
of such tendered Tax-Exempt Bonds by the Remarketing
Agent.
14. In addition or as an alternative to the security
provided by a letter of credit, in order to obtain a
more favorable rating on Tax-Exempt Bonds and
consequently improve the marketability thereof, the
Company may (a) determine to provide 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) provide security for
holders of Tax-Exempt Bonds and/or the Bank equivalent
to the security accorded to holders of First Mortgage
Bonds outstanding under the Company's Mortgage by
obtaining the authentication of and pledging one or
more new series of First Mortgage Bonds ("Collateral
Bonds") under the Mortgage as it may be supplemented.
Collateral Bonds would be issued on the basis of
unfunded net property additions and/or previously-
retired First Mortgage Bonds and delivered to the
Trustee under the Indenture and/or to the Bank to
evidence and secure the Company's obligation to pay the
purchase price of the Facilities and the Company's
obligation to reimburse the Bank under the
Reimbursement Agreement. These Collateral Bonds could
be issued in several ways. First, if Tax-Exempt Bonds
bear a fixed interest rate, Collateral Bonds could be
issued in a principal amount equal to the principal
amount of such Tax-Exempt Bonds and bear interest at a
rate equal to the rate of interest on such Tax-Exempt
Bonds. Secondly, they could be issued in a principal
amount equivalent to the principal amount of such
Tax-Exempt Bonds plus an amount equal to interest on
those Bonds for a specified period. In such a case,
Collateral Bonds would bear no interest. Thirdly,
Collateral Bonds could be issued in a principal amount
equivalent to the principal amount of such Tax-Exempt
Bonds or in such amount plus an amount equal to
interest on those Bonds for a specified period, but
carry a fixed interest rate that would be lower than
the fixed interest rate of the Tax-Exempt Bonds.
Fourthly, they could be issued in a principal amount
equivalent to the principal amount of Tax-Exempt Bonds
at an adjustable rate of interest, varying with such
Tax-Exempt Bonds but having a "cap" (not greater than
15%) above which the interest on Collateral Bonds could
not rise. For further information with respect to the
Facilities Agreement, the Refunding Agreement, the
Collateral Bonds, the Reimbursement Agreement, and
insurance policy and provisions reference is made to
Exhibits A-3, A-5, B-6, B-12, B-13 and B-14.
16. For further information with respect to the terms
of the Facilities Agreement, Refunding Agreement and
Indenture, reference is made to Exhibits B-5, B-6, B-7
and B-12.
Item 3. Applicable Statutory Provisions
Section A. Bonds, Debentures, Entity Interests and
Preferred
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 Bonds, Debentures,
Entity Interests and Preferred, 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 either
general partnership interests (in the case of a limited
partnership) or common securities (in the case of a business
trust) 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 partnership interests in the
Issuing Entity, and the Issuing Entity's acquisition of the
Entity Subordinated Debentures and the Guaranty.
Section B. Tax Exempt Financing. Item 3, Section B, Tax
Exempt Financing is hereby amended to read as follows:
The Sections of the Holding Company Act and the rules
thereunder which the Company considers may be applicable to
the tax-exempt financing of the Facilities are set forth
below:
(i) Disposition of the Section 12(d) and
Facilities Rule 44
(ii) Reacquisition of Sections 9(a) and
the Facilities 10
(iii) Refunding Agreement Sections 6(a) and
7
(iv) Reimbursement Sections 6(a) and
Agreement 7
(v) Issuance and Pledge Sections 6(a) and
of Collateral Bonds 7
Item 5. Procedure. The last sentence of the first paragraph of
Item 5 is amended in its entirety to read as follows:
The Company consents that the Commission's order authorizing
the above transactions contains reservations of jurisdiction over
(i) the proposed issuance and sale of Preferred Stock, (ii) the
proposed issuance and sale of Debentures and Entity Interests,
(iii) the execution and performance under any Reimbursement
Agreement underlying any Letter of Credit issued as security for
the Company's obligations in connection with the issuance and
sale of Tax-Exempt Bonds, and (iv) the provision of an insurance
policy for the Company's obligations in connection with the
issuance and sale of Tax-Exempt Bonds, in each instance pending
completion of the record thereto.
Item 6. Exhibits and Financial Statements
Section A. Exhibits
A-2 Proposed form(s) of additional Supplemental
Indenture(s) relating to the Bonds.
A-3 Proposed form(s) of additional Supplemental
Indenture(s) relating to the Collateral Bonds.
A-4 Proposed form(s) of Bond.
A-5 Proposed form(s) of Collateral Bond.
A-10 Proposed form(s) of Debenture Indenture.
A-11 Proposed form(s) of Debenture.
A-12 Proposed form(s) of Subordinated Debenture
Indenture.
A-13 Proposed form(s) of Subordinated Debenture.
A-14 Proposed form(s) of Entity Subordinated
Debenture Indenture.
A-15 Proposed form(s) of Entity Subordinated
Debenture.
**A-20 Proposed form(s) of Articles of Amendment to
Restated Articles of Incorporation, as
amended, establishing Series of Preferred
Stock with a fixed dividend rate.
**A-21 Proposed form(s) of Articles of Amendment to
Restated Articles of Incorporation, as
amended, establishing Series of Preferred
Stock with an adjustable dividend rate.
B-1 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Bonds.
B-2 Proposed form(s) of agreement for sale(s) of
Bonds.
B-3 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Preferred.
B-5 Proposed form(s) of Indenture.
B-6 Proposed form(s) of Installment Sale
Agreement.
B-7 Proposed form(s), if any, of Second Mortgage.
B-8 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Debentures.
B-9 Proposed form(s) of agreement for sale(s) of
Debentures.
B-10 Withdrawn.
B-12 Proposed form(s) of Refunding Agreement.
**B-13 Proposed form(s) of Reimbursement Agreement.
**B-14 Proposed form(s) of insurance policy and
provisions relating to bond insurance.
F-1 Opinion(s) of Laurence M. Hamric, General
Attorney-Corporate and Securities and/or
Denise C. Redmann, Senior Attorney - Corporate
and Securities, of Entergy Services, Inc.
F-2 Withdrawn.
F-3 Opinion(s) of Reid & Priest LLP.
_________________________
** To be filed by amendment.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
statement to be signed on its behalf by the undersigned thereunto
duly authorized.
LOUISIANA POWER & LIGHT COMPANY
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer,
Dated: August 21, 1995
Exhibit A-2
__________________________________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
BANK OF MONTREAL TRUST COMPANY
(successor to The Chase Manhattan Bank (National Association))
AND
MARK F. McLAUGHLIN
(successor to Z. George Klodnicki)
As Trustees under Louisiana Power & Light
Company's Mortgage and Deed of Trust,
dated as of April 1, 1944
________________
______________ Supplemental Indenture
Providing among other things for
First Mortgage Bonds, __% Series due __________, ____
(________ Series)
Dated as of __________, 199_
_________________________________________________________________
<PAGE>
___________ SUPPLEMENTAL INDENTURE
INDENTURE, dated as of ___________, 199_, between LOUISIANA
POWER & LIGHT COMPANY, a corporation of the State of Louisiana
(successor by merger to LOUISIANA POWER & LIGHT COMPANY, a
corporation of the State of Florida), whose post office address
is 639 Loyola Avenue, New Orleans, Louisiana 70113 (hereinafter
sometimes called the "Company"), and BANK OF MONTREAL TRUST
COMPANY, a New York corporation (successor to THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION)), whose principal office is located
at 77 Water Street, New York, New York 10005 (hereinafter
sometimes called the "Corporate Trustee"), and MARK F. McLAUGHLIN
(successor to Z. GEORGE KLODNICKI), whose post office address is
44 Norwood Avenue, Westwood, New Jersey 07711 (said MARK F.
McLAUGHLIN being hereinafter sometimes called the "Co-Trustee"
and the Corporate Trustee and the Co-Trustee being hereinafter
together sometimes called the "Trustees"), as Trustees under the
Mortgage and Deed of Trust, dated as of April 1, 1944
(hereinafter called the "Mortgage"), which Mortgage was executed
and delivered by Louisiana Power & Light Company, a corporation
of the State of Florida (hereinafter sometimes called the
"Florida Company"), to secure the payment of bonds issued or to
be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is hereby made, this
Indenture (hereinafter called the "___________ Supplemental
Indenture") being supplemental thereto;
WHEREAS, the Mortgage was recorded in various Parishes in
the State of Louisiana, which Parishes are the same Parishes in
which this ___________ Supplemental Indenture is to be recorded;
and
WHEREAS, by the Mortgage, the Florida Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as might be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, the Florida Company executed and delivered the
following supplemental indentures:
<TABLE>
<CAPTION>
Designation Dated as of
----------- -----------
<S> <C>
First Supplemental Indenture March 1, 1948
Second Supplemental Indenture November 1, 1950
Third Supplemental Indenture September 1, 1953
Fourth Supplemental Indenture October 1, 1954
Fifth Supplemental Indenture January 1, 1957
Sixth Supplemental Indenture April 1, 1960
Seventh Supplemental Indenture June 1, 1964
Eighth Supplemental Indenture March 1, 1966
Ninth Supplemental Indenture February 1, 1967
</TABLE>
<TABLE>
<CAPTION>
Designation Dated as of
----------- -----------
<S> <C>
Tenth Supplemental Indenture September 1, 1967
Eleventh Supplemental Indenture March 1, 1968
Twelfth Supplemental Indenture June 1, 1969
Thirteenth Supplemental Indenture December 1, 1969
Fourteenth Supplemental Indenture November 1, 1970
Fifteenth Supplemental Indenture April 1, 1971
Sixteenth Supplemental Indenture January 1, 1972
Seventeenth Supplemental Indenture November 1,1972
Eighteenth Supplemental Indenture June 1, 1973
Nineteenth Supplemental Indenture March 1, 1974
Twentieth Supplemental Indenture November 1, 1974
</TABLE>
which supplemental indentures were recorded in various Parishes
in the State of Louisiana; and
WHEREAS, the Florida Company was merged into the Company on
February 28, 1975, and the Company thereupon executed and
delivered a Twenty-first Supplemental Indenture, dated as of
March 1, 1975, pursuant to which the Company, among other things,
assumed and agreed duly and punctually to pay the principal of
and interest on the bonds at the time issued and outstanding
under the Mortgage, as then supplemented, in accordance with the
provisions of said bonds and of any appurtenant coupons and of
the Mortgage as so supplemented, and duly and punctually to
observe, perform and fulfill all of the covenants and conditions
of the Mortgage, as so supplemented, to be kept or performed by
the Florida Company, and said Twenty-first Supplemental Indenture
was recorded in various Parishes in the State of Louisiana; and
WHEREAS, the Company has succeeded to and has been
substituted for the Florida Company under the Mortgage with the
same effect as if it had been named as mortgagor corporation
therein; and
WHEREAS, the Company executed and delivered the following
supplemental indentures:
<TABLE>
<CAPTION>
Designation Dated as of
----------- -----------
<S> <C>
Twenty-second Supplemental Indenture September 1, 1975
Twenty-third Supplemental Indenture December 1, 1976
Twenty-fourth Supplemental Indenture January 1, 1978
Twenty-fifth Supplemental Indenture July 1, 1978
Twenty-sixth Supplemental Indenture May 1, 1979
Twenty-seventh Supplemental Indenture November 1, 1979
Twenty-eighth Supplemental Indenture December 1, 1980
Twenty-ninth Supplemental Indenture April 1, 1981
Thirtieth Supplemental Indenture December 1, 1981
Thirty-first Supplemental Indenture March 1, 1983
Thirty-second Supplemental Indenture September 1, 1983
Thirty-third Supplemental Indenture August 1, 1984
Thirty-fourth Supplemental Indenture November 1, 1984
</TABLE>
<TABLE>
<CAPTION>
Designation Dated as of
----------- -----------
<S> <C>
Thirty-fifth Supplemental Indenture December 1, 1984
Thirty-sixth Supplemental Indenture December 1, 1985
Thirty-seventh Supplemental Indenture April 1, 1986
Thirty-eighth Supplemental Indenture November 1, 1986
Thirty-ninth Supplemental Indenture May 1, 1988
Fortieth Supplemental Indenture December 1, 1988
Forty-first Supplemental Indenture April 1, 1990
Forty-second Supplemental Indenture June 1, 1991
Forty-third Supplemental Indenture April 1, 1992
Forty-fourth Supplemental Indenture July 1, 1992
Forty-fifth Supplemental Indenture December 1, 1992
Forty-sixth Supplemental Indenture March 1, 1993
Forty-seventh Supplemental Indenture May 1, 1993
Forty-eighth Supplemental Indenture December 1, 1993
Forty-ninth Supplemental Indenture July 1, 1994
Fiftieth Supplemental Indenture September 1, 1994
</TABLE>
1
which supplemental indentures were recorded in various Parishes
in the State of Louisiana; and
_____________________________
1 Here will be inserted any additional supplemental
indentures.
WHEREAS, in addition to the property described in the
Mortgage, as supplemented, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Florida Company or the Company has heretofore
issued, in accordance with the provisions of the Mortgage, as
supplemented, the following series of First Mortgage Bonds:
<TABLE>
<CAPTION>
Principal Principal
Amount Amount
Series Issued Outstanding
---------------------- ----------- -----------
<S> <C> <C>
3 % Series due 1974 $17,000,000 None
3 1/8% Series due 1978 10,000,000 None
3% Series due 1980 10,000,000 None
4% Series due 1983 12,000,000 None
3 1/8% Series due 1984 18,000,000 None
4 3/4% Series due 1987 20,000,000 None
5% Series due 1990 20,000,000 None
4 5/8% Series due 1994 25,000,000 None
5 3/4% Series due 1996 35,000,000 $35,000,000
5 5/8% Series due 1997 16,000,000 16,000,000
6 1/2% Series due September 1, 1997 18,000,000 18,000,000
7 1/8% Series due 1998 35,000,000 35,000,000
</TABLE>
<TABLE>
<CAPTION>
Principal Principal
Amount Amount
Series Issued Outstanding
---------------------- ----------- -----------
<S> <C> <C>
9 3/8% Series due 1999 $25,000,000 None
9 3/8% Series due 2000 20,000,000 None
7 7/8% Series due 2001 25,000,000 $18,700,000
7 1/2% Series due 2002 25,000,000 23,000,000
7 1/2% Series due November 1, 2002 25,000,000 15,259,000
8% Series due 2003 45,000,000 25,561,000
8 3/4% Series due 2004 45,000,000 None
9 1/2% Series due November 1, 1981 50,000,000 None
9 3/8% Series due September 1, 1983 50,000,000 None
8 3/4% Series due December 1, 2006 40,000,000 None
9% Series due January 1, 1986 75,000,000 None
10% Series due July 1, 2008 60,000,000 None
10 7/8% Series due May 1, 1989 45,000,000 None
13 1/2% Series due November 1, 2009 55,000,000 None
15 3/4% Series due December 1, 1988 50,000,000 None
16% Series due April 1, 1991 75,000,000 None
16 1/4% Series due December 1, 1991 100,000,000 None
12% Series due March 1, 1993 100,000,000 None
13 1/4% Series due March 1, 2013 100,000,000 None
13% Series due September 1, 2013 50,000,000 None
16% Series due August 1, 1994 100,000,000 None
14 3/4% Series due November 1, 2014 55,000,000 None
15 1/4% Series due December 1, 2014 35,000,000 None
14% Series due December 1, 1992 60,000,000 None
14 1/4% Series due December 1, 1995 15,000,000 None
10 1/2% Series due April 1, 1993 200,000,000 None
10 3/8% Series due November 1, 2016 280,000,000 None
Series 1988A due September 30, 1988 13,334,000 None
Series 1988B due September 30, 1988 10,000,000 None
Series 1988C due September 30, 1988 6,667,000 None
10.36% Series due December 1, 1995 75,000,000 75,000,000
10 1/8% Series due April 1, 2020 100,000,000 95,000,000
Environmental Series A due June 1, 2021 52,500,000 52,500,000
Environmental Series B due April 1, 2022 20,940,000 20,940,000
7.74% Series due July 1, 2002 179,000,000 179,000,000
8 1/2% Series due July 1, 2022 90,000,000 90,000,000
Environmental Series C due December 1,2022 25,120,000 25,120,000
6.00% Series due March 1, 2000 100,000,000 100,000,000
Environmental Series D due May 1, 2023 34,364,000 34,364,000
Environmental Series E due December 1,2023 25,991,667 25,991,667
Environmental Series F due July 1, 2024 21,335,000 21,335,000
</TABLE>
<TABLE>
<CAPTION>
Principal Principal
Amount Amount
Series Issued Outstanding
- ------------------------ ----------- -----------
<S> <C> <C>
Collateral Series 1994-A, due July 2, 2017 117,805,000
Collateral Series 1994-B, due July 2, 2017 58,865,000
Collateral Series 1994-C, due July 2, 2017 31,575,000
</TABLE>
2
which bonds are also hereinafter sometimes called bonds of the
First through ___________ Series, respectively; and
- -------------------------------
2 Here will be inserted any additional outstanding series.
WHEREAS, Section 8 of the Mortgage provides that the form of
each series of bonds (other than the First Series) issued
thereunder and of the coupons to be attached to coupon bonds of
such series shall be established by Resolution of the Board of
Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof,
and may also contain such provisions not inconsistent with the
provisions of the Mortgage as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon the Company by any
provision of the Mortgage, whether such power, privilege or right
is in any way restricted or is unrestricted, may be in whole or
in part waived or surrendered or subjected to any restriction if
at the time unrestricted or to additional restrictions if already
restricted, and the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more
series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein, or in any supplemental indenture, or
may establish the terms and provisions of any series of bonds
(other than the First Series) by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to record in
all of the states in which any property at the time subject to
the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create __________ new
series of bonds and to add to its covenants and agreements
contained in the Mortgage, as heretofore supplemented, certain
other covenants and agreements to be observed by it and to alter
and amend in certain respects the covenants and provisions
contained in the Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
___________ Supplemental Indenture, and the terms of the bonds of
the ________ Series, hereinafter referred to, have been duly
authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of
One Dollar to it duly paid by the Trustees at or before the
ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and in further evidence of assurance of the
estate, title and rights of the Trustees and in order further to
secure the payment both of the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage, according to their tenor and effect and the performance
of all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage
provided) and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, hypothecates,
affects, pledges, sets over and confirms (subject, however, to
Excepted Encumbrances as defined in Section 6 of the Mortgage)
unto Mark F. McLaughlin and (to the extent of its legal capacity
to hold the same for the purposes hereof) to Bank of Montreal
Trust Company, as Trustees under the Mortgage, and to their
successor or successors in said trust, and to said Trustees and
their successors and assigns forever, all of the property now
owned by the Company and specifically described in the Mortgage,
as supplemented, and all the following described properties of
the Company, whether now owned or hereafter acquired, namely:
PARAGRAPH ONE
3
The Electric Generating Plants, Plant Sites and Stations,
and all ownership interests therein, of the Company, including
all electric works, power houses, buildings, pipe lines and
structures owned by the Company and all land of the Company on
which the same are situated and all of the Company's lands,
together with the buildings and improvements thereon, and all
rights, ways, servitudes, prescriptions, and easements, rights-of-
way, permits, privileges, licenses, poles, wires, machinery,
implements, equipment and appurtenances, forming a part of said
plants, sites or stations, or any of them, or used or enjoyed, or
capable of being used or enjoyed in conjunction with any of said
power plants, sites, stations, lands and property.
- ----------------------------------
3 Paragraphs One through Seven may contain specific
descriptions of properties of the Company.
PARAGRAPH TWO
The Electric Substations, Switching Stations, Microwave
installations and UHF-VHF installations of the Company, and the
Sites therefor, including all buildings, structures, towers,
poles, all equipment, appliances and devices for transforming,
converting, switching, transmitting and distributing electric
energy, and for communications, and the lands of the Company on
which the same are situated, and all of the Company's lands,
rights, ways, servitudes, prescriptions, easements, rights-of-
way, machinery, equipment, appliances, devices, licenses and
appurtenances forming a part of said substations, switching
stations, microwave installations or UHF-VHF installations, or
any of them, or used or enjoyed or capable of being used or
enjoyed in conjunction with any of them.
PARAGRAPH THREE
All and Singular the Miscellaneous Lands and Real Estate or
Rights and Interests therein of the Company now owned, or,
subject to the provisions of Section 87 of the Mortgage,
hereafter acquired during the existence of this trust.
PARAGRAPH FOUR
The Electric Transmission Lines of the Company, including
the structures, towers, poles, wires, cables, switch racks,
conductors, transformers, pole type substations, insulators and
all appliances, devices and equipment used or useful in
connection with said transmission lines and systems, and all
other property, real, personal or mixed, forming a part thereof
or appertaining thereto, together with all rights-of-way,
easements, prescriptions, servitudes, permits, privileges,
licenses, consents, immunities and rights for or relating to the
construction, maintenance or operation thereof, through, over,
under or upon any public streets or highways or other lands,
public or private.
PARAGRAPH FIVE
The Electric Submarine Cables of the Company, including the
wires, cables, switch racks, conductors, conduits, transformers,
substations, insulators and all appliances, devices and equipment
used or useful in connection with said submarine cables, and all
other property, real, personal or mixed, forming a part thereof
or appertaining thereto, together with all rights-of-way,
easements, prescriptions, servitudes, permits, privileges,
licenses, consents, immunities and rights for or relating to the
construction, maintenance or operation thereof.
And also all extensions, replacements, branches, taps,
developments and improvements of said submarine cables, or any of
them, and all other submarine cables owned by the Company
wherever situated, whether now owned or hereafter acquired and/or
constructed, as well as all of the Company's rights-of-way,
easements, permits, privileges, licenses, consents, immunities
and rights for or relating to the construction, maintenance or
operation thereof, subject, however, to the provisions of Section
87 of the Mortgage.
PARAGRAPH SIX
The Electric Distribution Lines and Systems of the Company,
including the structures, towers, poles, wires, insulators and
appurtenances, appliances, conductors, conduits, cables,
transformers, meters, regulator stations and regulators,
accessories, devices and equipment and all of the Company's other
property, real, personal or mixed, forming a part of or used,
occupied or enjoyed in connection with or in anywise appertaining
to said distribution lines and systems, together with all of the
Company's rights-of-way, easements, permits, prescriptions,
privileges, municipal or other franchises, licenses, consents,
immunities and rights for or relating to the construction,
maintenance or operation thereof, through, over, under, or upon
any public streets or highways, public or private lands,
including all additions, improvements or replacements to all of
the distribution systems located in the municipalities and
parishes set forth in the Mortgage and in the First through
______________ Supplemental Indentures.
And also all branches, extensions, improvements and
developments of or appertaining to or connected with said
distribution lines, systems or any of them, and all other
distribution systems of the Company and parts and portions
thereof, wherever situated, whether connected or not connected
with any of the foregoing systems and whether now owned or
hereafter acquired, as well as all of the Company's rights-of-
way, easements, privileges, prescriptions, permits, municipal or
other franchises, consents and rights for or relating to the
construction, maintenance or operation thereof or any part or
portion thereof, through, over, under or upon any public streets
or highways or public or private lands, whether now owned or
hereafter acquired, subject, however, to the provisions of
Section 87 of the Mortgage.
PARAGRAPH SEVEN
The certain franchises, privileges, permits, grants and
consents for the construction, operation and maintenance of
electric systems in, on and under streets, alleys, highways,
roads, and public grounds, areas and rights-of-way, and/or for
the supply and sale of electricity, and all rights incident
thereto, which were granted by the governing bodies of the
respective municipalities, parishes and public authorities in the
State of Louisiana.
Also all other franchises, privileges, permits, grants and
consents owned or hereafter acquired by the Company for the
construction, operation and maintenance of electric systems in,
on or under streets, alleys, highways, roads, and public grounds,
areas and rights-of-way and/or for the supply and sale of
electricity and all rights incident thereto, subject, however, to
the provisions of Section 87 of the Mortgage.
All other property, real, personal and mixed, acquired by
the Company after the date of the execution and delivery of the
Mortgage, in addition to property covered by the First through
Forty-fifth Supplemental Indentures (except any herein or in the
Mortgage or in said Supplemental Indentures expressly excepted),
now owned or, subject to the provisions of Section 87 of the
Mortgage, hereafter acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any
other way) and wheresoever situated, including (without in
anywise limiting or impairing by the enumeration of the same the
scope and intent of the foregoing or of any general description
contained in this ___________ Supplemental Indenture) all lands,
power sites, flowage rights, water rights, water locations, water
appropriations, ditches, flumes, reservoirs, reservoir sites,
canals, raceways, dams, dam sites, aqueducts and all other rights
or means for appropriating, conveying, storing and supplying
water; all rights-of-way and roads; all plants for the generation
of electricity by steam, water and/or other power; all power
houses, gas plants, street lighting systems, standards and other
equipment incidental thereto, telephone, radio and television
systems, air-conditioning systems and equipment incidental
thereto, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, electric, gas
and other machines, regulators, meters, transformers, generators,
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture and chattels; all municipal and other franchises,
consents, or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for
any purpose, including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection
therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights-of-way and
other rights in or relating to real estate or the occupancy of
the same and (except as herein or in the Mortgage, as heretofore
supplemented, expressly excepted) all the right, title and
interest of the Company in and to all other property of any kind
or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the
Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in any
wise appertaining to the aforesaid property or any part thereof,
with the reversion and reversions, remainder and remainders and
(subject to the provisions of Section 57 of the Mortgage) the
tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest
and claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property,
rights and franchises acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any
other way) after the date hereof (except any herein or in the
Mortgage, as heretofore supplemented, expressly excepted), shall
be and are as fully granted and conveyed hereby and as fully
embraced within the lien hereof and the lien of the Mortgage, as
if such property, rights and franchises were now owned by the
Company and were specifically described herein and conveyed
hereby.
PROVIDED THAT the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of this ____________
Supplemental Indenture and from the lien and operation of the
Mortgage, namely: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereafter specifically
pledged, paid, deposited, delivered or held under the Mortgage or
covenanted so to be; (2) merchandise, equipment, materials or
supplies held for the purpose of sale in the usual course of
business and fuel, oil and similar materials and supplies
consumable in the operation of any properties of the Company;
rolling stock, buses, motor coaches, automobiles and other
vehicles and all aircraft; (3) bills, notes and accounts
receivable, judgments, demands and choses in action, and all
contracts, leases and operating agreements not specifically
pledged under the Mortgage or covenanted so to be; (4) the last
day of the term of any lease or leasehold which may hereafter
become subject to the lien of the Mortgage; (5) electric energy,
gas, ice, and other materials or products generated,
manufactured, produced or purchased by the Company for sale,
distribution or use in the ordinary course of its business; all
timber, minerals, mineral rights and royalties; (6) the Company's
franchise to be a corporation; and (7) any property heretofore
released pursuant to any provisions of the Mortgage and not
heretofore disposed of by the Company; provided, however, that
the property and rights expressly excepted from the lien and
operation of the Mortgage in the above subdivisions (2) and (3)
shall (to the extent permitted by law) cease to be so excepted in
the event and as of the date that either or both of the Trustees
or their successor or successors in said trust or a receiver or
trustee shall enter upon and take possession of the Mortgaged and
Pledged Property in the manner provided in Article XIII of the
Mortgage by reason of the occurrence of a Default as defined in
Section 65 thereof.
TO HAVE AND TO HOLD ALL such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed by the Company as aforesaid, or intended so to be,
unto Mark F. McLaughlin and (to the extent of its legal capacity
to hold the same for the purposes hereof) to Bank of Montreal
Trust Company, as Trustees, and their successors and assigns
forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
supplemented, this ___________ Supplemental Indenture being
supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage, as supplemented, shall affect and apply to the
property hereinbefore described and conveyed and to the estate,
rights, obligations and duties of the Company and the Trustees
and the beneficiaries of the trust with respect to said property,
and to the Trustees and their successors as Trustees of said
property in the same manner and with the same effect as if said
property had been owned by the Company at the time of the
execution of the Mortgage, and had been specifically and at
length described in and conveyed to said Trustees by the Mortgage
as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in said trust under
the Mortgage as follows:
<PAGE>
ARTICLE I
4
__________ SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "__%
Series due _________, ____" (herein sometimes called the
"________ Series"), each of which shall also bear the descriptive
title "First Mortgage Bond", and the form thereof, which shall be
established by Resolution of the Board of Directors of the
Company, shall contain suitable provisions with respect to the
matters hereinafter in this Section specified. Bonds of the
___________ Series (which shall be initially issued in the
aggregate principal amount of $___________) shall be dated as in
Section 10 of the Mortgage provided, shall mature on
_____________, shall be issued as fully registered bonds in any
integral multiple or multiples of One Thousand Dollars, and shall
bear interest at the rate of __% per annum, payable from
_____________, if the date of said bonds is prior to
_________________, or if the date of said bonds is after
_________________, from the __________ or ___________ next
preceding the date of said bonds, and thereafter semi-annually on
___________ and ___________ of each year, the principal of and
interest on each said bond to be payable at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debts.
- -------------------------------------
4 In the event a particular supplemental indenture
provides for more than one series of bonds, an additional
article will be inserted in substantially the same form as
this Article I for each additional series created, stating
the terms for that particular series of bonds, and
succeeding articles and sections will be renumbered
accordingly.
The Company reserves the right to establish, at any time, by
Resolution of the Board of Directors of the Company, a form of
coupon bond, and of appurtenant coupons, for the ________ Series
and to provide for exchangeability of such coupon bonds with the
bonds of said Series issued hereunder in fully registered form
and to make all appropriate provisions for such purpose.
5
(I) Bonds of the ____________ Series shall be redeemable at
the option of the Company in whole at any time, or in part from
time to time, prior to maturity, upon notice, as provided in
Section 52 of the Mortgage, mailed at least 30 days prior to the
date fixed for redemption, at the following general redemption
prices, expressed in percentages of the principal amount of the
bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 months period ending __________,
together, in each case, with accrued interest to the date fixed
for redemption; provided, however, that none of the bonds of the
____________ Series shall be redeemed at the general redemption
prices prior to ____________, if such redemption is for the
purpose or in anticipation of refunding such bond 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 ______%
per annum.
(II) Bonds of the ____________ Series shall also be
redeemable in whole at any time, or in part from time to time,
prior to maturity, upon like notice, by the application (either
at the option of the Company or pursuant to the requirements of
the Mortgage) of cash deposited with the Corporate Trustee
pursuant to the provisions of Section 39 or Section 64 of the
Mortgage or of Section 2 hereof or with the Proceeds of Released
Property at the following special redemption prices, expressed in
percentages of the principal amount of the bonds to be redeemed:
SPECIAL REDEMPTION PRICES
If redeemed during 12 months period ending _______,
together, in each case, with accrued interest to the date fixed
for redemption; provided, however, that if the date fixed for
redemption in the case of the application of cash deposited with
the Corporate Trustee pursuant to the provisions of Section 2
hereof shall be prior to January 1 of the calendar year in which
such deposit of cash shall become due under the provisions of
said Section 2, bonds of the ____________ Series shall be
redeemable at the general redemption prices set forth in
subdivision (I) of this Section, together with accrued interest
to the date fixed for redemption.
- --------------------------------
5 Paragraphs I and II are examples of provisions that may
apply to new series of Bonds, and are subject to change.
(III) At the option of the registered owner, any bonds of
the ________ Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, shall be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized
denominations.
Bonds of the ________ Series shall be transferable, upon the
surrender thereof for cancellation, together with a written
instrument of transfer in form approved by the registrar duly
executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the ________
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 12 of the Mortgage, but the Company hereby
waives any right to make a charge in addition thereto for any
exchange or transfer of bonds of said Series.
<PAGE>
6
ARTICLE II
SINKING OR IMPROVEMENT FUND FOR BONDS
OF THE _____________ SERIES
- ------------------------------
6 In the event a particular supplemental indenture
provides for more than one series of bonds, an additional
article may be inserted in substantially the same form as
this Article II for each additional series created,
establishing a Sinking or Improvement Fund for that
particular series of bonds.
[SECTION 2. The Company covenants that, so long as any of
the bonds of the ________ Series shall remain Outstanding, it
will, on or before ________________7, and on or before __________8
of each year thereafter to and including the year ____9, deliver
to the Corporate Trustee:
- ----------------------------
7 The date inserted will be a date not later than 23
months from the date of the series of bonds being issued
under a particular supplemental indenture.
8 The date inserted will be the anniversary date of the
first sinking fund requirement for the series of bonds being
issued under a particular supplemental indenture.
9 The date inserted will be the last year, including the
year of maturity of the series of bonds being issued under a
particular supplemental indenture, in which an anniversary
date occurs prior to the maturity of said series of bonds.
(A) An Officers' Certificate which shall state:
(a) the greatest principal amount of all bonds of the ________
Series prior to January 1 of such year at any one time
Outstanding;
(b) the aggregate principal amount of all bonds of the ________
Series retired prior to the date of such Officers' Certificate
(i) pursuant to the provisions of subdivision (3) or subdivision
(4) of Section 61 of the Mortgage by use or application of the
proceeds of insurance on, the release or other disposition of, or
the taking by eminent domain of, property; or (ii) pursuant to
the provisions of Section 64 of the Mortgage;
(c) the aggregate principal amount of bonds the right to the
authentication and delivery of which (on the basis of the
retirement of bonds of the ________ Series) shall have been
waived prior to the date of such Officers' Certificate pursuant
to the provisions of clause (c) of subdivision (4) of Section 59
of the Mortgage as the basis of the release of property or
pursuant to the provisions of subdivision (2) of Section 61 of
the Mortgage as the basis of the withdrawal of cash representing
proceeds of insurance on, the release or other disposition of, or
the taking by eminent domain of, property;
(d) the amount remaining after deducting the sum of the amounts
stated pursuant to clauses (b) and (c) above from the amount
stated pursuant to clause (a) above;
(e) the amount which is one per centum (1%) of the amount
stated pursuant to clause (d) above; and
(f) (i) an aggregate principal amount of bond(s) or fraction of
a bond, not to exceed $_________10 principal amount for any such
year, the authentication and delivery of which the Company has
theretofore waived (in compliance with a sinking or improvement
fund contained in any Supplemental Indenture to the Mortgage,
dated prior to _____________, provided that the series of bonds
with respect to which such sinking or improvement fund relates
has been retired prior to the date of such Officers' Certificate)
upon the basis of Property Additions, which waiver or waivers
shall not theretofore have been used as a credit under this
clause (f)(i) or under clauses ___________________ of
__________________; plus (ii) an aggregate principal amount of
bond(s) or fraction of a bond to the authentication and delivery
of which the Company shall then be entitled on the basis of
Property Additions or on the basis of the retirement of bonds of
the ________ Series by virtue of compliance with all applicable
provisions of the Mortgage (except as hereinafter in this Section
otherwise provided) if the Company elects to make its right to
the authentication and delivery of such bond(s) or fraction of a
bond the basis of a credit under this Section.
(B) An amount in cash and/or principal amount of bonds of the
____________ Series equivalent to the amount stated in the
Officers' Certificate (due on or before __________11 of such year)
provided for by this Section pursuant to the requirements of
clause (e) of subdivision (A) of this Section; provided, however,
that against the amount of cash or bonds payable or deliverable
pursuant to this subdivision (B), there shall be credited the
principal amount, if any, of the bonds which shall be stated in
such Officers' Certificate pursuant to the requirements of clause
(f) of subdivision (A) of this Section.
For the purpose of subdivision (A) of this Section the term
"Outstanding" shall not include bonds of the ________ Series
pledged to secure indebtedness of the Company and not at any time
otherwise issued by the Company.
Such cash together with any bonds delivered to the Corporate
Trustee under the provisions of this Section shall be dealt with
as provided for by this Section.
- -------------------------------
10 The dollar amount inserted will not exceed the sinking
fund requirement for any year of the series of bonds being
issued under a particular supplemental indenture.
11 The date inserted will be the anniversary of the first
sinking fund requirement for the series of bonds being
issued under a particular supplemental indenture.
Notwithstanding any other provisions of this ___________
Supplemental Indenture or of the Mortgage, (i) the Company shall
be permitted from time to time to anticipate in whole or in part
the requirements of this Section becoming due on __________12 of
the then current year or any subsequent year or years by
depositing cash and/or a principal amount of bonds of the
________ Series with the Corporate Trustee in full satisfaction
or in partial satisfaction of the requirements of this Section
and (ii) any cash so deposited, whether in full satisfaction or
in partial satisfaction of the requirements of this Section and
whether becoming due on __________12 of the then current year or
of a subsequent year, may be from time to time withdrawn, used or
applied in the manner, to the extent, for the purposes and
subject to the conditions provided in Section 31 of the Mortgage
or in subdivision (3) and/or (4) of Section 61 of the Mortgage;
provided, however, that the retirement of no bonds of any series
other than the ________ Series shall be made the basis of the
withdrawal of cash deposited under this Section; and provided
further, that no bonds of any series other than the ________
Series shall be purchased, paid or redeemed, as above provided,
with cash deposited under the provisions of this Section and that
no bonds of the ________ Series shall be purchased with cash
deposited under this Section at such price (including accrued
interest and brokerage) that the cost thereof to the Company is
in excess of the cost of redeeming, on a date 40 days after the
date of such purchase (including premium, if any, and accrued
interest from the interest date next preceding the date of
purchase to such redemption date in such cost), such bonds as
shall be by their terms redeemable before maturity, at not more
than one hundred and five per centum (105%) of the principal of
bonds not so redeemable, plus accrued interest.
In case credit under the provisions of this Section is
applied for in whole or in part upon the basis of the right to
the authentication and delivery of bonds, the Company shall
comply with all applicable provisions of the Mortgage relating to
such authentication and delivery, except that the Company shall
not be required to comply with any earning requirements or to
deliver to the Corporate Trustee any Resolution, Officers'
Certificate, Net Earning Certificate or Opinion of Counsel such
as is described in subdivisions (1), (2), (6) and (8) of Section
28 of the Mortgage.
- -------------------------------
12 The date inserted will be the anniversary of the first
sinking fund requirement for the series of bonds being
issued under a particular supplemental indenture.
So long as any bonds of the ________ Series shall remain
Outstanding, any election by the Company pursuant to clause (f)
of subdivision (A) of this Section to make its right to the
authentication and delivery of any bonds(s) or fraction of a bond
the basis of a credit under this Section shall operate as a
waiver by the Company of its right to the authentication and
delivery of such bond(s) or fraction of a bond and such bond(s)
or fraction of a bond may not thereafter be authenticated and
delivered under the Mortgage, and any Property Additions which
have been made the basis of any such right to the authentication
and delivery of bond(s) or fraction of a bond so waived shall
have the status of Funded Property and shall be deemed to have
been made the basis of a credit under the Mortgage.
For all purposes of the Mortgage (including all calculations
thereunder), so long as any bonds of the ________ Series remain
Outstanding, as defined in Section 2 of the Mortgage:
a. any cash deposited under the provisions of this Section or
Section 40 of the Mortgage or Section 2 of the First through
Eleventh, Thirteenth through Twentieth, Twenty-second through
Thirtieth, Thirty-second through Thirty-fifth, Thirty-eighth,
Forty-first, Forty-sixth and ___________ Supplemental Indentures
or Section 3 or Section 4 of the Thirty-first and Forty-fourth
Supplemental Indentures shall be deemed to be Funded Cash;
b. any bonds of the ________ Series delivered to the Corporate
Trustee pursuant to the provisions of this Section or any bonds
of the Second through Thirty-fifth, Thirty-ninth, Forty-fourth,
Forty-seventh, Forty-eighth, Fiftieth and _____________ Series
delivered to the Corporate Trustee pursuant to the provisions of
Section 2 of the First through Eleventh, Thirteenth through
Twentieth, Twenty-second through Thirtieth, Thirty-second through
Thirty-fifth, Thirty-eighth, Forty-first, Forty-sixth and
______________ Supplemental Indentures or Section 3 or Section 4
of the Thirty-first and Forty-fourth Supplemental Indentures or
any bonds of the First Series delivered to the Corporate Trustee
or credited pursuant to the provisions of Section 40 of the
Mortgage, shall after such delivery or crediting, be deemed to
have been retired by the use of Funded Cash; and
c. with respect to all credits taken under this Section or
Section 2 of the First through Eleventh, Thirteenth through
Twentieth, Twenty-second through Thirtieth, Thirty-second through
Thirty-fifth, Thirty-eighth, Forty-first, Forty-sixth and
______________ Supplemental Indentures or Section 3 or Section 4
of the Thirty-first and Forty-fourth Supplemental Indentures on
the basis of waivers of the right to authentication and delivery
of bonds or otherwise, it shall be deemed that (in lieu of such
credits being so taken) an amount of cash equal to each such
credit was deposited pursuant to the provisions of this Section
or of said Section 2 of the First through Eleventh, Thirteenth
through Twentieth, Twenty-second through Thirtieth, Thirty-second
through Thirty-fifth, Thirty-eighth, Forty-first, Forty-sixth and
_____________ Supplemental Indentures or Section 3 or Section 4
of the Thirty-first and Forty-fourth Supplemental Indentures, as
the case may be, and concurrently with such deposit was withdrawn
on the same basis as that on which such credit was taken.
Any bonds issued under the Mortgage delivered to,
deposited with or purchased or redeemed by the Corporate
Trustee pursuant to the provisions of this Section shall
forthwith be canceled by the Corporate Trustee.
The Company shall forthwith from time to time on demand
of the Corporate Trustee make further payments pursuant to
the provisions of this Section on account of accrued
interest, brokerage and premium, if any, on bonds purchased
or redeemed or then to be purchased or redeemed but not in
excess of
(AA) the aggregate cost for principal, interest,
brokerage and premium, if any, on all bonds theretofore,
or then to be, purchased and/or redeemed pursuant to the
provisions of this Section;
after deducting therefrom
(BB) the aggregate principal amount of all bonds
theretofore, and of all bonds then to be, purchased
and/or redeemed pursuant to the provisions of this
Section, plus the aggregate of all such further payments
theretofore made pursuant to the provisions of this
Section on account of accrued interest, brokerage and/or
premium, if any.] 13
- ----------------------------
13 This provision is an example of provisions that may
apply to new series of Bonds, and is subject to change.
<PAGE>
ARTICLE III
DIVIDEND COVENANT
[SECTION 3. The Company covenants that, so long as any of
the bonds of the _________14 Series are Outstanding, it will not
declare any dividends on its Common Stock (other than (a) a
dividend payable solely in shares of its Common Stock, or (b) a
dividend payable in cash in cases where, concurrently with the
payment of such dividend, an amount in cash equal to such
dividend is received by the Company as a capital contribution or
as the proceeds of the issue and sale of shares of its Common
Stock) or make any distribution on outstanding shares of its
Common Stock or purchase or otherwise acquire for value any
outstanding shares of its Common Stock (otherwise than in
exchange for or out of the proceeds from the sale of other shares
of its Common Stock) if, after such dividend, distribution,
purchase or acquisition, the aggregate amount of such dividends,
distributions, purchases and acquisitions paid or made subsequent
to _________________15 (other than any dividend declared by the
Company on or before _________________15 for payment on or before
______________) exceeds (without giving effect to (i) any of such
dividends, distributions, purchases or acquisitions, or (ii) any
net transfers from earned surplus to stated capital accounts) the
sum of (a) the aggregate amount credited subsequent to
_________________15, to earned surplus, (b) $345,000,000 and (c)
such additional amounts as shall be authorized or approved, upon
application by the Company, by the Securities and Exchange
Commission, or by any successor commission thereto, under the
Public Utility Holding Company Act of 1935.
For the purposes of this Section 3, the aggregate amount
credited subsequent to _______________15 to earned surplus shall
be determined in accordance with generally accepted accounting
principles and practices after making provision for dividends
upon any preferred stock of the Company accumulated subsequent to
such date, but in such determination there shall not be
considered charges to earned surplus applicable to the period
prior to _____________16 including, but not limited to, charges to
earned surplus for write-offs or write-downs of book values of
assets owned by the Company on _______________17. There shall be
included as a deduction, however, in determining the net balance
to be transferred from the income account for any period
subsequent to _______________17, amounts equal to the sum of (1)
amounts, not otherwise deducted, which would be required to be
included in operating expenses in each Net Earning Certificate by
the provisions of Section 5 of this ___________ Supplemental
Indenture and (2) the Company's provisions during such period for
depreciation and retirement of property (but excluding from this
subdivision (2) amounts included under subdivision (1) above),
which sum, for the purposes of this Section 3, shall not be less
than the aggregate amounts required to be stated for the period
from ________________, to the date of such dividend,
distribution, purchase or acquisition in the Officers'
Certificate of Replacements by the provisions of subdivision (1)
of subsection (I) of Section 39 of the Mortgage, including
proportionate amounts calculated as provided in subdivision (1)
thereof for any portion of the period elapsed since
_______________17, not theretofore included in any Officers'
Certificate of Replacements.
For the purpose of this Section 3, the Company's provisions
for depreciation and retirement of property shall be deemed to be
the amount credited to the accumulated provision for depreciation
account through charges to operating expenses, or otherwise to
income, as provided in the Uniform System of Accounts prescribed
for Public Utilities and Licensees by the Federal Energy
Regulatory Commission.]18
- ----------------------------------
14 In the event a particular supplemental indenture provides
for more than one series of bonds, references to all such series
shall be inserted.
15 The date inserted will be the day prior to the date of
the series of bonds being issued under a particular
supplemental indenture.
16 The date inserted will be the date of series of bonds
being issued under a particular supplemental indenture.
17 The date inserted will be the day prior to the date of
the series of bonds being issued under a particular
supplemental indenture.
18 This provision is an example of provisions that may
apply to new series of Bonds, and is subject to change.
<PAGE>
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to any amendments provided for in this
___________ Supplemental Indenture, the terms defined in the
Mortgage, as heretofore supplemented, shall, for all purposes of
this ___________ Supplemental Indenture, have the meanings
specified in the Mortgage, as heretofore supplemented.
SECTION 5. So long as any bonds of the __________ Series
shall remain Outstanding, in each Net Earning Certificate made
pursuant to Section 7 of the Mortgage there shall be included in
operating expenses for the twelve (12) months period with respect
to which such certificate is made an amount, if any (not
otherwise included), equal to the provisions for amortization of
any amounts included in utility plant acquisition adjustment
accounts for such period.
SECTION 6. So long as any bonds of the ________ Series shall
remain Outstanding, subdivision (2) of Section 7 of the Mortgage
is hereby amended by adding thereto the following words
"provided, further, that the amount so included in such operating
expenses in lieu of the amounts actually appropriated out of
income for retirement of the Mortgaged and Pledged Property used
primarily and principally in the electric, gas, steam and/or hot
water utility business and the Company's automotive equipment
used in the operation of such property shall not be less than the
amounts so actually appropriated out of income".
SECTION 7. So long as any bonds of the ________ Series shall
remain Outstanding, clause (5) of subsection (I) of Section 39 of
the Mortgage is amended by deleting the word "expenditures" from
the first line of such clause (5) and inserting in lieu thereof
the words "net cash expenditures (after reflecting salvage)
made".
SECTION 8. Section 55 of the Mortgage, as heretofore
amended, is hereby further amended to insert the words "and
subject to the provisions of Section 2 of the ___________
Supplemental Indenture dated as of _____________," after the date
"____________".
SECTION 9. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the
Mortgage, as heretofore amended, set forth and upon the following
terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this ___________ Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XVII of the Mortgage, as
heretofore amended, shall apply to and form part of this
___________ Supplemental Indenture with the same force and effect
as if the same were herein set forth in full with such omissions,
variations and insertions, if any, as may be appropriate to make
the same conform to the provisions of this ___________
Supplemental Indenture.
SECTION 10. Whenever in this ___________ Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVI and XVII of
the Mortgage, as heretofore amended, be deemed to include the
successors and assigns of such party, and all covenants and
agreements in this ___________ Supplemental Indenture contained
by or on behalf of the Company, or by or on behalf of the
Trustees, or either of them, shall, subject as aforesaid, bind
and inure to the respective benefits of the respective successors
and assigns of such parties, whether so expressed or not.
SECTION 11. Nothing in this ___________ Supplemental
Indenture, expressed or implied, is intended, or shall be
construed, to confer upon, or give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this ___________
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this ___________
Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 12. It is the intention and it is hereby agreed
that, so far as concerns that portion of the Mortgaged and
Pledged Property situated within the State of Louisiana, the
general language of conveyance contained in this ___________
Supplemental Indenture is intended and shall be construed as
words of hypothecation and not of conveyance, and that, so far as
the said Louisiana property is concerned, this ___________
Supplemental Indenture shall be considered as an act of mortgage
and pledge under the laws of the State of Louisiana, and the
Trustees herein named are named as mortgagee and pledgee in trust
for the benefit of themselves and of all present and future
holders of bonds and coupons issued and to be issued under the
Mortgage, and are irrevocably appointed special agents and
representatives of the holders of the bonds and coupons issued
and to be issued under the Mortgage and vested with full power in
their behalf to effect and enforce the mortgage and pledge hereby
constituted for their benefit, or otherwise to act as herein
provided for.
SECTION 13. This ___________ Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, LOUISIANA POWER & LIGHT COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its
Vice Presidents, and its corporate seal to be attested by its
Secretary or one of its Assistant Secretaries, for and in its
behalf, and BANK OF MONTREAL TRUST COMPANY, in token of its
acceptance of the trust hereby created, has caused its corporate
name to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents or Assistant Vice Presidents
and its corporate seal to be attested by one of its Assistant
Secretaries and MARK F. McLAUGHLIN, in token of his acceptance of
the trust hereby created, has hereunto set his hand and affixed
his seal, all as of the day and year first above written.
LOUISIANA POWER & LIGHT COMPANY
By:_______________________________
Attest:
____________________________________
Executed, sealed and delivered by
LOUISIANA POWER & LIGHT COMPANY
in the presence of:
____________________________________
____________________________________
<PAGE>
BANK OF MONTREAL TRUST COMPANY,
As Corporate Trustee
By:____________________________
Attest:
____________________________________
______________________________[L.S.]
Mark F. McLaughlin
As Co-Trustee
Executed, sealed and delivered by
BANK OF MONTREAL TRUST COMPANY and
MARK F. McLAUGHLIN
in the presence of:
____________________________________
____________________________________
<PAGE>
STATE OF LOUISIANA
} ss.:
PARISH OF ORLEANS
On this ____ day of ________, 199_, before me appeared
__________________, to me personally known, who, being by me duly
sworn, did say that he is a ______________ of LOUISIANA POWER &
LIGHT COMPANY, and that the seal affixed to the above instrument
is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said _______________
acknowledged said instrument to be the free act and deed of said
corporation.
On the ____ day of ___________, in the year 199_, before me
personally came _______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
___________________________, State of Louisiana; that he is a
______________ of LOUISIANA POWER & LIGHT COMPANY, one of the
corporations described in and which executed the above
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 order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
____________________________________
___________________________
NOTARY PUBLIC
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
On this ____ day of _________, 199_, before me appeared
__________________, to me personally known, who, being by me duly
sworn, did say that he is a ______________ of BANK OF MONTREAL
TRUST COMPANY, and that the seal affixed to the above instrument
is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said __________________
acknowledged said instrument to be the free act and deed of said
corporation.
On the ____ day of ________ in the year 199_, before me
personally came __________________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_______________________________________; that he is a
______________ of BANK OF MONTREAL TRUST COMPANY, one of the
corporations described in and which executed the above
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 order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
_____________________________________________
_______________
NOTARY PUBLIC, STATE OF NEW YORK
No. __________
____________________________
__________________________________
<PAGE>
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
On this ____ day of _________, 199_, before me appeared MARK
F. McLAUGHLIN, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he
executed the same as his free act and deed.
On the ____ day of ________, 1993, before me personally came
MARK F. McLAUGHLIN, to me known to be the person described in and
who executed the foregoing instrument, and acknowledged that he
executed the same.
_____________________________________________
_______________
NOTARY PUBLIC, STATE OF NEW YORK
No. __________
____________________________
__________________________________
Exhibit A-3
FORM
________________________________________________________________
________________________________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
BANK OF MONTREAL TRUST COMPANY
(successor to The Chase Manhattan Bank (National Association))
AND
MARK F. MCLAUGHLIN
(successor to Z. George Klodnicki)
As Trustees under Louisiana Power & Light
Company's Mortgage and Deed of Trust,
dated as of April 1, 1944
________________
[ ] Supplemental Indenture
Providing among other things for
First Mortgage Bonds, Environmental Series [ ]
([ ] Series)
Dated as of [ ] 1, 199[ ]
____________________________________________________________
____________________________________________________________
<PAGE>
[ ] SUPPLEMENTAL INDENTURE
INDENTURE, dated as of December 1, 1993, between
LOUISIANA POWER & LIGHT COMPANY, a corporation of the State
of Louisiana (successor by merger to LOUISIANA POWER & LIGHT
COMPANY, a corporation of the State of Florida), whose post
office address is 639 Loyola Avenue, New Orleans, Louisiana
70113 (hereinafter sometimes called the "Company"), and BANK
OF MONTREAL TRUST COMPANY, a New York corporation (successor
to THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)), whose
principal office is located at 77 Water Street, New York,
New York 10005 (hereinafter sometimes called the "Corporate
Trustee"), and MARK F. McLAUGHLIN (successor to Z. GEORGE
KLODNICKI), whose post office address is 44 Norwood Avenue,
Allenhurst, New Jersey 07711 (said MARK F. McLAUGHLIN being
hereinafter sometimes called the "Co-Trustee" and the
Corporate Trustee and the Co-Trustee being hereinafter
together sometimes called the "Trustees"), as Trustees under
the Mortgage and Deed of Trust, dated as of April 1, 1944
(hereinafter called the "Mortgage"), which Mortgage was
executed and delivered by Louisiana Power & Light Company, a
corporation of the State of Florida (hereinafter sometimes
called the "Florida Company"), to secure the payment of
bonds issued or to be issued under and in accordance with
the provisions of the Mortgage, reference to which Mortgage
is hereby made, this Indenture (hereinafter called the ("[
] Supplemental Indenture") being supplemental thereto;
WHEREAS, the Mortgage was recorded in various Parishes
in the State of Louisiana, which Parishes are the same
Parishes in which this [ ] Supplemental
Indenture is to be recorded; and
WHEREAS, by the Mortgage, the Florida Company
covenanted that it would execute and deliver such
supplemental indenture or indentures and such further
instruments and do such further acts as might be necessary
or proper to carry out more effectually the purposes of the
Mortgage and to make subject to the lien of the Mortgage any
property thereafter acquired and intended to be subject to
the lien thereof; and
WHEREAS, the Florida Company executed and delivered the
following supplemental indentures:
<TABLE>
<CAPTION>
Designation Dated as of
------------ ---------------
<S> <C>
First Supplemental Indenture March 1, 1948
Second Supplemental Indenture November 1, 1950
Third Supplemental Indenture September 1, 1953
Fourth Supplemental Indenture October 1, 1954
Fifth Supplemental Indenture January 1, 1957
Sixth Supplemental Indenture April 1, 1960
Seventh Supplemental Indenture June 1, 1964
Eighth Supplemental Indenture March 1, 1966
Ninth Supplemental Indenture February 1, 1967
Tenth Supplemental Indenture September 1, 1967
Eleventh Supplemental Indenture March 1, 1968
Twelfth Supplemental Indenture June 1, 1969
Thirteenth Supplemental Indenture December 1, 1969
</TABLE>
<TABLE>
<CAPTION>
Designation Dated as of
------------ ---------------
<S> <C>
Fourteenth Supplemental Indenture November 1, 1970
Fifteenth Supplemental Indenture April 1, 1971
Sixteenth Supplemental Indenture January 1, 1972
Seventeenth Supplemental Indenture November 1, 1972
Eighteenth Supplemental Indenture June 1, 1973
Nineteenth Supplemental Indenture March 1, 1974
Twentieth Supplemental Indenture November 1, 1974
</TABLE>
which supplemental indentures were recorded in various
Parishes in the State of Louisiana; and
WHEREAS, the Florida Company was merged into the
Company on February 28, 1975, and the Company thereupon
executed and delivered a Twenty-first Supplemental
Indenture, dated as of March 1, 1975, pursuant to which the
Company, among other things, assumed and agreed duly and
punctually to pay the principal of and interest on the bonds
at the time issued and outstanding under the Mortgage, as
then supplemented, in accordance with the provisions of said
bonds and of any appurtenant coupons and of the Mortgage as
so supplemented, and duly and punctually to observe, perform
and fulfill all of the covenants and conditions of the
Mortgage, as so supplemented, to be kept or performed by the
Florida Company, and said Twenty-first Supplemental
Indenture was recorded in various Parishes in the State of
Louisiana; and
WHEREAS, the Company has succeeded to and has been
substituted for the Florida Company under the Mortgage with
the same effect as if it had been named as mortgagor
corporation therein; and
WHEREAS, the Company executed and delivered the
following supplemental indentures:
<TABLE>
<CAPTION>
Designation Dated as of
------------ ---------------
<S> <C>
Twenty-second Supplemental Indenture September 1, 1975
Twenty-third Supplemental Indenture December 1, 1976
Twenty-fourth Supplemental Indenture January 1, 1978
Twenty-fifth Supplemental Indenture July 1, 1978
Twenty-sixth Supplemental Indenture May 1, 1979
Twenty-seventh Supplemental Indenture November 1, 1979
Twenty-eighth Supplemental Indenture December 1, 1980
Twenty-ninth Supplemental Indenture April 1, 1981
Thirtieth Supplemental Indenture December 1, 1981
Thirty-first Supplemental Indenture March 1, 1983
Thirty-second Supplemental Indenture September 1, 1983
Thirty-third Supplemental Indenture August 1, 1984
Thirty-fourth Supplemental Indenture November 1, 1984
Thirty-fifth Supplemental Indenture December 1, 1984
Thirty-sixth Supplemental Indenture December 1, 1985
Thirty-seventh Supplemental Indenture April 1, 1986
Thirty-eighth Supplemental Indenture November 1, 1986
Thirty-ninth Supplemental Indenture May 1, 1988
Fortieth Supplemental Indenture December 1, 1988
</TABLE>
<TABLE>
<CAPTION>
Designation Dated as of
------------ ---------------
<S> <C>
Forty-first Supplemental Indenture April 1, 1990
Forty-second Supplemental Indenture June 1, 1991
Forty-third Supplemental Indenture April 1, 1992
Forty-fourth Supplemental Indenture July 1, 1992
Forty-fifth Supplemental Indenture December 1, 1992
Forty-sixth Supplemental Indenture March 1, 1993
Forty-seventh Supplemental Indenture May 1, 1993
Forty-eighth Supplemental Indenture December 1, 1993
</TABLE>
which supplemental indentures were recorded in various
Parishes in the State of Louisiana; and
WHEREAS, in addition to the property described in the
Mortgage, as supplemented, the Company has acquired certain
other property, rights and interests in property; and
WHEREAS, the Florida Company or the Company has
heretofore issued, in accordance with the provisions of the
Mortgage, as supplemented, the following series of First
Mortgage Bonds:
<TABLE>
<CAPTION>
Principal Principal
Series Amount Amount
Issued Outstanding
- ----------------------- ------------- ------------
<S> <C> <C>
3% Series due 1974 $17,000,000 None
3 1/8% Series due 1978 10,000,000 None
3% Series due 1980 10,000,000 None
4% Series due 1983 12,000,000 None
3 1/8% Series due 1984 18,000,000 None
4 3/4% Series due 1987 20,000,000 None
5% Series due 1990 20,000,000 None
4 5/8% Series due 1994 25,000,000 $25,000,000
5 3/4% Series due 1996 35,000,000 35,000,000
5 5/8% Series due 1997 16,000,000 16,000,000
6 1/2% Series due September 1, 1997 18,000,000 18,000,000
7 1/8% Series due 1998 35,000,000 35,000,000
9 3/8% Series due 1999 25,000,000 None
9 3/8% Series due 2000 20,000,000 None
7 7/8% Series due 2001 25,000,000 18,700,000
7 1/2% Series due 2002 25,000,000 23,000,000
7 1/2% Series due November 1, 2002 25,000,000 15,259,000
8% Series due 2003 45,000,000 25,561,000
8 3/4% Series due 2004 45,000,000 None
9 1/2% Series due November 1, 1981 50,000,000 None
9 3/8% Series due September 1, 1983 50,000,000 None
8 3/4% Series due December 1, 2006 40,000,000 None
9% Series due January 1, 1986 75,000,000 None
10% Series due July 1,2008 60,000,000 None
10 7/8% Series due May 1, 1989 45,000,000 None
13 1/2% Series due November 1, 2009 55,000,000 None
15 3/4% Series due December 1, 1988 50,000,000 None
</TABLE>
<TABLE>
<CAPTION>
Principal Principal
Series Amount Amount
Issued Outstanding
- ----------------------- ------------- ------------
<S> <C> <C>
16% Series due April 1, 1991 $75,000,000 None
16 1/4% Series due December 1, 1991 100,000,000 None
12% Series due March 1, 1993 100,000,000 None
13 1/4% Series due March 1, 2013 100,000,000 None
13% Series due September 1, 2013 50,000,000 None
16% Series due August 1, 1994 100,000,000 None
14 3/4% Series due November 1, 2014 55,000,000 None
15 1/4% Series due December 1, 2014 35,000,000 None
14% Series due December 1, 1992 60,000,000 None
14 1/4% Series due December 1, 1995 15,000,000 None
10 1/2% Series due April 1, 1993 200,000,000 None
10 3/8% Series due November 1, 2016 280,000,000 None
Series 1988A due September 30, 1988 13,334,000 None
Series 1988B due September 30, 1988 10,000,000 None
Series 1988B due September 30, 1988 6,667,000 None
10.36% Series due December 1, 1995 75,000,000 $75,000,000
10 1/8% Series due April 1, 2020 95,000,000 95,000,000
Environmental Series A due June 1, 2021 52,500,000 52,500,000
Environmental Series B due April 1, 2022 20,940,000 20,940 000
7.74% Series due July 1,2002 179,000,000 179,000,000
8 1/2% Series due July 1,2022 90,000,000 90,000,000
Environmental Series C due December 1, 2022 25,120,000 25,120,000
6.00% Series due March 1, 2000 100,000,000 100,000,000
Environmental Series D due May 1, 2023 34,364,000 34,364,000
Environmental Series E due December 1, 2023 25,991,667 25,991,667
</TABLE>
which bonds are also hereinafter sometimes called bonds of
the First through [ ] Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the
form of each series of bonds (other than the First Series)
issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by
Resolution of the Board of Directors of the Company and that
the form of such series, as established by said Board of
Directors, shall specify the descriptive title of the bonds
and various other terms thereof, and may also contain such
provisions not inconsistent with the provisions of the Mort
gage as the Board of Directors may, in its discretion, cause
to be inserted therein expressing or referring to the terms
and conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among
other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the
Company by any provision of the Mortgage, whether such
power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or
surrendered or subjected to any restriction if at the time
unrestricted or to additional restrictions if already
restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of
any one or more series of bonds issued thereunder, or the
Company may cure any ambiguity contained therein, or in any
supplemental indenture, or may establish the terms and
provisions of any series of bonds (other than the First
Series) by an instrument in writing executed and
acknowledged by the Company in such manner as would be
necessary to entitle a conveyance of real estate to record
in all of the states in which any property at the time
subject to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create a new series
of bonds and to add to its covenants and agreements
contained in the Mortgage, as heretofore supplemented,
certain other covenants and agreements to be observed by it
and to alter and amend in certain respects the covenants and
provisions contained in the Mortgage, as heretofore
supplemented; and
WHEREAS, the execution and delivery by the Company of
this [ ] Supplemental Indenture, and the terms
of the bonds of the [ ] Series, hereinafter
referred to, have been duly authorized by the Board of
Directors of the Company by appropriate Resolutions of said
Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and
of One Dollar to it duly paid by the Trustees at or before
the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees
and in order further to secure the payment both of the
principal of and interest and premium, if any, on the bonds
from time to time issued under the Mortgage, according to
their tenor and effect and the performance of all the
provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the
Mortgage provided) and of said bonds, hereby grants,
bargains, sells, releases, conveys, assigns, transfers,
mortgages, hypothecates, affects, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as
defined in Section 6 of the Mortgage) unto Mark F.
McLaughlin and (to the extent of its legal capacity to hold
the same for the purposes hereof) to Bank of Montreal Trust
Company, as Trustees under the Mortgage, and to their
successor or successors in said trust, and to said Trustees
and their successors and assigns forever, all of the
property now owned by the Company and specifically described
in the Mortgage, as supplemented, and all the following
described properties of the Company, whether now owned or
hereafter acquired, namely:
PARAGRAPH ONE
The Electric Generating Plants, Plant Sites and
Stations, and all ownership interests therein, of the
Company, including all electric works, power houses,
buildings, pipe lines and structures owned by the Company
and all land of the Company on which the same are situated,
and all of the Company's lands, together with the buildings
and improvements thereon, and all rights, ways, servitudes,
prescriptions, and easements, rights-of-way, permits,
privileges, licenses, poles, wires, machinery, implements,
equipment and appurtenances, forming a part of said plants,
sites or stations, or any of them, or used or enjoyed, or
capable of being used or enjoyed in conjunction with any of
said power plants, sites, stations, lands and property, and
all ownership interests of the Company in and with regard to
all of the foregoing.
PARAGRAPH TWO
The Electric Substations, Switching Stations, Microwave
installations and UHF-VHF installations of the Company, and
the Sites therefor, including all buildings, structures,
towers, poles, all equipment, appliances and devices for
transforming, converting, switching, transmitting and
distributing electric energy, and for communications, and
the lands of the Company on which the same are situated, and
all of the Company's lands, rights, ways, servitudes,
prescriptions, easements, rights-of-way, machinery,
equipment, appliances, devices, licenses and appurtenances
forming a part of said substations, switching stations,
microwave installations or UHF-VHF installations, or any of
them, or used or enjoyed or capable of being used or enjoyed
in conjunction with any of them.
PARAGRAPH THREE
All and Singular the Miscellaneous Lands and Real
Estate or Rights and Interests therein of the Company now
owned, or, subject to the provisions of Section 87 of the
Mortgage, hereafter acquired during the existence of this
trust.
PARAGRAPH FOUR
The Electric Transmission Lines of the Company,
including the structures, towers, poles, wires, cables,
switch racks, conductors, transformers, pole type
substations, insulators and all appliances, devices and
equipment used or useful in connection with said
transmission lines and systems, and all other property,
real, personal or mixed, forming a part thereof or
appertaining thereto, together with all rights-of-way,
easements, prescriptions, servitudes, permits, privileges,
licenses, consents, immunities and rights for or relating to
the construction, maintenance or operation thereof, through,
over, under or upon any public streets or highways or other
lands, public or private.
PARAGRAPH FIVE
The Electric Submarine Cables of the Company, including
the wires, cables, switch racks, conductors, conduits,
transformers, substations, insulators and all appliances,
devices and equipment used or useful in connection with said
submarine cables, and all other property, real, personal or
mixed, forming a part thereof or appertaining thereto,
together with all rights-of-way, easements, prescriptions,
servitudes, permits, privileges, licenses, consents,
immunities and rights for or relating to the construction,
maintenance or operation thereof.
And also all extensions, replacements, branches, taps,
developments and improvements of said submarine cables, or
any of them, and all other submarine cables owned by the
Company wherever situated, whether now owned or hereafter
acquired and/or constructed, as well as all of the Company's
rights-of-way, easements, permits, privileges, licenses,
consents, immunities and rights for or relating to the
construction, maintenance or operation thereof, subject,
however, to the provisions of Section 87 of the Mortgage.
PARAGRAPH SIX
The Electric Distribution Lines and Systems of the
Company, including the structures, towers, poles, wires,
insulators and appurtenances, appliances, conductors,
conduits, cables, transformers, meters, regulator stations
and regulators, accessories, devices and equipment and all
of the Company's other property, real, personal or mixed,
forming a part of or used, occupied or enjoyed in connection
with or in anywise appertaining to said distribution lines
and systems, together with all of the Company's rights-of-
way, easements, permits, prescriptions, privileges,
municipal or other franchises, licenses, consents,
immunities and rights for or relating to the construction,
maintenance or operation thereof, through, over, under, or
upon any public streets or highways, public or private
lands, including all additions, improvements or replacements
to all of the distribution systems located in the
municipalities and parishes set forth in the Mortgage and in
the First through Forty-seventh Supplemental Indentures.
And also all branches, extensions, improvements and
developments of or appertaining to or connected with said
distribution lines, systems or any of them, and all other
distribution systems of the Company and parts and portions
thereof, wherever situated, whether connected or not
connected with any of the foregoing systems and whether now
owned or hereafter acquired, as well as all of the Company's
rights-of-way, easements, privileges, prescriptions,
permits, municipal or other franchises, consents and rights
for or relating to the construction, maintenance or
operation thereof or any part or portion thereof, through,
over, under or upon any public streets or highways or public
or private lands, whether now owned or hereafter acquired,
subject, however, to the provisions of Section 87 of the
Mortgage.
PARAGRAPH SEVEN
The certain franchises, privileges, permits, grants and
consents for the construction, operation and maintenance of
electric systems in, on and under streets, alleys, highways,
roads, and public grounds, areas and rights-of-way, and/or
for the supply and sale of electricity, and all rights
incident thereto, which were granted by the governing bodies
of the respective municipalities, parishes and public
authorities in the State of Louisiana.
Also all other franchises, privileges, permits, grants
and consents owned or hereafter acquired by the Company for
the construction, operation and maintenance of electric
systems in, on or under streets, alleys, highways, roads,
and public grounds, areas and rights-of-way and/or for the
supply and sale of electricity and all rights incident
thereto, subject, however, to the provisions of Section 87
of the Mortgage.
All other property, real, personal and mixed, acquired
by the Company after the date of the execution and delivery
of the Mortgage, in addition to property covered by the
First through Forty-seventh Supplemental Indentures (except
any herein or in the Mortgage or in said Supplemental
Indentures expressly excepted), now owned or, subject to the
provisions of Section 87 of the Mortgage, hereafter acquired
by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting
or impairing by the enumeration of the same the scope and
intent of the foregoing or of any general description
contained in this [ ] Supplemental Indenture)
all lands, power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, dams, dam
sites, aqueducts and all other rights or means for
appropriating, conveying, storing and supplying water; all
rights-of-way and roads; all plants for the generation of
electricity by steam, water and/or other power; all power
houses, gas plants, street lighting systems, standards and
other equipment incidental thereto, telephone, radio and
television systems, air-conditioning systems and equipment
incidental thereto, water works, water systems, steam heat
and hot water plants, substations, lines, service and supply
systems, bridges, culverts, tracks, ice or refrigeration
plants and equipment, offices, buildings and other
structures and the equipment thereof; all machinery,
engines, boilers, dynamos, electric, gas and other machines,
regulators, meters, transformers, generators, motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements,
apparatus, furniture and chattels; all municipal and other
franchises, consents, or permits; all lines for the
transmission and distribution of electric current, gas,
steam heat or water for any purpose, including towers,
poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith; all real estate,
lands, easements, servitudes, licenses, permits, franchises,
privileges, rights-of-way and other rights in or relating to
real estate or the occupancy of the same and (except as
herein or in the Mortgage, as heretofore supplemented,
expressly excepted) all the right, title and interest of the
Company in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed
in connection with any property hereinbefore or in the
Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in any wise appertaining to the aforesaid
property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the
provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product and profits
thereof, and all the estate, right, title and interest and
claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel
thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, all the property,
rights and franchises acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or
in any other way) after the date hereof (except any herein
or in the Mortgage, as heretofore supplemented, expressly
excepted), shall be and are as fully granted and conveyed
hereby and as fully embraced within the lien hereof and the
lien of the Mortgage, as if such property, rights and
franchises were now owned by the Company and were
specifically described herein and conveyed hereby.
PROVIDED THAT the following are not and are not
intended to be now or hereafter granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
hypothecated, affected, pledged, set over or confirmed
hereunder and are hereby expressly excepted from the lien
and operation of this [ ] Supplemental
Indenture and from the lien and operation of the Mortgage,
namely: (1) cash, shares of stock, bonds, notes and other
obligations and other securities not hereafter specifically
pledged, paid, deposited, delivered or held under the
Mortgage or covenanted so to be; (2) merchandise, equipment,
materials or supplies held for the purpose of sale in the
usual course of business and fuel, oil and similar materials
and supplies consumable in the operation of any properties
of the Company; rolling stock, buses, motor coaches,
automobiles and other vehicles and all aircraft; (3) bills,
notes and accounts receivable, judgments, demands and choses
in action, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage or
covenanted so to be; (4) the last day of the term of any
lease or leasehold which may hereafter become subject to the
lien of the Mortgage; (5) electric energy, gas, ice, and
other materials or products generated, manufactured,
produced or purchased by the Company for sale, distribution
or use in the ordinary course of its business; all timber,
minerals, mineral rights and royalties; (6) the Company's
franchise to be a corporation; and (7) any property
heretofore released pursuant to any provisions of the
Mortgage and not heretofore disposed of by the Company;
provided, however, that the property and rights expressly
excepted from the lien and operation of the Mortgage in the
above subdivisions (2) and (3) shall (to the extent
permitted by law) cease to be so excepted in the event and
as of the date that either or both of the Trustees or their
successor or successors in said trust or a receiver or
trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in
Article XIII of the Mortgage by reason of the occurrence of
a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD ALL such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed by the Company as aforesaid,
or intended so to be, unto Mark F. McLaughlin and (to the
extent of its legal capacity to hold the same for the
purposes hereof) to Bank of Montreal Trust Company, as
Trustees, and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon
the same terms, trusts and conditions and subject to and
with the same provisos and covenants as are set forth in the
Mortgage, as supplemented, this [ ]
Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions
contained in the Mortgage, as supplemented, shall affect and
apply to the property hereinbefore described and conveyed
and to the estate, rights, obligations and duties of the
Company and the Trustees and the beneficiaries of the trust
with respect to said property, and to the Trustees and their
successors as Trustees of said property in the same manner
and with the same effect as if said property had been owned
by the Company at the time of the execution of the Mortgage,
and had been specifically and at length described in and
conveyed to said Trustees by the Mortgage as a part of the
property therein stated to be conveyed.
The Company further covenants and agrees to and with
the Trustees and their successor or successors in said trust
under the Mortgage as follows:
ARTICLE I
[ ] Series OF BONDS
SECTION 1. There shall be a series of bonds designated
"Environmental Series [ ]" (herein sometimes called the "[
] Series"), each of which shall also bear the descriptive
title "First Mortgage Bond", and the form thereof, which
shall be established by Resolution of the Board of Directors
of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section
specified. Bonds of the [ ] Series (which
shall be limited in aggregate principal amount to
($ )) shall mature on [
], shall be issued as fully registered bonds in the
denomination of One Thousand Dollars and such other
denominations as the officers of the Company shall determine
to issue (such determination to be evidenced by the
execution and delivery thereof), shall be dated as in
Section 10 of the Mortgage provided, and the principal of,
and, to the extent permitted by the Mortgage, interest on
any overdue principal of, each said bond shall be payable at
the office or agency of the Company in the Borough of
Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is
legal tender for public and private debts.
(I) The bonds of the [ ] Series shall be
issued and delivered to, and registered in the name of, the
trustee under the Trust Indenture, dated as of [
] (hereinafter called the "St. Charles Indenture"), of the
Parish of St. Charles, Louisiana (hereinafter called the
"Parish"), relating to its
[ %] Environmental Revenue Bonds (Louisiana Power & Light
Company Project) Series [ ] (hereinafter called the
"St. Charles Bonds"), in order to evidence in part the
Company's obligation to make certain purchase price payments
under the Installment Sale Agreement, dated as of [
], between the Parish and the Company.
The obligation of the Company to make any payment of
principal of the bonds of the Fifty-second Series, whether
at maturity, upon redemption or otherwise, shall be reduced
by the amount of any reduction under the St. Charles
Indenture of the amount of the corresponding payment
required to be made by the Parish thereunder in respect of
the principal of the St. Charles Bonds. The Trustees may
conclusively presume that the obligation of the Company to
pay the principal of the bonds of the [ ]
Series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until the
Corporate Trustee shall have received a written notice
(which may be a facsimile followed by a hard copy) from the
trustee under the St. Charles Indenture, signed by its
President, a Vice President or a Trust Officer, stating that
the corresponding payment of principal of the St. Charles
Bonds has become due and payable and has not been fully paid
and specifying the amount of funds required to make such
payment.
(II) In the event that the St. Charles Bonds
outstanding under the St. Charles Indenture shall become
immediately due and payable pursuant to Section 10.2 of the
St. Charles Indenture, upon the occurrence of an Event of
Default under Section 10.1 (a) or (b) of the St. Charles
Indenture, all bonds of the [ ] Series then
outstanding shall be redeemed by the Company, on the date
such St. Charles Bonds shall have become immediately due and
payable, at the principal amount of the bonds of the [
] Series.
In the event that any St. Charles Bonds are to be
redeemed pursuant to Section 3.1 (b) of the St. Charles
Indenture, bonds of the [ ] Series, in a
principal amount equal, as nearly as practicable, to the sum
of (i) the principal amount of such St. Charles Bonds and
(ii) eight-twelfths (8/12) of the annual interest due on
such St. Charles Bonds, shall be redeemed by the Company, on
the date fixed for such redemption of St. Charles Bonds, at
the principal amount thereof.
The Trustees may conclusively presume that no
redemption of bonds of the [ ] Series is
required pursuant to this subsection (II) unless and until
the Corporate Trustee shall have received a written notice
(which may be a facsimile followed by a hard copy) from the
trustee under the St. Charles Indenture, signed by its
President, a Vice President or a Trust Officer, stating
that, as the case may be, the St. Charles Bonds have become
immediately due and payable pursuant to Section 10.2 of the
St. Charles Indenture, upon the occurrence of an Event of
Default under Section 10.1 (a) or (b) of the St. Charles
Indenture, or St. Charles Bonds are to be redeemed pursuant
to Section 3.1 (b) of the St. Charles Indenture and
specifying the date fixed for the redemption and the
principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the
St. Charles Indenture, as the holder of all the bonds of the
[ ] Series then outstanding.
(III) The Company hereby waives its right to have any
notice of any redemption pursuant to subsection (II) of this
Section 1 state that such notice is subject to the receipt
of the redemption moneys by the Corporate Trustee before the
date fixed for redemption. Notwithstanding the provisions of
Section 52 of the Mortgage, any such notice under such
subsection shall not be conditional.
(IV) At the option of the registered owner, any bonds
of the [ ] Series, upon surrender thereof for
cancellation at the office or agency of the Company in the
Borough of Manhattan, The City of New York, together with a
written instrument of transfer wherever required by the
Company, duly executed by the registered owner or by his
duly authorized attorney, shall (subject to the provisions
of Section 12 of the Mortgage) be exchangeable for a like
aggregate principal amount of bonds of the [
] Series of other authorized denominations.
Bonds of the [ ] Series shall not be
transferable except to any successor trustee under the St.
Charles Indenture, any such transfer to be made (subject to
the provisions of Section 12 of the Mortgage) at the office
or agency of the Company in the Borough of Manhattan, The
City of New York.
The Company hereby waives any right to make a charge
for any exchange or transfer of bonds of the [
] Series.
(V) The bonds of the [ ] Series may bear
such legends as may be necessary to comply with any law or
with any rules or regulations made pursuant thereto or with
the rules or regulations of any stock exchange or to conform
to usage with respect thereto.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2. Subject to any amendments provided for in
this [ ] Supplemental Indenture, the terms
defined in the Mortgage, as heretofore supplemented, shall,
for all purposes of this
[ ] Supplemental Indenture, have the meanings
specified in the Mortgage, as heretofore supplemented.
SECTION 3. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to
perform the same upon the terms and conditions herein and in
the Mortgage, as heretofore amended, set forth and upon the
following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency
of this [ ] Supplemental Indenture or for or in
respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each
and every term and condition contained in Article XVII of
the Mortgage, as heretofore amended, shall apply to and form
part of this [ ] Supplemental Indenture with
the same force and effect as if the same were herein set
forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this [ ]
Supplemental Indenture.
SECTION 4. Whenever in this [ ]
Supplemental Indenture either of the parties hereto is named
or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the Mortgage, as heretofore
amended, be deemed to include the successors and assigns of
such party, and all covenants and agreements in this [
] Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustees, or either of
them, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns
of such parties, whether so expressed or not.
SECTION 5. Nothing in this [ ]
Supplemental Indenture, expressed or implied, is intended,
or shall be construed, to confer upon, or give to, any
person, firm or corporation, other than the parties hereto
and the holders of the bonds and coupons Outstanding under
the Mortgage, any right, remedy or claim under or by reason
of this [ ] Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations,
promises and agreements in this [ ]
Supplemental Indenture contained by or on behalf of the
Company shall be for the sole and exclusive benefit of the
parties hereto, and of the holders of the bonds and coupons
Outstanding under the Mortgage.
SECTION 6. It is the intention and it is hereby agreed
that, so far as concerns that portion of the Mortgaged and
Pledged Property situated within the State of Louisiana, the
general language of conveyance contained in this [
] Supplemental Indenture is intended and shall be construed
as words of hypothecation and not of conveyance, and that,
so far as the said Louisiana property is concerned, this [
] Supplemental Indenture shall be considered as an act of
mortgage and pledge under the laws of the State of
Louisiana, and the Trustees herein named are named as
mortgagee and pledgee in trust for the benefit of themselves
and of all present and future holders of bonds and coupons
issued and to be issued under the Mortgage, and are
irrevocably appointed special agents and representatives of
the holders of the bonds and coupons issued and to be issued
under the Mortgage and vested with full power in their
behalf to effect and enforce the mortgage and pledge hereby
constituted for their benefit, or otherwise to act as herein
provided for.
SECTION 7. This [ ] Supplemental Indenture
shall be executed in several counterparts, each of which
shall be an original and all of which shall constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, LOUISIANA POWER & LIGHT COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one
of its Vice Presidents, and its corporate seal to be
attested by its Secretary or one of its Assistant
Secretaries, for and in its behalf, and BANK OF MONTREAL
TRUST COMPANY, in token of its acceptance of the trust
hereby created, has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one
of its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant
Secretaries and MARK F. McLAUGHLIN, in token of his
acceptance of the trust hereby created, has hereunto set his
hand and affixed his seal, all as of the day and year first
above written.
LOUISIANA POWER & LIGHT
COMPANY
By ______________________________________
Attest:
____________________________________
Executed, sealed and delivered by
LOUISIANA POWER & LIGHT
COMPANY
in the presence of:
________________________________
________________________________
<PAGE>
BANK OF MONTREAL TRUST
COMPANY, As Corporate Trustee
By_____________________________________
Attest:
____________________________________
_____________________________________[L.S.]
Executed, sealed and delivered by
BANK OF MONTREAL TRUST
COMPANY and
MARK F. McLAUGHLIN
in the presence of:
____________________________________
____________________________________
<PAGE>
STATE OF LOUISIANA
} ss.:
PARISH OF ORLEANS
On this [ ] day of [ ], before
me appeared GLENN E. HARDER, to me personally known, who,
being by me duly sworn, did say that he is a Vice President
of LOUISIANA POWER & LIGHT COMPANY, and that the seal
affixed to the above instrument is the corporate seal of
said corporation and that said instrument was signed and
sealed in behalf of said corporation by authority of its
Board of Directors, and said GLENN E. HARDER acknowledged
said instrument to be the free act and deed of said
corporation.
On the [ ] day of [ ] in the year
[ ], before me personally came GLENN E. HARDER, to me
known, who, being by me duly sworn, did depose and say that
he resides at 106 West Ruelle, Mandeville, State of
Louisiana; that he is a Vice President of LOUISIANA POWER &
LIGHT COMPANY, one of the corporations described in and
which executed the above 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
order of the Board of Directors of said corporation, and
that he signed his name thereto by like order.
________________________________________
NOTARY PUBLIC
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
On this [ ] day of [ ],
before me appeared [ ], to me
personally known, who, being by me duly sworn, did say that
she is an Assistant Vice President of BANK OF MONTREAL TRUST
COMPANY, and that the seal affixed to the above instrument
is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said
AMY S. ROBERTS acknowledged said instrument to be the free
act and deed of said corporation.
On the [ ] day of [ ] in the
year [ ], before me personally came [
], to me known, who, being by me duly sworn, did depose and
say that he resides at [
] that he is an Assistant Vice President of BANK OF MONTREAL
TRUST COMPANY, one of the corporations described in and
which executed the above instrument; that she knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal, that it was so affixed by
order of the Board of Directors of said corporation, and
that she signed her name thereto by like order.
_________________________________________
NOTARY PUBLIC, STATE OF NEW YORK
<PAGE>
STATE OF NEW YORK
} ss.:
COUNTY OF NEW YORK
On this [ ] day of [ ],
before me appeared MARK F. McLAUGHLIN, to me known to be the
person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as
his free act and deed.
On the [ ] day of [ ],
before me personally came MARK F. McLAUGHLIN, to me known to
be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same.
_________________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Exhibit A-4
(TEMPORARY REGISTERED BOND)
[(See legend at the end of this bond for
restrictions on transferability and change of form)]
LOUISIANA POWER & LIGHT COMPANY
First Mortgage Bond, ___% Series due ____
TR- $
LOUISIANA POWER & LIGHT COMPANY, a corporation of the
State of Louisiana (hereinafter called the "Company"), for value
received, hereby promises to pay to
or registered assigns, on ____________, at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debts,
and to pay to the registered owner hereof interest thereon from
the ___________ or _________ next preceding the date of this
bond, at the rate of __% per annum in like coin or currency at
said office or agency on __________ and _________ in each year,
until the principal of this bond shall have become due and
payable, and to pay interest on any overdue principal at the rate
of 6% per annum.
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, ___% Series due ____, all
bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking or other fund,
established in accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for the
bonds of any particular series) by the Company's Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, including the ___________ Supplemental Indenture dated
as of ____________, called the "Mortgage"), dated as of April 1,
1944, to The Chase National Bank of the City of New York (Bank of
Montreal Trust Company, successor) and Carl E. Buckley (Mark F.
McLaughlin, successor), as Trustees. Reference is made to the
Mortgage for a description of the property mortgaged and pledged,
the nature and extent of the security, the rights of the holders
of the bonds and of the Trustees in respect thereof, the duties
and immunities of the Trustees and the terms and conditions upon
which the bonds are and are to be secured and the circumstances
under which additional bonds may be issued. With the consent of
the Company and to the extent permitted by and as provided in the
Mortgage, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the
terms and provisions of the Mortgage may be modified or altered
by such affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
In the manner prescribed in the Mortgage, this bond is
transferable by the registered owner hereof in person, or by his
duly authorized attorney, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, upon surrender
and cancellation of this bond, together with a written instrument
of transfer whenever required by the Company duly executed by the
registered owner or by his duly authorized attorney, and
thereupon a new fully registered bond of the same series for a
like principal amount will be issued to the transferee in
exchange herefor as provided in the Mortgage. The Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of
this series, upon surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, are exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized
denominations.
In the manner prescribed in the Mortgage, this
temporary bond is exchangeable at the office or agency of the
Company in the Borough of Manhattan, The City of New York,
without charge, for a definitive bond or bonds of the same series
of a like aggregate principal amount when such definitive bonds
are prepared and ready for delivery.
The bonds of this series are subject to redemption as
provided in the ___________ Supplemental Indenture.
To the extent provided in the Mortgage, the Company
shall not be required to make transfers or exchanges of bonds of
any series for a period of ten days next preceding any interest
payment date for bonds of said series, or next preceding any
designation of bonds of said series to be redeemed, and the
Company shall not be required to make transfers or exchanges of
any bonds designated in whole or in part for redemption.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or
any past, present or future subscriber to the capital stock,
stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or
through the Company or any predecessor or successor corporation,
under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors
being released by the holder or owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Corporate Trustee under the Mortgage,
or its successor thereunder, shall have signed the form of
authentication certificate endorsed hereon.
<PAGE>
IN WITNESS WHEREOF, LOUISIANA POWER & LIGHT COMPANY has
caused this bond to be signed in its corporate name by its
President or one of its Vice Presidents by his signature or a
facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
DATED:
LOUISIANA POWER & LIGHT COMPANY,
By______________________________
Vice President
Attest:
____________________
Assistant Secretary
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned Mortgage.
BANK OF MONTREAL TRUST COMPANY,
as Corporate Trustee,
By______________________________
Authorized Signature
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in
part for certificated bonds registered in the names of the
various beneficial holders hereof as then certified to the
Corporate Trustee by the Depository Trust Company or its
successor (the "Depositary"), this bond may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such
successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds
registered in the names of the various beneficial owners hereof
if (a) the Depositary is at any time unwilling or unable to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, or (b) the Company
elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).]
Exhibit A-5
(TEMPORARY REGISTERED BOND)
This bond is not transferable except to a successor
trustee under the Trust Indenture, dated as of ____________
(hereinafter called the "St. Charles Indenture"), between the
Parish of St. Charles, Louisiana (hereinafter called the
"Parish") relating to its _____% Environmental Revenue Bonds
(Louisiana Power & Light Company Project) Series ______
(hereinafter called the "St. Charles Bonds") and
_____________________________________, as trustee.
LOUISIANA POWER & LIGHT COMPANY
First Mortgage Bond, Environmental Series ___
TR- $
LOUISIANA POWER & LIGHT COMPANY, a corporation of the
State of Louisiana (hereinafter called the "Company"), for value
received, hereby promises to pay to
or registered assigns, on ____________, at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debts,
without interest until the principal of this bond shall have
become due and payable, and to pay interest on any overdue
principal at the rate of 6% per annum.
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, Environmental Series __, all
bonds of all series issued and to be issued under and equally
secured (except in so far as any sinking or other fund,
established in accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for the
bonds of any particular series) by the Company's Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, including the ___________ Supplemental Indenture dated
as of ____________, called the "Mortgage"), dated as of April 1,
1944, to The Chase National Bank of the City of New York (Bank of
Montreal Trust Company, successor) and Carl E. Buckley (Mark F.
McLaughlin, successor), as Trustees. Reference is made to the
Mortgage for a description of the property mortgaged and pledged,
the nature and extent of the security, the rights of the holders
of the bonds and of the Trustees in respect thereof, the duties
and immunities of the Trustees and the terms and conditions upon
which the bonds are and are to be secured and the circumstances
under which additional bonds may be issued. With the consent of
the Company and to the extent permitted by and as provided in the
Mortgage, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the
terms and provisions of the Mortgage may be modified or altered
by such affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
This bond is not transferable except to any successor
trustee under the ___________ Indenture, any such transfer to be
made in the manner prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, upon surrender and cancellation of this
bond, together with a written instrument of transfer whenever
required by the Company duly executed by the registered owner or
by his duly authorized attorney and thereupon a new fully
registered temporary or definitive bond of the same series for a
like principal amount will be issued to the transferee in
exchange herefor as provided in the Mortgage. The Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of
this series, upon surrender thereof, for cancellation, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, are exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized
denominations.
In the manner prescribed in the Mortgage, this
temporary bond is exchangeable at the office or agency of the
Company in the Borough of Manhattan, The City of New York,
without charge, for a definitive bond or bonds of the same series
of a like aggregate principal amount when such definitive bonds
are prepared and ready for delivery.
The bonds of this series are subject to redemption as
provided in the ___________ Supplemental Indenture.
To the extent provided in the Mortgage, the Company
shall not be required to make transfers or exchanges of bonds of
any series for a period of ten days next preceding any interest
payment date for bonds of said series, or next preceding any
designation of bonds of said series to be redeemed, and the
Company shall not be required to make transfers or exchanges of
any bonds designated in whole or in part for redemption.
The bonds of this series have been issued in order to
evidence in part the obligation of the Company to make certain
purchase price payments under the Installment Sale Agreement,
dated as of ____________, between the Parish and the Company.
The obligation of the Company to make any payment of
the principal of the bonds of this series, whether at maturity,
upon redemption or otherwise, shall be reduced by the amount of
any reduction under the St. Charles Indenture of the amount of
the corresponding payment required to be made by the Parish
thereunder in respect of the principal of the St. Charles Bonds.
Bank of Montreal Trust Company, Corporate Trustee, and
Mark F. McLaughlin, Co-Trustee, may conclusively presume that the
obligation of the Company to pay the principal of the bonds of
this series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall
have received a written notice (which may be a facsimile followed
by a hard copy) from the trustee under the St. Charles Indenture,
signed by its President, a Vice President or a Trust Officer,
stating that the corresponding payment of principal of the St.
Charles Bonds has become due and payable and has not been fully
paid and specifying the principal amount of St. Charles Bonds
then due and payable and the amount of funds required to make
such payment.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or
any past, present or future subscriber to the capital stock,
stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or
through the Company or any predecessor or successor corporation,
under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors
being released by the holder or owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Corporate Trustee under the Mortgage,
or its successor thereunder, shall have signed the form of
authentication certificate endorsed hereon.
<PAGE>
IN WITNESS WHEREOF, LOUISIANA POWER & LIGHT COMPANY has
caused this bond to be signed in its corporate name by its
President or one of its Vice Presidents by his signature or a
facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
DATED:
LOUISIANA POWER & LIGHT COMPANY,
By______________________________
Vice President
Attest:
____________________
Assistant Secretary
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned Mortgage.
BANK OF MONTREAL TRUST COMPANY,
as Corporate Trustee,
By______________________________
Authorized Signature
Exhibit A-10
__________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
LOUISIANA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
Section 310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
Section 311 (a) 913
(b) 913
(c) 913
Section 312 (a) 1001
(b) 1001
(c) 1001
Section 313 (a) 1002
(b) 1002
(c) 1002
Section 314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
Section 316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
Section 317 (a)(1) 803
(a)(2) 804
(b) 603
Section 318 (a) 107
</TABLE>
INDENTURE, dated as of _________________, between
LOUISIANA POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Louisiana (herein called
the "Company"), having its principal office at 639 Loyola Avenue,
New Orleans, Louisiana 70113, and
_______________________________________, 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:
Louisiana Power & Light 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LOUISIANA POWER & LIGHT COMPANY
By:_____________________________
[SEAL]
ATTEST:
__________________________
______________________________,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 Louisiana Power & Light Company,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF ___________________________ )
) 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-11
No._______________
Cusip No.__________
[FORM OF FACE OF DEBENTURE]
LOUISIANA POWER & LIGHT COMPANY
[Designation of the Security will be inserted here]
LOUISIANA POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of Louisiana
(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 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.
LOUISIANA POWER & LIGHT 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 _______, 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 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-12
__________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
LOUISIANA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
Section 310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
Section 311 (a) 913
(b) 913
(c) 913
Section 312 (a) 1001
(b) 1001
(c) 1001
Section 313 (a) 1002
(b) 1002
(c) 1002
Section 314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
Section 316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
Section 317 (a)(1) 803
(a)(2) 804
(b) 603
Section 318 (a) 107
</TABLE>
<PAGE>
INDENTURE, dated as of _________________, between
LOUISIANA POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of
Louisiana (herein called the "Company"), having its
principal office at 639 Loyola Avenue, New Orleans,
Louisiana 70113, and
_______________________________________, 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
delivery 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
defined 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
Commission, 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, performing 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
request 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.
"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 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:
Louisiana Power & Light 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, 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 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; 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 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.
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 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.
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 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.
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 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)
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 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 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 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 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 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.
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 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 (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
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 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
(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 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 $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, 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
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LOUISIANA POWER & LIGHT COMPANY
By:______________________________
[SEAL]
ATTEST:
_______________________
______________________________, 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 Louisiana Power & Light
Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
<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 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-13
No._______________
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE]
LOUISIANA POWER & LIGHT COMPANY
[Designation of the Security will be inserted here]
LOUISIANA POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of Louisiana
(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 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.
LOUISIANA POWER & LIGHT 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 _______, 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-14
__________________________________________
LOUISIANA POWER & LIGHT COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities and
relating to Preferred Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
LOUISIANA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
Section 310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
Section 311 (a) 913
(b) 913
(c) 913
Section 312 (a) 1001
(b) 1001
(c) 1001
Section 313 (a) 1002
(b) 1002
(c) 1002
Section 314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
Section 316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
Section 317 (a)(1) 803
(a)(2) 804
(b) 603
Section 318 (a) 107
</TABLE>
<PAGE>
INDENTURE, dated as of _________________, between
LOUISIANA POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Louisiana (herein called
the "Company"), having its principal office at 639 Loyola Avenue,
New Orleans, Louisiana 70113, and
_______________________________________, 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:
Louisiana Power & Light 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, 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, all as of the
day and year first above written.
LOUISIANA POWER & LIGHT 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 Louisiana Power & Light
Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF ____________________ )
) 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-15
No._______________
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE
(RELATING TO PREFERRED SECURITIES)]
LOUISIANA POWER & LIGHT COMPANY
[Designation of the Security will be inserted here]
LOUISIANA POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of Louisiana
(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.
LOUISIANA POWER & LIGHT 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 B-1
____________, 1996
To prospective purchasers
of the First Mortgage Bonds of
Louisiana Power & Light Company
Gentlemen:
Louisiana Power & Light Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $575,000,000 aggregate principal
amount of its First Mortgage Bonds ("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,
LOUISIANA POWER & LIGHT COMPANY
By:
_______________________________
__
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
LOUISIANA POWER & LIGHT 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
[FORM OF FIRST MORTGAGE BOND UNDERWRITING AGREEMENT]
WSP&R
DRAFT
8/21/95
LOUISIANA POWER & LIGHT COMPANY
$_______________
First Mortgage Bonds
____% Series due _________
UNDERWRITING AGREEMENT
_________ __, ___
[UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
The undersigned, Louisiana Power & Light Company, a
Louisiana corporation (the "Company"), proposes to issue and sell
to you, as Underwriter, an aggregate of $_________ principal
amount of the Company's First Mortgage Bonds, ____% Series due
________ __, _____ (the "Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to you, and you shall purchase from the Company,
at the time and place herein specified, the Bonds at _____% of
the principal amount of the Bonds [plus accrued interest thereon
from _____________ ___, ____, to the Closing Date (as defined
herein)].
SECTION 2. Description of Bonds. The Bonds shall be
issued under and pursuant to the Company's Mortgage and Deed of
Trust, dated as of April 1, 1944 with Bank of Montreal Trust
Company (successor to The Chase Manhattan Bank (National
Association)), as Corporate Trustee, and Z. George Klodnicki
(successor to J.A. Payne), as Co-Trustee (the Co-Trustee,
together with the Corporate Trustee, are hereinafter called the
"Trustees"), as supplemented and as the same shall be further
supplemented by the _____ Supplemental Indenture, dated as of
__________ __, ____ (the "Supplemental Indenture"). Said
Mortgage and Deed of Trust, as supplemented and as the same shall
be further supplemented by the Supplemental Indenture, is
hereinafter referred to as the "Mortgage". The Bonds and the
Supplemental Indenture shall have the terms and provisions
described in the Prospectus hereinafter referred to, provided
that subsequent to the date hereof and prior to the Closing Date
the form of the Supplemental Indenture may be amended by mutual
agreement between the Company and you.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to you, and
covenants and agrees with you, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Louisiana and has the necessary corporate power and
authority to conduct the business which it is described in
the Prospectus (hereinafter defined) as conducting and to
own and operate the properties owned and operated by it in
such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration
Statement on Form S-3 (File No. 33-33607) (the "1990
Registration Statement") for the registration of
$275,000,000 aggregate principal amount of the Company's
First Mortgage Bonds (the "First Mortgage Bonds") under the
Securities Act of 1933, as amended (the "Securities Act"),
and the 1990 Registration Statement has become effective.
While an aggregate of $175,000,000 of such First Mortgage
Bonds remained unsold, the Company also filed with the
Commission a Registration Statement on Form S-3 (File No. 33-
46085) (the "1992 Registration Statement") for the
registration of $325,000,000 aggregate principal amount of
First Mortgage Bonds under the Securities Act, and the 1992
Registration Statement has become effective. The combined
prospectus forming a part of the 1992 Registration Statement
and relating, pursuant to Rule 429 under the Securities Act
to an aggregate of $500,000,000 principal amount of First
Mortgage Bonds (of which an aggregate principal amount of
$_______ of such First Mortgage Bonds remain unsold),
including the Bonds, at the time the 1992 Registration
Statement became effective, including all documents
incorporated by reference therein at that time pursuant to
Item 12 of Form S-3, is hereinafter referred to as the
"Basic Prospectus". In the event that the Basic Prospectus
shall have been amended, revised or supplemented (but
excluding any amendments, revisions or supplements to the
Basic Prospectus relating solely to First Mortgage Bonds
other than the Bonds) prior to the time of effectiveness of
this Underwriting Agreement, and with respect to any
documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the time the 1992 Registration
Statement became effective and up to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely
to First Mortgage Bonds other than the Bonds), which
documents are deemed to be incorporated by reference in the
Basic Prospectus, the term "Basic Prospectus" as used herein
shall also mean such prospectus as so amended, revised or
supplemented. The 1992 Registration Statement in the form
in which it became effective and as it may have been amended
by any amendment thereto included in the Basic Prospectus
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus), and the
Basic Prospectus as it shall be supplemented to reflect the
terms of offering and sale of the Bonds by a prospectus
supplement (a "Prospectus Supplement") to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act ("Rule 424"), are hereinafter
referred to as the "Registration Statement" and the
"Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file any amendment to the
1990 Registration Statement or the Registration Statement
(except any amendment relating solely to First Mortgage
Bonds other than the Bonds) or supplement to the Prospectus
and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company
will not file any document that is to be incorporated by
reference in, or any supplement (including the Prospectus
Supplement) to, the Basic Prospectus, in either case,
without prior notice to you and to Winthrop, Stimson, Putnam
& Roberts ("Counsel for the Underwriter"), and (iii) within
either of the time periods specified in clauses (i) or (ii),
the Company will not file any such amendment or supplement
to which said Counsel shall reasonably object on legal
grounds in writing. For purposes of this Underwriting
Agreement, any document that is filed with the Commission
after the time of effectiveness of this Underwriting
Agreement and incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely
to First Mortgage Bonds other than the Bonds) pursuant to
Item 12 of Form S-3 shall be deemed a supplement to the
Prospectus.
(d) The 1990 Registration Statement and the
Registration Statement, at the respective times of their
effectiveness, and the Mortgage, at such times, fully
complied, and the Prospectus, when filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 and at the Closing Date (hereinafter defined), as it may
then be amended or supplemented, will fully comply, in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder or pursuant to said rules and
regulations are or will be deemed to comply therewith. The
documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date such documents
were first filed with the Commission pursuant to the
Exchange Act, fully complied or will fully comply in all
material respects with the applicable provisions of the
Exchange Act and the rules and regulations of the Commission
thereunder or pursuant to said rules and regulations are or
will be deemed to comply therewith. On the later of
(i) their respective dates of effectiveness under the
Securities Act or (ii) the date that the Company's most
recent Annual Report on Form 10-K was filed with the
Commission under the Exchange Act (the date described in
either clause (i) or (ii) is hereinafter referred to as the
"Effective Date"), the 1990 Registration Statement and the
Registration Statement did not, and on the date that any
post-effective amendment to the 1990 Registration Statement
and the Registration Statement became or becomes effective
(but excluding any post-effective amendment relating solely
to First Mortgage Bonds other than the Bonds), the 1990
Registration Statement and the Registration Statement, as
amended by any such post-effective amendment, did not or
will not, as the case may be, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date, the Prospectus as it
may be amended or supplemented will not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made,
not misleading, and on said dates and at such times the
documents then incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, when read together with the
Prospectus, or the Prospectus as it may then be amended or
supplemented, will not include an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading. The foregoing representations and
warranties in this paragraph (c) shall not apply to
statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
by you or on your behalf specifically for use in connection
with the preparation of the 1990 Registration Statement or
the Registration Statement or the Prospectus, as they may be
amended or supplemented, or to any statements in, or
omissions from, the statements of eligibility, as either may
be amended, under the Trust Indenture Act, of the Trustees
under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any term or provision of, or
constitute a default under, the Mortgage or any other
financing agreement or instrument to which the Company is
now a party.
(e) Except as set forth or contemplated in the
Prospectus as it may be amended or supplemented, the Company
possesses adequate franchises, licenses, permits, and other
rights to conduct its business and operations as now
conducted, without any known conflicts with the rights of
others which could have a material adverse effect on the
Company.
SECTION 4. Offering. The Company is advised by you
that you propose to make a public offering of the Bonds as soon
after the time of effectiveness of this Underwriting Agreement as
in your judgment is advisable. The Company is further advised by
you that the Bonds will be offered to the public at the initial
public offering price specified in the Prospectus Supplement
[plus accrued interest thereon from _________ __, ____ to the
Closing Date].
SECTION 5. Time and Place of Closing. Delivery of the
Bonds and payment of the purchase price therefor by wire transfer
of immediately available funds shall be made at the offices of
Reid & Priest LLP, 40 West 57th Street, New York, New York, at
10:00 A.M., New York time, on _________ __, ____, or at such
other time on the same or such other day as shall be agreed upon
by the Company and you. The hour and date of such delivery and
payment are herein called the "Closing Date".
The Bonds shall be delivered to you in book-entry form
through the facilities of The Depository Trust Company in New
York, New York. The certificates for the Bonds shall be in the
form of one or more typewritten bonds in fully registered form,
in the aggregate principal amount of the Bonds, and registered in
the name of Cede & Co., as nominee of The Depository Trust
Company. The Company agrees to make the Bonds available to you
for checking not later than 2:30 P.M., New York time, on the last
business day preceding the Closing Date at such place as may be
agreed upon between you and the Company, or at such other time
and/or date as may be agreed upon between you and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with you that:
(a) Not later than the Closing Date, the Company will
deliver to you a copy of the 1990 Registration Statement and
the Registration Statement, as originally filed with the
Commission, and of all amendments thereto relating to the
Bonds, certified by an officer of the Company to be in the
form filed.
(b) The Company will deliver to you as many copies of
the Prospectus (and any amendments or supplements thereto)
as you may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424(b) and will advise you
promptly of the issuance of any stop order under the
Securities Act with respect to the 1990 Registration
Statement or the Registration Statement or the institution
of any proceedings therefor of which the Company shall have
received notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to secure
the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement shall have become effective as you are required by
law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be
advised by you in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will
amend or supplement, or cause to be amended or supplemented,
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to you a reasonable number of
copies of a supplement or supplements or an amendment or
amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange
Act, which will supplement or amend the Prospectus, so that,
as supplemented or amended, it will not include an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading. Unless such event relates solely
to your activities (in which case you shall assume the
expense of preparing any such amendment or supplement), the
expenses of complying with this Section 6(d) shall be borne
by the Company until the expiration of nine months from the
date of the Prospectus, and such expenses shall be borne by
you thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise will cooperate in qualifying
the Bonds for offer and sale under the blue-sky laws of such
jurisdictions as you may reasonably designate, provided that
the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by it to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
or cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the 1990 Registration Statement, the Registration Statement
and any post-effective amendments thereto, (ii) the
printing, issuance and delivery of the Bonds and the
preparation, execution, printing and recordation of the
Supplemental Indenture, (iii) legal fees and expenses
relating to the qualification of the Bonds under the blue-
sky laws of various jurisdictions in an amount not to exceed
$3,500, (iv) the printing and delivery to you of reasonable
quantities of copies of the 1990 Registration Statement, the
Registration Statement, the Preliminary (and any
Supplemental) Blue Sky Survey and the Prospectus and any
amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section 6, (v) fees of the
rating agencies in connection with the rating of the Bonds,
and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. in connection with its review of
the terms of the offering. Except as provided above, the
Company shall not be required to pay any amount for any of
your expenses, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 7, 8 or 11, the Company will reimburse you for (i)
the fees and expenses of Counsel for the Underwriter, whose
fees and expenses you agree to pay in any other event, and
(ii) reasonable out-of-pocket expenses, in an amount not
exceeding in the aggregate $15,000, incurred in
contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
you for damages on account of loss of anticipated profits.
(h) The Company will not sell any additional First
Mortgage Bonds without your consent until the earlier to
occur of (i) the Closing Date or (ii) the date of the
termination of the fixed price offering restrictions
applicable to you. You agree to notify the Company of such
termination if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to you a supplemental opinion of counsel for the Company,
addressed to you, stating that all such recordings,
registrations and filings have been made.
SECTION 7. Conditions of Underwriter's Obligations.
Your obligations to purchase and pay for the Bonds shall be
subject to the accuracy on the date hereof and on the Closing
Date of the representations and warranties made herein on the
part of the Company and of any certificates furnished by the
Company and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and you.
(b) No stop order suspending the effectiveness of the
1990 Registration Statement or the Registration Statement
shall be in effect at or prior to the Closing Date; no
proceedings for such purpose shall be pending before, or, to
your knowledge or the knowledge of the Company, threatened
by, the Commission on the Closing Date; and you shall have
received a certificate of the Company, dated the Closing
Date and signed by the President or a Vice President of the
Company, to the effect that no such stop order has been or
is in effect and that no proceedings for such purpose are
pending before, or, to the knowledge of the Company,
threatened by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"),
authorizing the issuance and sale of the Bonds and the
execution of the Supplemental Indenture on the terms set
forth in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, you shall have received from
___________, Esq., ___________ of Entergy Services, Inc. and
Reid & Priest LLP, each counsel to the Company, opinions,
dated the Closing Date, substantially in the forms set forth
in Exhibits A and B hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and you
with the approval of Counsel for the Underwriter, and (ii)
if the Prospectus shall be supplemented after being
furnished to you for use in offering the Bonds, with changes
therein to reflect such supplementation.
(e) At the Closing Date, you shall have received from
Counsel for the Underwriter, an opinion, dated the Closing
Date, substantially in the form set forth in Exhibit C
hereto, with such changes therein as may be necessary to
reflect any supplementation of the Prospectus prior to the
Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, you shall have received from Coopers
& Lybrand L.L.P., the Company's independent certified public
accountants (the "Accountants"), a letter dated the date
hereof and addressed to you to the effect that (i) they are
independent certified public accountants with respect to the
Company, within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii)
in their opinion, the financial statements and financial
statement schedules audited by them and included or
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act, and
the related published rules and regulations thereunder;
(iii) on the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the latest
unaudited financial statements, if any, included or
incorporated by reference in the Prospectus, a reading of
the latest available interim unaudited financial statements
of the Company, the minutes of the meetings of the Board of
Directors of the Company, the Executive Committee thereof,
and the stockholder(s) of the Company, since December 31,
199_ to a specified date not more than five days prior to
the date of such letter or letters, and inquiries of
officers of the Company who have responsibility for
financial and accounting matters (it being understood that
the foregoing procedures do not constitute an examination
made in accordance with generally accepted auditing
standards and that they would not necessarily reveal matters
of significance with respect to the comments made in such
letter and, accordingly, that the Accountants make no
representations as to the sufficiency of such procedures for
your purposes), nothing has come to their attention which
caused them to believe that, to the extent applicable, (A)
unaudited financial statements of the Company included or
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder; (B) any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally
accepted accounting principles; and (C) at a specified date
not more than five business days prior to the date of the
letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company set forth in the Prospectus and
specified in Exhibit D hereto to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, you shall have received a
certificate of the Company, dated the Closing Date and
signed by the President or a Vice President of the Company,
to the effect that (i) the representations and warranties of
the Company contained herein are true and correct, (ii) the
Company has performed and complied with all agreements and
conditions in this Underwriting Agreement to be performed or
complied with by the Company at or prior to the Closing
Date, and (iii) since the most recent date as of which
information is given in the Prospectus, as it may be amended
or supplemented, there has not been any material adverse
change in the business, property or financial condition of
the Company, and there has not been any material transaction
entered into by the Company, other than transactions in the
ordinary course of business, in each case other than as
referred to in, or contemplated by, such Prospectus, as it
may be amended or supplemented.
(h) At the Closing Date, you shall have received duly
executed counterparts of the Supplemental Indenture.
(i) At the Closing Date, you shall have received from
the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five business days
prior to the Closing Date, the statements contained in the
letter delivered pursuant to Section 7(f) hereof.
[(j) At the Closing Date, you shall have received from
Deloitte & Touche LLP a letter, dated the Closing Date, with
respect to certain financial information contained in the
Prospectus, as mutually agreed to by you and the Company.]
(k) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Mortgage shall have occurred.
(l) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of the
Company's outstanding First Mortgage Bonds in any respect.
(m) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in your reasonable opinion,
materially impairs the investment quality of the Bonds.
(n) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriter.
(o) The Company will furnish you with additional
conformed copies of such opinions, certificates, letters and
documents as you may reasonably request.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by you upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party, except as otherwise provided in paragraph (g) of Section 6
and in Section 10.
SECTION 8. Conditions of the Company's Obligations.
The obligations of the Company hereunder shall be subject to the
following conditions:
[(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date determined by the
Company and approved by you.]
(b) No stop order suspending the effectiveness of the
1990 Registration Statement or the Registration Statement
shall be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and the sale of the Bonds,
an order of the Commission under the 1935 Act authorizing
the issuance and sale of the Bonds and the execution of the
Supplemental Indenture on the terms set forth in, or
contemplated by, this Underwriting Agreement.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to you[, provided
that, in the case of paragraph (a) above, the Company shall have
used its best efforts to comply with the requirements of
Rule 424(b)]. Any such termination shall be without liability of
any party to any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless you and each person who controls you within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which you or any of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse you and any such controlling
person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the 1990
Registration Statement or the Registration Statement, as amended
or supplemented, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein
not misleading, or upon an untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus
(if used prior to the date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424),
or the Prospectus, as amended or supplemented (if any amendments
or supplements thereto shall have been made), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement
contained in this paragraph shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of,
or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by
you specifically for use in connection with the preparation of
the Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424) or the 1990 Registration Statement, the Registration
Statement or the Prospectus or any amendment or supplement to any
thereof or arising out of, or based upon, statements in or
omissions from that part of the 1990 Registration Statement or
the Registration Statement which shall constitute the statements
of eligibility under the Trust Indenture Act of the Trustees; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to your benefit or to the benefit of
any person controlling you on account of any such losses, claims,
damages, liabilities, expenses or actions arising from the sale
of Bonds to any person in respect of the Basic Prospectus or the
Prospectus, as supplemented or amended furnished by you to a
person to whom any of the Bonds were sold (excluding in both
cases, however, any document then incorporated or deemed
incorporated by reference therein pursuant to Item 12 of Form S-
3), insofar as such indemnity relates to any untrue or misleading
statement or omission made in the Basic Prospectus or the
Prospectus but eliminated or remedied prior to the consummation
of such sale in the Prospectus, or any amendment or supplement
thereto furnished pursuant to Section 6(d) hereof, respectively,
unless a copy of the Prospectus (in the case of such a statement
or omission made in the Basic Prospectus) or such amendment or
supplement (in the case of such a statement or omission made in
the Prospectus) (excluding, however, any amendment or supplement
to the Basic Prospectus relating to any First Mortgage Bonds
other than the Bonds and any document incorporated or deemed
incorporated by reference in the Prospectus or such amendment or
supplement) is furnished by you to such person (i) with or prior
to the written confirmation of the sale involved or (ii) as soon
as available after such written confirmation.
(b) You shall indemnify, defend and hold harmless the
Company, its directors and officers and each person who controls
any of the foregoing within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities or in connection
with defending any action, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the 1990 Registration Statement or the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in, the Basic Prospectus (if used prior to the
date the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424(b)), or the Prospectus, as
amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each
case, if (but only if) such statement or omission was made in
reliance upon and in conformity with information furnished herein
or in writing to the Company by you specifically for use in
connection with the preparation of the Basic Prospectus (if used
prior to the date the Prospectus is filed with, or transmitted
for filing to, the Commission pursuant to Rule 424(b)) or of the
1990 Registration Statement, the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the 1990 Registration Statement, the Registration Statement, the
Basic Prospectus or the Prospectus (including amendments or
supplements thereto), against any party or parties in respect of
which indemnity may be sought pursuant to any of the preceding
paragraphs, such party or parties (hereinafter called the
indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and you from the offering of the Bonds or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one
hand and of you on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and you on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (after
deducting underwriting discounts and commissions but before
deducting expenses) to the Company bear to the total underwriting
discounts and commissions received by you, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and of you on the
other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by you and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and you agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), you
shall not be required to contribute any amount in excess of the
amount by which the total price at which the Bonds underwritten
by you and distributed to the public were offered to the public
exceeds the amount of any damages which you have otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on your behalf or by or on behalf of the
Company or its directors or officers, or any of the other persons
referred to in Section 9 hereof and (ii) acceptance of
and payment for the Bonds and (b) the indemnity and contribution
agreements contained in Section 9 shall remain operative and in
full force and effect regardless of any termination of this
Underwriting Agreement.
SECTION 11. Termination. This Underwriting Agreement
shall be subject to termination by notice given by written notice
from you to the Company, if (a) after the execution and delivery
of this Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended on the New York Stock
Exchange by The New York Stock Exchange, Inc., the Commission or
other governmental authority, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by The New York Stock Exchange, Inc., the
Commission or other governmental authority, (iii) a general
moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the
case of any of the events specified in clauses (a) (i) through
(iv), such event singly or together with any other such event
makes it, in your reasonable judgment, impracticable to market
the Bonds. This Underwriting Agreement shall also be subject to
termination, upon notice by you as provided above, if, in your
judgment, the subject matter of any amendment or supplement
(prepared by the Company) to the Prospectus (except for
information relating solely to the manner of public offering of
the Bonds or to your activity or to the terms of any series of
First Mortgage Bonds not included in the Bonds) filed or issued
after the effectiveness of this Underwriting Agreement by the
Company shall have materially impaired the marketability of the
Bonds. Any termination hereof, pursuant to this Section 11,
shall be without liability of any party to any other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 10.
SECTION 12. Miscellaneous. THIS UNDERWRITING
AGREEMENT SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND
INTERPRETATION SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Underwriting Agreement may be executed in any number
of separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original and all of which,
taken together, shall constitute but one and the same agreement.
This Underwriting Agreement shall become effective at the time a
fully-executed copy thereof is delivered to the Company and to
you. This Underwriting Agreement shall inure to the benefit of
each of the Company, you and, with respect to the provisions of
Section 9, each director, officer and other persons referred to
in Section 9, and their respective successors. Should any part
of this Underwriting Agreement for any reason be declared
invalid, such declaration shall not affect the validity of any
remaining portion, which remaining portion shall remain in full
force and effect as if this Underwriting Agreement had been
executed with the invalid portion thereof eliminated. Nothing
herein is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of any provision in this
Underwriting Agreement. The term "successor" as used in this
Underwriting Agreement shall not include any purchaser, as such
purchaser, of any Bonds from you.
SECTION 13. Notices. All communications hereunder
shall be in writing and, if to you, shall be mailed or delivered
to you to the attention of your General Counsel at the address
set forth at the beginning of this Underwriting Agreement or, if
to the Company, shall be mailed or delivered to it at 639 Loyola
Avenue, New Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
LOUISIANA POWER & LIGHT COMPANY
By:___________________________
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITER]
By:________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
_________ __, ____
[Underwriter]
[Address]
Ladies and Gentlemen:
I am counsel for Louisiana Power & Light Company (the
"Company") and have acted in that capacity in connection with the
issuance and sale by the Company to you, pursuant to the
agreement effective _________ __, ____ (the "Underwriting
Agreement"), between the Company and you, of $_________ in
aggregate principal amount of its First Mortgage Bonds, ____%
Series due _________ __, ____ (the "Bonds"), issued pursuant to
the Company's Mortgage and Deed of Trust, dated as of April 1,
1944, as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto, including the ____
Supplemental Indenture (the "Supplemental Indenture") dated as of
_________ __, ____ (the Mortgage and Deed of Trust as so amended
and supplemented being hereinafter referred to as the
"Mortgage"). This opinion is rendered to you at the request of
the Company.
I am familiar with the organization of the Company, the
Restated Articles of Incorporation and By-Laws of the Company,
both as amended, and the records of various corporate and other
proceedings relating to the authorization, issuance and sale of
the Bonds. I have participated in the preparation of or have
examined and am familiar with (a) the Mortgage; (b) the
Underwriting Agreement; (c) the 1990 Registration Statement, the
Registration Statement and the Prospectus filed under the
Securities Act; and (d) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (the application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration").
I have examined the orders of the Commission (or
appropriate evidence thereof) relating to the effectiveness of
the 1990 Registration Statement and the Registration Statement,
the qualification of the Mortgage under the Trust Indenture Act
and the Application-Declaration. I have also examined such other
documents and satisfied myself as to such other matters as I have
deemed necessary in order to render this opinion. In such
examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals,
and the conformity to the originals of the documents submitted to
me as certified or photostatic copies. I have not examined the
Bonds, except a specimen thereof, and I have relied upon a
certificate of Bank of Montreal Trust Company as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Upon the basis of my familiarity with the foregoing and
with the Company's properties and affairs generally, and subject
to the foregoing and to the further exceptions and qualifications
set forth below, I am of the opinion that:
(1) The Company is a corporation duly organized
and validly existing under the laws of the State of
Louisiana.
(2) The Company is duly authorized by its
Restated Articles of Incorporation, as amended, to conduct
the utility business which it is described in the Prospectus
as conducting, and possesses adequate, valid and subsisting
franchises, certificates of public convenience and
necessity, licenses and permits in order to, and is duly
qualified to, conduct such business in the State of
Louisiana.
(3) The Company has good and sufficient title to
the properties described as owned by it in and as subject to
the lien of the Mortgage (except properties released under
the terms of the Mortgage), subject only to Excepted
Encumbrances as defined in the Mortgage and to minor defects
and encumbrances customarily found in properties of like
size and character that do not materially impair the use of
such properties by the Company. The description of such
properties set forth in the Mortgage is adequate to
constitute the Mortgage as a lien thereon; subject to
paragraph (4) hereof, the Mortgage, subject only to minor
defects and such Excepted Encumbrances, constitutes a valid,
direct first mortgage lien upon said properties, which
include substantially all of the permanent physical
properties and franchises of the Company (other than those
expressly excepted). All permanent physical properties and
franchises (other than those expressly excepted) acquired by
the Company after the date of the Supplemental Indenture
will, upon such acquisition, become subject to the lien of
the Mortgage, subject, however, to such Excepted
Encumbrances and to liens, if any, existing or placed
thereon at the time of the acquisition thereof by the
Company and except as limited by bankruptcy law.
(4) It will be necessary to record the
Supplemental Indenture in all of the Parishes in Louisiana
in which the Company owns property and to file with the
Recorder of Mortgages for the Parish of Orleans, Louisiana,
a Louisiana Form UCC-3 amending UCC File No. 36-58323 to
include the Supplemental Indenture before the liens created
by the Supplemental Indenture become effective as to and
enforceable against third parties. However, all permanent
physical properties and franchises of the Company (other
than those expressly excepted in the Mortgage) presently
owned by the Company are subject to the lien of the
Mortgage, subject to minor defects and Excepted Encumbrances
of the character referred to in paragraph (3) hereof.
(5) The Mortgage has been duly and validly
authorized by all necessary corporate action on the part of
the Company, has been duly and validly executed and
delivered by the Company, is a legal, valid and binding
instrument enforceable against the Company in accordance
with its terms, except (i) as the same may be limited by the
laws of the State of Louisiana, where the property covered
thereby is located, affecting the remedies for the
enforcement of the security provided for therein, which laws
do not, in my opinion, make inadequate remedies necessary
for the realization of the benefits of such security, and
(ii) as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and is qualified under the Trust Indenture
Act, and no proceedings to suspend such qualification have
been instituted or, to my knowledge, threatened by the
Commission.
(6) The Bonds are legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors'
rights and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and are entitled to the benefit of the
security afforded by the Mortgage.
(7) The statements made in the Prospectus under
the captions ["Description of the New Bonds"] insofar as
they purport to constitute summaries of the documents
referred to therein, or of the benefits purported to be
afforded by such documents (including, without limitation,
the lien of the Mortgage), constitute accurate summaries of
the terms of such documents and of such benefits in all
material respects.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and
other financial or statistical data included or incorporated
by reference therein, upon which I do not pass, the 1990
Registration Statement and the Registration Statement, at
the respective times of their effectiveness, and the
Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act, complied as
to form in all material respects with the applicable
requirements of the Securities Act and (except with respect
to the parts of the 1990 Registration Statement and the
Registration Statement that constitute the statements of
eligibility of the Trustees, upon which we are not passing)
the Trust Indenture Act, and the applicable instructions,
rules and regulations of the Commission thereunder or
pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the
documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3, such
documents or portions thereof, on the date first filed with
the Commission, complied as to form in all material respects
with the applicable provisions of the Exchange Act, and the
applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; the
1990 Registration Statement and the Registration Statement
have become and are effective under the Securities Act; and,
to the best of my knowledge, no stop order suspending the
effectiveness of the 1990 Registration Statement or the
Registration Statement has been issued and no proceedings
for a stop order with respect thereto are pending or
threatened under Section 8(d) of the Securities Act.
(10) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to
become effective the Application-Declaration with respect to
the issuance and sale of the Bonds; to the best of my
knowledge, said order is in full force and effect; such
order is sufficient to authorize the issuance and sale of
the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent
or other order of any governmental body (other than under
the Securities Act which has been duly obtained or in
connection or compliance with the provisions of the
securities blue-sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
(11) The issuance and sale by the Company of the
Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Mortgage (a)
will not violate any provision of the Company's Restated
Articles of Incorporation or By-laws, each as amended, (b)
will not violate any provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any Louisiana law or regulation
applicable to the Company (other than the Louisiana
securities or blue-sky laws, upon which I am not passing)
or, to the best of my knowledge (having made due inquiry
with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality
applicable to the Company.
In connection with the preparation by the Company of
the 1990 Registration Statement, the Registration Statement and
the Prospectus, I have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, with the independent certified public accountants of
the Company who audited or reviewed the financial statements
included or incorporated by reference in the 1990 Registration
Statement and the Registration Statement, and with your
representatives. My review of the 1990 Registration Statement,
the Registration Statement and the Prospectus and my discussions
did not disclose to me any information which gives me reason to
believe that the 1990 Registration Statement or the Registration
Statement, at the Effective Date, contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the time first filed
with the Commission pursuant to Rule 424 under the Securities Act
and at the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
I do not express any belief as to the financial statements or
other financial or statistical data included or incorporated by
reference in the 1990 Registration Statement, the Registration
Statement or the Prospectus, as to the parts of the 1990
Registration Statement and the Registration Statement that
constitute the statements of eligibility of the Trustees or as to
the information contained in the Prospectus Supplement under the
caption ["Description of the New Bonds - Book-Entry Bonds"].
I have examined the portions of the information
contained in the 1990 Registration Statement and the Registration
Statement that are stated therein to have been made on my
authority, and I believe such information to be correct. I have
also examined the opinions of even date herewith rendered to you
by Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts, and
I concur in the conclusions expressed therein insofar as they
involve questions of Louisiana law.
I am a member of the Louisiana Bar and do not hold
myself out as an expert on the laws of any other state. As to
all matters of New York law, I have relied, with your approval,
upon the opinion of even date herewith addressed to you by Reid &
Priest LLP of New York, New York.
With respect to the opinions set forth in paragraphs 5
and 6 above, it is noted that the provisions of the Atomic Energy
Act of 1954, as amended, and the regulations promulgated
thereunder impose certain licensing and other requirements upon
persons such as, for example, the Trustees or other purchasers
pursuant to the remedial provisions of the Mortgage who seek to
acquire, possess or use nuclear production facilities.
The opinion set forth above is solely for the benefit
of the addressee of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Bonds, and it may not be
relied upon in any manner by any other person or for any other
purpose, without my prior written consent, except that Reid &
Priest LLP and Winthrop, Stimson, Putnam & Roberts may rely on
this opinion as to all matters of Louisiana law in rendering
their opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
______ __, ____
[Underwriter]
[Address]
Ladies and Gentlemen:
With reference to the issuance and sale by Louisiana
Power & Light Company (the "Company") to you, pursuant to the
agreement effective _____ __, ____ (the "Underwriting
Agreement"), between the Company and you, of $__________ in
aggregate principal amount of its First Mortgage Bonds, ____%
Series due _____________ (the "Bonds"), issued under the
Company's Mortgage and Deed of Trust, dated as of April 1, 1944,
as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto, including the ______
Supplemental Indenture dated as of _____ __, ____ (the Mortgage
and Deed of Trust as so supplemented being hereinafter called the
"Mortgage"), we advise you that we are of counsel to the Company
and in that capacity have participated in the preparation of or
have examined and are familiar with (1) the Mortgage; (2) the
1990 Registration Statement, the Registration Statement and the
Prospectus filed under the Securities Act; (3) the Underwriting
Agreement; and (4) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (the application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration"). This opinion is rendered to you at the request of
the Company.
We have participated in the preparation of or reviewed
the corporate proceedings with respect to the issuance and sale
of the Bonds. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed
necessary to enable us to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to originals of the documents submitted to us
as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except (i) as the same may
be limited by the laws of the State of Louisiana, where the
property covered thereby is located, affecting the remedies for
the enforcement of the security provided for therein, and (ii) as
the same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and are entitled
to the benefit of the security afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions ["Description of the New Bonds"] insofar as they purport
to constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Louisiana, has due corporate power and authority to conduct
the business which it is described as conducting in the
Prospectus and to own and operate the properties owned and
operated by it in such business and is duly qualified to conduct
such business in the State of Louisiana.
(6) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the 1990
Registration Statement and the Registration Statement, at the
respective times of their effectiveness, and the Prospectus, at
the time first filed with the Commission pursuant to Rule 424
under the Securities Act, complied as to form in all material
respects with the applicable requirements of the Securities Act
and (except with respect to the parts of the 1990 Registration
Statement and the Registration Statement that constitute the
statements of eligibility of the Trustees, upon which we are not
passing) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the 1990 Registration Statement and the Registration
Statement have become and are effective under the Securities Act;
and, to the best of our knowledge, no stop order suspending the
effectiveness of the 1990 Registration Statement or the
Registration Statement has been issued and no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(7) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to become
effective the Application-Declaration with respect to the
issuance and sale of the Bonds; to the best of our knowledge,
said order is in full force and effect; such order is sufficient
to authorize the issuance and sale of the Bonds by the Company
pursuant to the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act which has been duly obtained
or in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
In passing upon the forms of the 1990 Registration
Statement, the Registration Statement and the Prospectus, we
necessarily assume the correctness, completeness and fairness of
the statements made by the Company and information included or
incorporated by reference in the 1990 Registration Statement, the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 3 above. In connection with
the preparation by the Company of the 1990 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the 1990 Registration Statement and
the Registration Statement, and with your representatives. Our
review of the 1990 Registration Statement, the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that the
1990 Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act and at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements
or other financial or statistical data included or incorporated
by reference in the 1990 Registration Statement, the Registration
Statement or the Prospectus, as to the parts of the 1990
Registration Statement and the Registration Statement that
constitute the statements of eligibility of the Trustees or as to
the information contained in the Prospectus Supplement under the
caption ["Description of the New Bonds - Book-Entry Bonds"].
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Louisiana law, we have relied upon the opinion of
even date herewith addressed to you by ____________, Esq.,
____________ of Entergy Services, Inc. We have not examined into
and are not passing upon matters relating to titles to property,
franchises or the lien of the Mortgage.
With respect to the opinions set forth in paragraphs 1
and 2 above, it is noted that the provisions of the Atomic Energy
Act of 1954, as amended, and the regulations promulgated
thereunder impose certain licensing and other requirements upon
persons such as, for example, the Trustees or other purchasers
pursuant to the remedial provisions of the Mortgage who seek to
acquire, possess or use nuclear production facilities.
The opinion set forth above is solely for the benefit
of the addressee of this letter in connection with the
Underwriting Agreement and the transactions contemplated
thereunder, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Bonds, and it may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent, except that
_________, Esq., may rely on this opinion as to all matters of
New York law in rendering its opinion required to be delivered
under the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_____ __, ____
[Underwriter]
[Address]
New York, New York 10020
Ladies and Gentlemen:
We have acted as counsel for you as the underwriter of
$__________ in aggregate principal amount of First Mortgage
Bonds, ____% Series due _______, ____ (the "Bonds"), issued by
Louisiana Power & Light Company (the "Company") under the
Company's Mortgage and Deed of Trust, dated as of April 1, 1944,
as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto, including the _____
Supplemental Indenture dated as of _______, ____ (said Mortgage
and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"), pursuant to the
agreement between you and the Company effective _____ __, ____
(the "Underwriting Agreement").
We are members of the New York Bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by __________,
Esq., ____________ of Entergy Services, Inc., as to the matters
covered in such opinion relating to Louisiana law. We have
reviewed said opinion and believe that it is satisfactory. We
have also reviewed the opinion of Reid & Priest LLP required by
Section 7(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
We have also examined such documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to the originals of the
documents submitted to us as certified or photostatic copies. We
have not examined the Bonds, except a specimen thereof, and we
have relied upon a certificate of Bank of Montreal Trust Company
as to the authentication and delivery thereof. We have not
examined into, and are expressing no opinion or belief as to
matters relating to, incorporation of the Company, titles to
property, franchises or the lien of the Mortgage. Capitalized
terms used herein and not otherwise defined have the meanings
ascribed to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except (i) as the same may
be limited by the laws of the State of Louisiana, where the
property covered thereby is located, affecting the remedies for
the enforcement of the security provided for therein and (ii) as
the same may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and is qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and are entitled
to the benefit of the security purported to be afforded by the
Mortgage.
(3) The statements made in the Prospectus under the
captions [Description of the New Bonds"] insofar as they purport
to constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to become
effective the application-declaration, as amended, filed by the
Company with the Commission under the 1935 Act with respect to
the issuance and sale of the Bonds; to the best of our knowledge,
said order is in full force and effect; such order is sufficient
to authorize the issuance and sale of the Bonds by the Company
pursuant to the Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental body
(other than under the Securities Act which has been duly obtained
or in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction) is legally
required to permit the issuance and sale of the Bonds by the
Company pursuant to the Underwriting Agreement.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the 1990
Registration Statement and the Registration Statement, at their
respective times of effectiveness, and the Prospectus, at the
time first filed with the Commission pursuant to Rule 424 under
the Securities Act, complied as to form in all material respects
with the applicable requirements of the Securities Act and
(except with respect to the parts of the 1990 Registration
Statement and the Registration Statement that constitute the
statements of eligibility of the Trustees, upon which we are not
passing) the Trust Indenture Act, and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the 1990 Registration Statement and the Registration
Statement have become and are effective under the Securities Act;
and, to the best of our knowledge, no stop order suspending the
effectiveness of the 1990 Registration Statement or the
Registration Statement has been issued and no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
In passing upon the forms of the 1990 Registration
Statement, the Registration Statement and the Prospectus, we
necessarily assume the correctness, completeness and fairness of
the statements made by the Company and information included or
incorporated by reference in the 1990 Registration Statement, the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 3 above. In connection with
the preparation by the Company of the 1990 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the 1990 Registration Statement and
the Registration Statement, and with your representatives. Our
review of the 1990 Registration Statement, the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information that gives us reason to believe that the
1990 Registration Statement or the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with the Commission
pursuant to Rule 424 under the Securities Act and at the date
hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements
or other financial or statistical data included or incorporated
by reference in the 1990 Registration Statement, the Registration
Statement or the Prospectus, as to the parts of the 1990
Registration Statement and the Registration Statement that
constitute the statements of eligibility of the Trustees or as to
the information contained in the Prospectus Supplement under the
caption ["Description of the New Bonds - Book-Entry Bonds"].
With respect to the opinions set forth in paragraphs 1
and 2 above, it is noted that the provisions of the Atomic Energy
Act of 1954, as amended, and the regulations promulgated
thereunder impose certain licensing and other requirements upon
persons such as, for example, the Trustees or other purchasers
pursuant to the remedial provisions of the Mortgage who seek to
acquire, possess or use nuclear production facilities.
This opinion is solely for the benefit of the addressee
hereof in connection with the Underwriting Agreement and the
transactions contemplated thereunder and may not be relied upon
in any manner by any other person or for any other purpose,
without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT D
table format used; use macro nolines for printing
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
Exhibit B-3
_______________, 1996
To prospective purchasers of Preferred Stock,
Cumulative, $25 Par Value, and/or Preferred
Stock, Cumulative, $100 Par Value of
Louisiana Power & Light Company
Gentlemen:
Louisiana Power & Light Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time (i) not to exceed 4,400,000 shares of its
Preferred Stock, Cumulative, $25 Par Value and/or (ii) not
to exceed 1,100,000 shares of its Preferred Stock,
Cumulative, $100 Par Value; provided, however, that the
aggregate par value of Preferred Stock issued shall not
exceed $110,000,000 (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 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,
LOUISIANA POWER & LIGHT COMPANY
By:_________________________________
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
LOUISIANA POWER & LIGHT COMPANY
Summary of Terms
Relating to the Purchase of Preferred Stock, Cumulative,
$25 Par Value ("$25 Preferred"),
and/or Preferred Stock, Cumulative,
$100 Par Value ("$100 Preferred"),
of a Particular Series
Number of Shares To be designated by the Company in the
Notice.
Par Value $25 per share 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, shall be as
set forth in the Underwriting
Agreement submitted by the successful
purchaser or purchasers and shall be
(i) a multiple of 0.16% (4/25ths of
1%) in the case of $25 Preferred and
(ii) a multiple of 0.04% (1/25th of
1%) in the case of $100 Preferred.
Dividend Rights See the accompanying Prospectus relating
to the Stock.
Price to the Company Not less than $25.00 nor more than $25.70
per share in the case of $25 Preferred
and not less than $100.00 nor more
than $102.75 per share in the case of
$100 Preferred, 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.
_______________________________
* (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.
- -------------------------------
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.
Exhibit B-5
Trust Indenture
This Trust Indenture dated as of _______________ by and
between the Parish of St. Charles, 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 authorized and empowered under the
laws of the State of Louisiana, including particularly Sections
991 through 1001, inclusive, of Title 39 of the Louisiana Revised
Statutes of 1950, as amended (the "Act"), to acquire, purchase,
lease, rent, construct or improve and sell, lease or otherwise
dispose of industrial plant sites and industrial plant buildings,
including facilities for the generation of electricity and
production of steam and other forms of energy, pollution
abatement and control facilities, and necessary property and
appurtenances thereto; and
WHEREAS, the Issuer proposes to acquire certain solid waste
disposal, sewage, air pollution control and/or water pollution
control facilities (the "Facilities") from Louisiana Power &
Light Company, a Louisiana corporation (the "Company"), at Unit 3
(nuclear) of the Company's Waterford Steam Electric Generating
Station located in St. Charles Parish, at Taft, Louisiana (the
"Plant"), which Facilities are to be acquired by the Issuer by
purchase from the Company and resold to the Company pursuant to
the terms of an Installment Sale Agreement dated as of
_______________ between the Issuer and the Company (the "Sale
Agreement"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer proposes to issue its revenue bonds under
the Act for the purpose of financing a portion of the cost of
acquiring, constructing and equipping the Facilities and paying a
portion of the expenses of authorizing and issuing said bonds;
and
WHEREAS, the Company proposes to sell the Facilities to the
Issuer and to repurchase the Facilities from the Issuer, all upon
the terms and conditions set forth in the Sale Agreement; and
WHEREAS, the execution and delivery of this Trust Indenture
and the issuance of said revenue bonds under this Trust Indenture
pursuant to the aforesaid statutory authority have been in all
respects duly and validly authorized by ordinance adopted by the
governing authority of the Issuer; and
WHEREAS, the Issuer has authorized the issuance hereunder of
$20,400,000 aggregate principal amount of its Environmental
Revenue Bonds (Louisiana Power & Light Company Project) Series
_______________ (the "Series _______________ Bonds"), the
proceeds of which are to be used to purchase the Facilities; and
WHEREAS, the Series _______________ Bonds bear interest,
mature and are subject to redemption as set forth in this Trust
Indenture; and
WHEREAS, all things necessary to make the Series
_______________ 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 Series
_______________ 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 Series _______________ 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 Series _______________ 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 Sale
Agreement (except for the rights of the Issuer under Sections
5.5, 5.6, 5.7, 6.3 and 8.5 of the Sale Agreement and any rights
of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the Sale
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 Sale Agreement.
II
All the rights and interest of the Issuer in and to the Bond
Fund and the Construction 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 5.5 hereof, which shall
be held by the Trustee in accordance with the provisions of said
Article IX or Section 5.5, 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 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 of any
particular series.
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 on its part, 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,
determine 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:
<PAGE>
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" shall mean Sections 991 through 1001, inclusive, of
Title 39 of the Louisiana Revised Statutes of 1950, as amended,
and all future acts supplemental thereto or amendatory thereof.
"Additional Bonds" shall mean Bonds in addition to the
Series _______________ Bonds which are issued under the
provisions of Section 2.11 of this Indenture.
"Administration Expenses" shall mean the reasonable and
necessary expenses incurred by the Issuer with respect to the
Sale Agreement, this Indenture and any transaction or event
contemplated by the Sale Agreement or this Indenture including
the compensation and reimbursement of expenses and advances
payable to the Trustee, any Paying Agent, and the Bond Registrar.
"Authorized Company Representative" shall mean 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.
"Bonds" shall mean the Series _______________ Bonds and all
Additional Bonds issued by the Issuer pursuant to this Indenture.
"Bond Counsel" shall mean any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" shall mean the fund by that name created and
established in Section 5.1 of this Indenture.
"Bond Registrar" shall mean the registrar of Bonds named
herein.
"Capital Account" shall mean any of the accounts by that
name created and established in Section 6.1 of this Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" shall mean Louisiana Power & Light Company, a
corporation organized and existing under the laws of the State of
Louisiana, and its permitted successors and assigns.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust, dated as of April 1, 1944, made to The Chase
National Bank of the City of New York and Carl E. Buckley, as
trustees (Bank of Montreal Trust Company and Mark F. McLaughlin,
successor trustees), as heretofore and hereafter amended and
supplemented.
"Company Mortgage Trustees" shall mean the trustees under
the Company Mortgage.
"Completion Date" shall mean the date of completion of
construction of the Facilities as that date shall be certified as
provided in Section 3.4 of the Sale Agreement.
"Construction Fund" shall mean the fund by that name created
and established in Section 6.1 of this Trust Indenture.
"Cost of Construction" shall mean all costs paid or incurred
by the Company with respect to the Facilities and the financing
thereof for the payment of which the Issuer is authorized to
issue bonds under the Act, more particularly identified in the
Sale Agreement.
"Event of Default" shall mean any event of default specified
in Section 10.1 hereof.
"Facilities" shall mean (i) the solid waste disposal
facilities and water pollution control facilities at the Plant to
be financed, in whole or in part, with the proceeds of Series
_______________ Bonds (including any changes in, additions to,
substitutions for or deletions of facilities or portions thereof
made under Section 3.3 of the Sale Agreement), which Facilities,
as presently contemplated by the existing Plans and
Specifications (as defined in the Sale Agreement), are generally
described in Exhibit A to the Sale Agreement, and (ii) any other
solid waste disposal, sewage, air pollution control and/or water
pollution control facilities at the Plant to be financed in whole
or in part with the proceeds of any Additional Bonds (including
any changes in, additions to, substitutions for or deletions of
facilities or portions thereof made under Section 3.3 of the Sale
Agreement).
"First Mortgage Bonds" shall mean the bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.3 of the Sale Agreement.
"Government Securities" shall mean (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 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" shall mean the registered owner of any Bond.
"Indenture" shall mean this Trust Indenture and all
amendments and supplements hereto.
"Investment Account" shall mean any of the accounts by that
name created and established in Section 6.1 of this Indenture.
"Issuer" shall mean the Parish of St. Charles, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"outstanding", when used with reference to the Bonds, shall
mean, 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.
"Parish President" shall mean the President of the Parish of
St. Charles, State of Louisiana.
"Paying Agent" shall mean 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 Series _______________ Bonds,
the Trustee is the original Paying Agent.
"Permitted Encumbrances" shall mean the rights of the
Issuer, the Company or the Trustee under the Sale Agreement, the
Indenture, the Sale Agreement dated as of May 1, 1984 between the
Issuer and the Company, the Trust Indenture dated as of May 1,
1984 between the Issuer and First National Bank of Commerce, as
trustee, the Sale Agreement dated as of November 1, 1984 between
the Issuer and the Company, the Trust Indenture dated as of
December 1, 1984 between the Issuer and First National Bank of
Commerce, as trustee, the Installment Sale Agreement dated as of
June 1, 1991 between the Issuer and the Company, the Trust
Indenture dated as of June 1, 1991 between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of April 1, 1992 between the Issuer and the
Company, the Trust Indenture dated as of April 1, 1992 between
the Issuer and First National Bank of Commerce, as trustee, the
Installment Sale Agreement dated as of December 1, 1992 between
the Issuer and the Company, the Trust Indenture dated as of
December 1, 1992 between the Issuer and First National Bank of
Commerce, as trustee, the Installment Sale Agreement dated as of
May 1, 1993 between the Issuer and the Company, the Trust
Indenture dated as of May 1, 1993 between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of December 1, 1993 between the Issuer and the
Company, the Trust Indenture dated as of December 1, 1993 between
the Issuer and First National Bank of Commerce, as trustee, the
Company Mortgage, and the following:
(a) Liens for taxes, levies, assessments, utility
rents, rates and charges, license, permit or other
authorization fees and other impositions, provided that in
each case the same shall either (i) not be due and payable,
(ii) not be delinquent to the extent that penalties for
nonpayment may then be assessed on the Facilities, or any
material portion thereof then be subject to forfeiture, or
(iii) be a lien the amount or validity of which is being
contested in good faith by the Company;
(b) Minor defects, irregularities, encumbrances,
licenses, rights of way, servitudes, restrictions, mineral
rights and clouds on title which, in the opinion of the
Company, do not significantly impair the operation of the
Facilities;
(c) Easements, servitudes, encumbrances, exceptions or
reservations for the purpose of pipelines, for telephones
and other means of communication, power lines and
substations, roads, streets, alleys, driveways, walkways,
highways, railroads and other means of transportation,
drainage and sewerage, conduits, dikes, canals, laterals,
ditches, for the removal of oil, gas, coal or other
minerals, and other like purposes, or for the joint or
common use of real property, facilities and equipment,
which, in the opinion of the Company, do not significantly
impair the operation of the Facilities;
(d) Mechanics', workmen's, repairmen's, materialmen's,
suppliers', vendors' or carriers' liens or other similar
liens, provided that the lien shall be discharged by the
Company in the ordinary course of business or the amount or
validity of the lien shall be contested in good faith with
any pending execution thereof appropriately stayed;
(e) Rights of the United States or any state or
political subdivision thereof (which for purposes of this
definition shall include any taxing or improvement
district), or other public or governmental authority or
agency, to take, use or control property or to terminate any
lease, right, power, franchise, grant, license or permit
previously in force;
(f) The pendency or filing of any application or
proceedings seeking to annex or rezone the Plant or any
portion thereof, or to include it in any political
subdivision;
(g) Rights acquired by any person with respect to any
portion of the Facilities as the result of such portion
becoming so much a part of other property as to be subject
to liens upon such property;
(h) Other liens, charges or encumbrances which
normally exist with respect to comparable property in the
locale in which the Facilities are situated and which, in
the opinion of the Company, do not significantly impair the
operation of the Facilities;
(i) Liens arising under or pursuant to La. R.S.
30:2281; and
(j) Liens arising under or pursuant to La. R.S. 10:9-
107 and 9-312(4) or otherwise with respect to purchase money
security interests.
"person" shall mean natural persons, firms, associations,
corporations and public bodies.
"Plant" shall mean Unit 3 (nuclear) of the Company's
Waterford Steam Electric Generating Station located in St.
Charles Parish, at Taft, Louisiana.
"Record Date" shall mean, with respect to any interest
payment date of the Bonds occurring on the first day of any
month, the fifteenth day of the calendar month next preceding
such interest payment date; and with respect to any interest
payment date of the Bonds occurring on the fifteenth day of any
month, the first day of such month.
"Revenues" shall mean 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 Sections 5.2 and 9.1 of the
Sale Agreement as the purchase price of the Facilities, and all
receipts of the Trustee credited under the provisions of this
Indenture against such payments.
"Sale Agreement" shall mean the Installment Sale Agreement
dated as of June 1, 1994 by and between the Issuer and the
Company, and any amendments and supplements thereto.
"Series _______________ Bonds" shall mean the initial issue
of Bonds under and secured by this Indenture in the aggregate
principal amount of $20,400,000.
"Trustee" shall mean 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, New Orleans, Louisiana.
"Trust Estate" shall mean 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.
<PAGE>
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 $20,400,000, except as provided in Sections
2.8, 2.11 and 2.12 hereof.
SECTION 2.2. Details of Series _______________ Bonds.
The Series _______________ Bonds (i) shall be designated "Parish
of St. Charles, State of Louisiana Environmental Revenue Bonds
(Louisiana Power & Light Company Project) Series
_______________", (ii) shall be in the aggregate principal amount
of $20,400,000, (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 ___________, 19____, and (vii) shall mature on
________________.
The Series _______________ 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. Overdue principal of the Series
_______________ Bonds shall bear interest at the rate of 6% per
annum until paid. Overdue installments of interest shall not
bear interest.
Series _______________ Bonds issued before ____________,
19___ shall be dated ___________, 19___, and Series
_______________ Bonds issued on or subsequent to ___________,
19___ 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 Series _______________ 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 Parish President and the Secretary of
the Parish Council (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 of any series and deliver said Bonds to
the original purchaser or purchasers thereof as may be directed
hereinafter in this Section 2.7, in Section 2.11 hereof, or in
any supplemental indenture.
Prior to the delivery on original issuance by the Trustee of
any authenticated Bonds of any series there shall be or have been
delivered to the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and, in the case of
Additional Bonds, a supplemental indenture by and between
the Issuer and the Trustee setting forth the details
concerning such Bonds.
(b) An original duly executed counterpart or a duly
certified copy of the Sale Agreement and, in the case of
Additional Bonds, an amendment of or supplement to the Sale
Agreement, if any.
(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 such series of Bonds as provided
in Section 5.3 of the Sale 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.
(e) A copy, duly certified by the Secretary of the
Parish Council, of the proceedings of the governing body of
the Issuer authorizing the issuance of the Bonds.
(f) In the case of any series of Additional Bonds, a
written opinion of Bond Counsel to the effect that the
issuance of such Bonds and the execution thereof have been
duly authorized, all conditions precedent to the delivery
thereof have been fulfilled, and that the exclusion of the
interest on the Series _______________ Bonds and any
Additional Bonds theretofore issued from gross income for
federal income tax purposes will not be affected by the
issuance of the Bonds being issued.
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. Additional Bonds. The Issuer, at the request
of the Company and to the extent permitted by law in effect at
the time thereof, may issue from time to time one or more series
of Additional Bonds for the purposes provided in Section 4.2 of
the Sale Agreement. Additional Bonds shall be secured equally
and ratably with the Series _______________ Bonds and any other
Additional Bonds theretofore issued and then outstanding, except
insofar as any sinking, amortization or other fund, or any terms
or conditions of redemption or purchase, established under this
Indenture may afford additional benefit or security for the Bonds
of any particular series, and except as set forth in Section 5.3
of the Sale Agreement. Before any Additional Bonds are
authenticated there shall be delivered to the Trustee the items
required for the issuance of Bonds by Section 2.7 hereof.
The right to issue Additional Bonds set forth in this
Indenture shall not imply that the Issuer may not issue, and the
Issuer expressly reserves the right to issue, to the extent
permitted by law, obligations under another indenture or
indentures to provide additional funds to pay the Cost of
Construction, or to refund all or any principal amount of all or
any series of Bonds, or any combination thereof, and the
provisions of this Indenture governing the issuance of Additional
Bonds shall not apply thereto.
The proceeds of the issuance and sale of any series of
Additional Bonds, including purchase premium, if any, and accrued
interest, if any, thereon to the date of delivery thereof paid by
the original purchasers thereof, shall be applied simultaneously
with the delivery of such Additional Bonds in the manner provided
in this Indenture and in the supplemental indenture authorizing
such Additional Bonds.
Notwithstanding anything herein to the contrary, no
Additional Bonds shall be issued unless (i) the Sale Agreement is
in effect, and (ii) at the time of issuance there is no Event of
Default (as defined in the Sale Agreement) under the Sale
Agreement or Event of Default under this Indenture.
SECTION 2.12. 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.
<PAGE>
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.1. Redemption Applicable to Series
_______________ Bonds Only. The Series _______________ Bonds
shall be subject to redemption prior to maturity as follows:
(a) The Series _______________ 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 or
the Plant shall have been condemned or taken by eminent
domain; or
(iv) the operation of the Facilities or the Plant 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 Series _______________ Bonds shall be subject to
mandatory redemption, at a redemption price equal to the
principal amount being redeemed plus accrued interest to the
redemption date, on the one hundred eightieth day (or such
earlier date as may be designated by the Company) after a final
determination by a court of competent jurisdiction or an
administrative agency to the effect that as a result of a failure
by the Company to perform or observe any covenant, agreement or
representation contained in the Sale Agreement, the interest
payable on the Series _______________ Bonds is included for
federal income tax purposes in the gross income of the owners
thereof, other than any owner who is a "substantial user" of the
Facilities or a "related person" within the meaning of Section
147(a) of the Code. No determination by any court or
administrative agency will be considered final unless the Company
has participated in the proceeding which resulted in such
determination, either directly or through a bondholder, to a
degree it reasonably deems sufficient and until the conclusion of
any appellate review sought by any party to such proceeding or
the expiration of the time for seeking such review. The Series
_______________ Bonds shall be redeemed either in whole or in
part in such principal amount that the interest payable on the
Series _______________ Bonds remaining outstanding after such
redemption would not be included in the gross income of any owner
thereof, other than an owner who is a "substantial user" of the
Facilities or a "related person" within the meaning of Section
147(a) of the Code.
(c) The Series _______________ 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 Series _______________ 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 102% 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 Series _______________ 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 Series _______________ Bonds shall be redeemed
only in the principal amount of $5,000 or any integral multiple
thereof.
SECTION 3.2. 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 con
clusively 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 3.3. Redemption Payments. Subject to the
provisions of the last paragraph of Section 3.2 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 3.4. 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 3.5. 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.
<PAGE>
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
SECTION 4.1. 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) are payable solely from 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
Sale Agreement (except for the rights of the Issuer under
Sections 5.5, 5.6, 5.7, 6.3 and 8.5 of the Sale Agreement and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the Sale
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 Revenues and the right, title and interest
of the Issuer in the Sale Agreement (except for the rights of the
Issuer under Sections 5.5, 5.6, 5.7, 6.3 and 8.5 of the Sale
Agreement and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications under the Sale Agreement), the Bond Fund and the
Construction Fund 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 4.2. 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 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 4.3. 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 4.4. Recordation and Other Instruments. The
Issuer and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Sale 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 4.5. 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 (including the records pertaining to
the Construction Fund) shall at all reasonable times be open to
inspection by such accountants or other agencies as the other
party may from time to time designate and by the Company.
SECTION 4.6. Rights Under Sale Agreement. The Sale
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
hereof the Sale 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 Sale Agreement, for and
on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
SECTION 4.7. 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 4.8. 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 4.9. 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 4.9 shall be binding upon the Issuer
and the Bondholders.
SECTION 4.10. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustees in accordance with the provisions of Section
5.3(d) and (e) of the Sale Agreement.
SECTION 4.11. Notice to Company Mortgage Trustees. 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 Trustees
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 of any series (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 Trustees 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.
<PAGE>
ARTICLE V
REVENUES AND FUNDS
SECTION 5.1. 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
St. Charles Environmental Revenue Bonds (Louisiana Power & Light
Company Project) Series _______________ Bond Fund".
SECTION 5.2. 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) Amounts transferred to the Bond Fund pursuant to the
provisions of Sections 6.4, 6.5, 6.6 and 6.7 hereof;
(c) All Revenues; and
(d) All moneys received by the Trustee under and pursuant
to any of the provisions of the Sale Agreement or this Indenture
which are not directed to be paid into a fund (or held) other
than the Bond Fund.
SECTION 5.3. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 5.8 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 5.4. Withdrawals from Bond Fund. The Bond Fund
shall be in the name of the Issuer, designated as set forth in
Section 5.1, 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 5.5. 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 5.6. Administration Expenses. It is understood
and agreed that pursuant to the provisions of Section 5.5 of the
Sale Agreement, the Company agrees to pay the Administration
Expenses of the Issuer. All such payments under the Sale
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 5.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund or the Construction 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 Sale Agreement calling for the Trustee to hold, administer
and disburse the same in accordance with the specific provisions
of the Sale Agreement shall be held, administered and disbursed
pursuant to such provisions, and where required by the provisions
of the Sale 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 Sale Agreement,
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 the provisions of the Sale Agreement pursuant to
which the Issuer may have received the same. Furthermore, if for
any reason the Sale 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 Sale Agreement that would be
applicable if the Sale 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 5.8. 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 Sale Agreement, whether such excess
amounts be in the Bond Fund or in special accounts.
<PAGE>
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 6.1. Creation of Construction Fund. There is
hereby created and ordered to be established with the Trustee a
special account of the Issuer to be designated "Parish of St.
Charles Environmental Revenue Bonds (Louisiana Power & Light
Company Project) Series _______________ Construction Fund". The
Trustee shall establish and maintain within the Construction
Fund, in respect of each series of Bonds issued hereunder, a
"Capital Account" and an "Investment Account."
SECTION 6.2. Payments into Construction Fund. The
proceeds from the issuance and sale of each series of Bonds,
other than accrued interest, if any, on such Bonds to the date of
delivery thereof paid by the original purchaser or purchasers
thereof, shall be deposited into the Capital Account established
in respect of such series of Bonds. All income or other gain
from the investment of moneys in the Capital Account or the
Investment Account maintained in respect of any series of Bonds
shall be deposited into the Investment Account for such series of
Bonds.
SECTION 6.3. Disbursements from Construction Fund. Moneys
in the Construction Fund shall be disbursed by the Trustee to pay
Cost of Construction or to reimburse the Company for Cost of
Construction paid by it, all in accordance with and pursuant to
the provisions of the Sale Agreement. The Trustee shall keep and
maintain adequate records pertaining to each account within the
Construction Fund and all disbursements therefrom and shall file
an accounting thereof if and when requested by the Issuer or the
Company.
SECTION 6.4. Balance in Construction Fund. Upon receipt
by the Trustee of a certificate furnished pursuant to Section 3.4
or Section 3.8 of the Sale Agreement, any balance remaining in
the Capital Account or the Investment Account maintained within
the Construction Fund in respect of a series of Bonds (except for
amounts retained by the Trustee at the Company's direction for
Cost of Construction not then due and payable), shall at the
direction of the Company be transferred by the Trustee into the
Bond Fund; provided, however, no amount shall be transferred into
the Bond Fund unless an amount equal to at least 95% of the sum
of the net proceeds of such series of Bonds (within the meaning
of Section 142(a) of the Code), and the total amount of moneys
accrued in the Investment Account and the investment income
expected to be received from amounts so deposited in the Bond
Fund, have been used (i) for the acquisition, construction,
reconstruction or improvement of land or property of a character
subject to the allowance for depreciation under Section 167 of
the Code, or for payment of amounts which are, for federal income
tax purposes, chargeable to the Facilities' capital account (for
example, under Section 263 of the Code) or would be so chargeable
either with a proper election by the Company or but for a proper
election by the Company to deduct such amounts, and (ii) to
provide solid waste disposal, sewage, air pollution control
and/or water pollution control facilities within the meaning of
the Code and regulations thereunder, provided that the moneys
paid from the Investment Account shall be disregarded for
purposes of the foregoing computation if the Company shall have
submitted to the Trustee an opinion of Bond Counsel to the effect
that such moneys may be so disregarded without impairing the
exemption from federal income taxes of interest on the Bonds.
Any amount not transferred into the Bond Fund as provided above
(exclusive of amounts retained by the Trustee in the Construction
Fund for payment of Costs of Construction not then due and
payable) shall be segregated by the Trustee and used by the
Trustee for (a) the redemption of Bonds of the same series of
Bonds from which such moneys were derived on or prior to the
earliest redemption date permitted by this Indenture without a
premium or penalty in accordance with the provisions of this
Indenture; or (b) the payment of a portion of the annual
principal due on Bonds of the same series from which such moneys
were derived (i) in years before such Bonds are subject to
redemption without premium or penalty, or (ii) in years when such
Bonds are subject to redemption without premium or penalty but
only in an amount in excess of the unexpended proceeds of such
Bonds, provided, however, that the portion of the annual
principal payment, if any, due on such Bonds that may be paid
hereunder shall not exceed an amount that bears the same ratio to
the annual principal due that the total unexpended proceeds of
such Bonds (exclusive of investment earnings) bear to the face
amount of such Bonds; or (c) any other purpose provided that the
Trustee is furnished with an opinion of Bond Counsel to the
effect that such use is lawful under the Act and will not
adversely affect the exclusion of interest on any of the Bonds
from gross income for purposes of federal income taxation. Until
used for one or more of the foregoing purposes, such segregated
amount may be invested as permitted by this Indenture but may not
be invested, without an opinion of Bond Counsel to the effect
that such investment will not adversely affect the exclusion of
interest on any of the Bonds from gross income for purposes of
federal income taxation, to produce a yield greater than the
yield on the Bonds, all in accordance with Section 148 of the
Code and regulations thereunder.
SECTION 6.5. Redemption of Bonds Pursuant to Section
3.1(a) or Similar Provisions. In the event that Bonds of any
series are to be redeemed pursuant to Section 3.1(a) hereof or
any similar provision contained in any supplemental indenture,
the Trustee shall, at the direction of the Company, withdraw from
the Capital Account or the Investment Account maintained within
the Construction Fund in respect of such series of Bonds, or
both, and deposit into the Bond Fund amounts in the aggregate not
exceeding the aggregate principal amount of, and accrued interest
on, the Bonds of such series so to be redeemed, with advice to
the Issuer and the Company of such action, such withdrawals and
deposits to be made on the date specified in such direction.
SECTION 6.6. Redemption Upon Taxability of Interest. In
the event that Bonds of any series are to be redeemed pursuant to
Section 3.1(b) hereof, or any similar provision contained in any
supplemental indenture, the Trustee shall, at the direction of
the Company, withdraw from the Capital Account or the Investment
Account maintained within the Construction Fund in respect of
such series of Bonds, or both, and deposit into the Bond Fund
amounts in the aggregate not exceeding the aggregate principal
amount of, and accrued interest on, the Bonds so to be redeemed,
with advice to the Issuer and the Company of such action, such
withdrawals and deposits to be made on the date specified in such
direction.
SECTION 6.7. Acceleration of Bonds. In the event that the
principal of the Bonds shall have become due and payable pursuant
to Section 10.2 hereof, the Trustee may, and at the direction of
the holders of 25% in aggregate principal amount of Bonds
outstanding hereunder shall deposit into the Bond Fund all
amounts remaining in the Construction Fund, with advice to the
Issuer and the Company of such action.
SECTION 6.8. Refunding of Bonds. In the event that all
outstanding Bonds of any series are paid, redeemed or deemed to
have been paid within the meaning of Article IX hereof by reason
of the application of the proceeds of the sale of any obligations
issued by the Issuer under an indenture other than this
Indenture, the Trustee shall, at the direction of the Company,
withdraw all amounts remaining in the Capital Account and the
Investment Account maintained within the Construction Fund in
respect of such series of Bonds and deposit such amounts into
corresponding accounts in the construction, acquisition or other
similar fund created under the indenture under which such
obligations of the Issuer are issued, with advice to the Issuer
and the Company of such action, such withdrawals and deposits to
be made, in accordance with the provisions of such indenture, on
the date on which such Bonds are so paid, redeemed or deemed to
have been paid.
<PAGE>
ARTICLE VII
INVESTMENTS
SECTION 7.1. Investment of Moneys. (a) Moneys held for
the credit of the Construction 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) Moneys held for the credit of any other fund or
account, including, without limitation, the Bond Fund, shall to
the extent practicable be invested and reinvested in Government
Securities which will mature, or which will be subject to
redemption at the option of the holder, not later than the date
or dates on which the money held for credit of the particular
fund shall be required for the purposes intended. The Trustee
shall so invest and reinvest pursuant to instructions from the
Authorized Company Representative.
(c) 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. Subject to the provisions of Section 6.2
hereof, 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 Law Requirements. In compliance
with the provisions of Section 148 of the Code and regulations
thereunder, all investments and reinvestments made under this
Article VII shall be subject to the following:
(a) In the event that the Issuer or the Company is of
the opinion that it is necessary or advisable to restrict
or limit the yield on the investment of any moneys held in
the Construction Fund, the Bond Fund or any other fund in
order to avoid the Bonds being considered "arbitrage bonds"
within the meaning of Section 148 of the Code, or any
proposed, temporary or final regulations thereunder as such
regulations may apply to obligations issued as of the date
of original issuance and delivery of the Bonds, the Issuer
or the Company may issue to the Trustee a written
certificate to such effect together with appropriate
written instructions, in which event the Trustee shall take
such action as is necessary so as to restrict or limit the
yield on such investment in accordance with such
certificate and instructions, irrespective of whether the
Trustee shares such opinion.
(b) The Trustee shall establish and maintain within
the Bond Fund, the Construction Fund or any other fund, in
respect of each series of Bonds issued hereunder, a
separate account into which shall be deposited as and when
received any amounts which are subject or could be subject
to rebate to the United States under Section 148(f)(6) of
the Code, which amounts shall be held in such separate
accounts until paid to the United States pursuant to said
Section or until the Trustee determines that no such
payment is required. Moneys in such separate account
within the Construction Fund shall be subject to prior
withdrawal to pay the Cost of Construction in accordance
with the provisions of the Sale Agreement; provided,
however, that no withdrawal for such purpose shall be
permitted unless and until (i) all other moneys in the
Construction Fund, together with any other moneys
constituting gross proceeds (within the meaning of Section
148(f) of the Code) have first been so used within six (6)
months of the date of issuance of the Bonds as provided in
Section 148(f)(4)(B) of the Code, or (ii) the Company shall
furnish an opinion of Bond Counsel to the Trustee to the
effect that such moneys will not be subject to rebate to
the United States under Section 148(f) of the Code and
regulations thereunder.
(c) The Issuer and the Trustee shall not make or agree
to make any payments or participate in any non-arms-length
transaction which would have the effect of reducing the
earnings on investments, thereby reducing the amount
required to be rebated to the United States under Section
148(f) of the Code and regulations thereunder.
(d) The Company has undertaken in the Sale Agreement
to make the determinations required by paragraph (b) of
this Section 7.2 and to provide statements to the Trustee
to the effect that all actions with respect to the Bonds
required by Section 148(f) of the Code have been taken.
The Trustee shall be entitled to rely upon such
determinations and statements as sufficient evidence of the
facts therein contained.
<PAGE>
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION 8.1. Rights of Company Under Sale Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Sale Agreement and an
Event of Default hereunder shall not constitute an "Event of
Default" under the Sale Agreement unless by the terms of the Sale
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.
<PAGE>
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 Sale
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.
<PAGE>
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 Sale 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 3.2 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 3.2 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 V 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 by
it 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 has occurred of which the Trustee has 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, however, affect or
impair the right of any Bondholders 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.
<PAGE>
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 Parish
President and attested by the Secretary of the Parish
Council, 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 Parish Council 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-fulfillment 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 Sale Agreement for the payment
of such Administration Expenses and reference is hereby made to
the Sale 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 Sale 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 Parish President and attested by the Secretary of the
Parish Council 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.
The Trustee and any other banks or trust companies, if any,
designated as Paying Agent or Paying Agents in any supplemental
indenture providing for the issuance of Additional Bonds as
provided in Section 2.11 hereof or in an instrument appointing a
successor Trustee, shall be the Paying Agent or Paying Agents for
the applicable series of Bonds.
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.
<PAGE>
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;
(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 Sale Agreement or of any
other moneys, securities or funds;
(e) to authorize the issuance and sale of one or more
series of Additional Bonds;
(f) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(g) 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
(h) 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.
<PAGE>
ARTICLE XIII
AMENDMENT TO SALE 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 Sale
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
Sale 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 5.2 or 5.3 of the Sale
Agreement or the nature of the obligations of the Company on the
First Mortgage Bonds as provided in Section 5.3 of the Sale
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 Sale 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 Sale 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.
<PAGE>
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: Louisiana Power & Light Company
639 Loyola Avenue
New Orleans, LA 70113
Attention: Chief Financial Officer
Issuer: Parish of St. Charles
P. O. Box 302
Hahnville, LA 70057
Attention: Secretary, Parish Council
Trustee: First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Corporate Trust Department
Any Paying
Agent other
than the
Trustee: At the address designated to the
Issuer and the 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 govern 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 Issuer or 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 Issuer
or 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.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the Parish President and its
corporate seal to be hereunto affixed and attested by the
Secretary of the St. Charles Parish Council, 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 ST. CHARLES,
STATE OF LOUISIANA
By:________________________________________
ATTEST: Parish President
By: __________________________________ [SEAL]
Secretary
St. Charles Parish Council
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By:________________________________________
Title:
[SEAL]
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.1. Definitions -4-
SECTION 1.2. Use of Words -8-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE II
THE BONDS
<S> <C>
SECTION 2.1. Authorized Form and Amount of Bonds -9-
SECTION 2.2. Details of Series ___________ Bonds -9-
SECTION 2.3. Payment -9-
SECTION 2.4. Execution -9-
SECTION 2.5. Limited Obligation -10-
SECTION 2.6. Authentication -10-
SECTION 2.7. Delivery of the Bonds -10-
SECTION 2.8. Mutilated, Destroyed or Lost Bonds -11-
SECTION 2.9. Registration and Exchange of Bonds -11-
SECTION 2.10. Cremation and Other Dispositions -12-
SECTION 2.11. Additional Bonds -12-
SECTION 2.12. Temporary Bonds -12-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
<S> <C>
SECTION 3.1. Redemption Applicable to Series____ Bonds Only -14-
SECTION 3.2. Notice -15-
SECTION 3.3. Redemption Payments -15-
SECTION 3.4. Cancellation -15-
SECTION 3.5. Partial Redemption of Bonds -16-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
<S> <C>
SECTION 4.1. Payment of Principal,Premium,If Any and Interest -17-
SECTION 4.2. Performance of Covenants -17-
SECTION 4.3. Instruments of Further Assurance -17-
SECTION 4.4. Recordation and Other Instruments -17-
SECTION 4.5. Inspection of Project Books -18-
SECTION 4.6. Rights Under Sale Agreement -18-
SECTION 4.7. Prohibited Activities -18-
SECTION 4.8. No Transfer of First Mortgage Bonds -18-
SECTION 4.9. Voting of First Mortgage Bonds -18-
SECTION 4.10. Surrender of First Mortgage Bonds -19-
SECTION 4.11. Notice to Company Mortgage Trustees -19-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE V
REVENUES AND FUNDS
<S> <C>
SECTION 5.1. Creation of Bond Fund -20-
SECTION 5.2. Payments Into Bond Fund -20-
SECTION 5.3. Use of Moneys in Bond Fund -20-
SECTION 5.4. Withdrawals from Bond Fund -20-
SECTION 5.5. Non-Presentment of Bonds -20-
SECTION 5.6. Administration Expenses -20-
SECTION 5.7. Moneys to be Held in Trust -21-
SECTION 5.8. Refund to Company of Excess Payments -21-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
<S> <C>
SECTION 6.1. Creation of Construction Fund -22-
SECTION 6.2. Payments into Construction Fund -22-
SECTION 6.3. Disbursements from Construction Fund -22-
SECTION 6.4. Balance in Construction Fund -22-
SECTION 6.5. Redemption of Bonds Pursuant to Section 3.1(a)
or Similar Provisions -23-
SECTION 6.6. Redemption Upon Taxability of Interest -23-
SECTION 6.7. Acceleration of Bonds -23-
SECTION 6.8. Refunding of Bonds -23-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
INVESTMENTS
<S> <C>
SECTION 7.1. Investment of Moneys -24-
SECTION 7.2. Arbitrage Law Requirements -24-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VIII
RIGHTS OF THE COMPANY
<S> <C>
SECTION 8.1. Rights of Company Under Sale Agreement -26-
SECTION 8.2. Enforcement of Rights and Obligations -26-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IX
DISCHARGE OF LIEN
<S> <C>
SECTION 9.1. Discharge of Lien -27-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
<S> <C>
SECTION 10.1. Events of Default -28-
SECTION 10.2. Acceleration -28-
SECTION 10.3. Other Remedies; Rights of Bondholders -29-
SECTION 10.4. Right of Bondholders to Direct Proceedings -29-
SECTION 10.5. Appointment of Receiver -29-
SECTION 10.6. Waiver -29-
SECTION 10.7. Application of Moneys -30-
SECTION 10.8. Remedies Vested in Trustee -31-
SECTION 10.9. Rights and Remedies of Bondholders -31-
SECTION 10.10. Termination of Proceedings -31-
SECTION 10.11. Waivers of Events of Default -32-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
<S> <C>
SECTION 11.1. Acceptance of Trusts -33-
SECTION 11.2. Fees, Charges and Expenses of Trustee and
Paying Agents -35-
SECTION 11.3. Notice to Bondholders of Default -35-
SECTION 11.4. Intervention by Trustee -35-
SECTION 11.5. Merger or Consolidation of Trustee -35-
SECTION 11.6. Resignation by Trustee -36-
SECTION 11.7. Removal of Trustee -36-
SECTION 11.8. Appointment of Successor Trustee -36-
SECTION 11.9. Concerning Any Successor Trustee -36-
SECTION 11.10. Reliance Upon Instruments -36-
SECTION 11.11. Appointment of Co-Trustee -36-
SECTION 11.12. Designation and Succession of Paying
Agents -37-
SECTION 11.13. Several Capacities -38-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XII
SUPPLEMENTAL INDENTURES
<S> <C>
SECTION 12.1. Supplemental Indentures Without Bondholder Consent -39-
SECTION 12.2. Supplemental Indentures Requiring Bondholder Consent -39-
SECTION 12.3. Consent of Company -40-
SECTION 12.4. Opinion of Bond Counsel -40-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XIII
AMENDMENT TO SALE AGREEMENT
<S> <C>
SECTION 13.1. Amendments With and Without the Consent of
Bondholders -41-
SECTION 13.2. Notice to Bondholders -41-
SECTION 13.3. Opinion of Bond Counsel -41-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XIV
MISCELLANEOUS
<S> <C>
SECTION 14.1. Consents, etc. of Bondholders -42-
SECTION 14.2. Limitation of Rights -42-
SECTION 14.3. Severability -42-
SECTION 14.4. Notices -42-
SECTION 14.5. Applicable Provisions of Law -43-
SECTION 14.6. Counterparts -43-
SECTION 14.7. Successors and Assigns -43-
SECTION 14.8. Captions -43-
SECTION 14.9. Photocopies and Reproductions -43-
SECTION 14.10. Bonds Owned by the Issuer or the Company -43-
SECTION 14.11. Holidays -44-
</TABLE>
EXHIBIT A Form of Series _______________ Bond
Exhibit B-6
Installment Sale Agreement
This Installment Sale Agreement dated as of _______________
by and between the Parish of St. Charles, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and Louisiana Power & Light Company, a corporation organized and
existing under and by virtue of the laws of the State of
Louisiana (the "Company"),
W i t n e s s e t h :
WHEREAS, the Issuer is authorized and empowered under the
laws of the State of Louisiana, including particularly Sections
991 through 1001, inclusive, of Title 39 of the Louisiana Revised
Statutes of 1950, as amended (the "Act"), to acquire, purchase,
lease, rent, construct or improve and sell, lease or otherwise
dispose of industrial plant sites and industrial plant buildings,
including particularly facilities for the generation of
electricity and production of steam and other forms of energy,
pollution abatement and control facilities, and necessary
property and appurtenances thereto; and
WHEREAS, the Issuer has authorized the acquisition and sale
of certain solid waste disposal, sewage, air pollution control
and/or water pollution control facilities (the "Facilities") at
Unit 3 (nuclear) of the Company's Waterford Steam Electric
Generating Station located in St. Charles Parish, at Taft,
Louisiana (the "Plant"), which Facilities are to be acquired by
the Issuer by purchase from the Company and resold to the
Company, all upon the terms and conditions set forth herein; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer proposes to issue its revenue bonds under
the Act for the purpose of financing a portion of the cost of
acquiring, constructing and equipping the Facilities and paying a
portion of the expenses of authorizing and issuing said bonds;
and
WHEREAS, said bonds are to be issued under and secured by a
Trust Indenture (hereinafter described) between the Issuer and
First National Bank of Commerce, New Orleans, Louisiana, as
trustee; and
WHEREAS, the Company proposes to sell the Facilities to the
Issuer and to repurchase the Facilities from the Issuer, all upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants herein made, and subject to the conditions
herein set forth, the Issuer and the Company agree as follows:
<PAGE>
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" shall mean Sections 991 through 1001, inclusive, of
Title 39 of the Louisiana Revised Statutes of 1950, as amended,
and all future acts supplemental thereto or amendatory thereof.
"Additional Bonds" shall mean Bonds in addition to the
Series _______________ Bonds which are issued under the
provisions of Section 2.11 of the Indenture.
"Administration Expenses" shall mean 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" shall mean this Installment Sale Agreement and
any amendments and supplements hereto.
"Authorized Company Representative" shall mean 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.
"Bonds" shall mean the Series _______________ Bonds and all
Additional Bonds issued by the Issuer pursuant to the Indenture.
"Bond Counsel" shall mean any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" shall mean the fund by that name created and
established in Section 5.1 of the Indenture.
"Capital Account" shall mean any accounts by that name
established under Section 6.1 of the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" shall mean Louisiana Power & Light Company, a
corporation organized and existing under the laws of the State of
Louisiana, and its permitted successors and assigns.
"Company Deed" shall mean a deed of the Company conveying to
the Issuer title to the Project or any portion of the Project,
subject to Permitted Encumbrances, substantially in the form set
forth as Exhibit B hereto.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust, dated as of April 1, 1944, made to The Chase
National Bank of the City of New York and Carl E. Buckley, as
trustees (Bank of Montreal Trust Company and Mark F. McLaughlin,
successor trustees), as heretofore and hereafter amended and
supplemented.
"Company Mortgage Trustees" shall mean the trustees under
the Company Mortgage.
"Completion Date" shall mean the date of completion of
construction of the Facilities as that date shall be certified as
provided in Section 3.4 hereof.
"construction" (and other forms of the word "construct"),
when used with respect to the Facilities, shall mean the
acquisition, construction and equipping of the Facilities,
including, without limitation, the acquisition, construction,
reconstruction, extension, equipment or improvement of the
Facilities.
"Construction Fund" shall mean the fund by that name created
and established in Section 6.1 of the Indenture.
"Cost of Construction" shall mean all costs paid or incurred
by the Company with respect to the Facilities and the financing
thereof for the payment of which the Issuer is authorized to
issue bonds under the Act, and shall include without limitation
(a) the obligations paid or incurred by the Company for labor,
materials and other expenses and for contractors, builders and
materialmen in connection with the construction of the
Facilities; (b) the costs paid or incurred by the Company of
contract bonds and of insurance of all kinds that may be deemed
by the Company to be desirable or necessary during the course of
construction of the Facilities; (c) the expenses paid or incurred
by the Company for test borings, surveys, estimates, plans and
specifications, and preliminary investigations therefor with
respect to the Facilities, and for supervising construction, as
well as for the performance of all other duties required by or
reasonably necessary for the proper construction of the
Facilities; (d) Administration Expenses, legal, accounting,
financial, underwriting, advertising, recording and printing
expenses and all other expenses paid or incurred by the Company
in connection with the authorization, issuance and sale of the
Bonds and the issuance of the First Mortgage Bonds; (e) the
amount of the allowance for funds used during construction
entered by the Company upon its accounting records in respect of
any element or unit of the Facilities in accordance with the
applicable regulatory uniform systems of accounts prior to the
first issuance of Bonds to defray the Company's share of costs of
constructing such element or unit; (f) the interest (exclusive of
accrued interest paid by the initial purchasers upon delivery of
the Bonds) accruing upon the Bonds during the period of
construction of the Facilities; (g) all other costs that the
Company shall be required to pay under the terms of any contract
or contracts for the construction of the Facilities; (h) any
other costs or expenses paid or incurred by the Company, and any
sums required to reimburse the Company for work done by it, with
respect to the Facilities which are properly chargeable to the
capital account of the Company with respect to the Facilities or
would be so chargeable for federal income tax purposes either
with a proper election or but for a proper election to deduct the
same; and (i) all costs and expenses relating to transfers of
title between the Company and the Issuer pursuant to this
Agreement.
"Event of Default" shall mean any event of default specified
in Section 8.1 hereof.
"Facilities" shall mean (i) the solid waste disposal
facilities and water pollution control facilities at the Plant to
be financed, in whole or in part, with the proceeds of Series
_______________ Bonds (including any changes in, additions to,
substitutions for or deletions of facilities or portions thereof
made under Section 3.3 of this Agreement), which Facilities, as
presently contemplated by the existing Plans and Specifications,
are generally described in Exhibit A to this Agreement, and (ii)
any other solid waste disposal, sewage, air pollution control
and/or water pollution control facilities at the Plant to be
financed in whole or in part with the proceeds of any Additional
Bonds (including any changes in, additions to, substitutions for
or deletions of facilities or portions thereof made under Section
3.3 of this Agreement).
"First Mortgage Bonds" shall mean the bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.3 hereof.
"Indenture" shall mean the Trust Indenture dated as of
_______________ between the Issuer and the Trustee securing the
Bonds, and any amendments and supplements thereto.
"Investment Account" shall mean any of the accounts by that
name established under Section 6.1 of the Indenture.
"Issuer" shall mean the Parish of St. Charles, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"Issuer Deed" shall mean a deed of the Issuer conveying to
the Company title to the Project or any portion of the Project,
subject to Permitted Encumbrances, substantially in the form set
forth in Exhibit C hereto.
"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.
"Permitted Encumbrances" shall mean the rights of the
Issuer, the Company or the Trustee under this Agreement, the
Indenture, the Sale Agreement dated as of May 1, 1984 between the
Issuer and the Company, the Trust Indenture dated as of May 1,
1984 between the Issuer and First National Bank of Commerce, as
trustee, the Sale Agreement dated as of November 1, 1984 between
the Issuer and the Company, the Trust Indenture dated as of
December 1, 1984 between the Issuer and First National Bank of
Commerce, as trustee, the Installment Sale Agreement dated as of
June 1, 1991, between the Issuer and the Company, the Trust
Indenture dated as of June 1, 1991, between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of April 1, 1992, between the Issuer and the
Company, the Trust Indenture dated as of April 1, 1992, between
the Issuer and First National Bank of Commerce, as trustee, the
Installment Sale Agreement dated as of December 1, 1992, between
the Issuer and the Company, the Trust Indenture dated as of
December 1, 1992, between the Issuer and First National Bank of
Commerce, as trustee, the Installment Sale Agreement dated as of
May 1, 1993 between the Issuer and the Company, the Trust
Indenture dated as of May 1, 1993 between the Issuer and First
National Bank of Commerce, as trustee, the Installment Sale
Agreement dated as of December 1, 1993 between the Issuer and the
Company, the Trust Indenture dated as of December 1, 1993 between
the Issuer and First National Bank of Commerce, as trustee, the
Company Mortgage, and the following:
(a) Liens for taxes, levies, assessments, utility
rents, rates and charges, license, permit or other
authorization fees and other impositions, provided that in
each case the same shall either (i) not be due and payable,
(ii) not be delinquent to the extent that penalties for
nonpayment may then be assessed on the Facilities, or any
material portion thereof then be subject to forfeiture, or
(iii) be a lien the amount or validity of which is being
contested in good faith by the Company;
(b) Minor defects, irregularities, encumbrances,
licenses, rights of way, servitudes, restrictions, mineral
rights and clouds on title which, in the opinion of the
Company, do not significantly impair the operation of the
Facilities;
(c) Easements, servitudes, encumbrances, exceptions or
reservations for the purpose of pipelines, for telephones
and other means of communication, power lines and
substations, roads, streets, alleys, driveways, walkways,
highways, railroads and other means of transportation,
drainage and sewerage, conduits, dikes, canals, laterals,
ditches, for the removal of oil, gas, coal or other
minerals, and other like purposes, or for the joint or
common use of real property, facilities and equipment,
which, in the opinion of the Company, do not significantly
impair the operation of the Facilities;
(d) Mechanics', workmen's, repairmen's, materialmen's,
suppliers', vendors' or carriers' liens or other similar
liens, provided that the lien shall be discharged by the
Company in the ordinary course of business or the amount or
validity of the lien shall be contested in good faith with
any pending execution thereof appropriately stayed;
(e) Rights of the United States or any state or
political subdivision thereof (which for purposes of this
definition shall include any taxing or improvement
district), or other public or governmental authority or
agency, to take, use or control property or to terminate
any lease, right, power, franchise, grant, license or
permit previously in force;
(f) The pendency or filing of any application or
proceedings seeking to annex or rezone the Plant or any
portion thereof, or to include it in any political
subdivision;
(g) Rights acquired by any person with respect to any
portion of the Facilities as the result of such portion
becoming so much a part of other property as to be subject
to liens upon such property;
(h) Other liens, charges or encumbrances which
normally exist with respect to comparable property in the
locale in which the Facilities are situated and which, in
the opinion of the Company, do not significantly impair the
operation of the Facilities;
(i) Liens arising under or pursuant to La. R.S.
30:2281; and
(j) Liens arising under or pursuant to La. R.S. 10:9-
107 and 9-312(4) or otherwise with respect to purchase
money security interests.
"Plant" shall mean Unit 3 (nuclear) of the Company's
Waterford Steam Electric Generating Station located in St.
Charles Parish, at Taft, Louisiana.
"Plans and Specifications" shall mean the plans and
specifications prepared by or on behalf of the Company for the
Facilities, as the same may be revised from time to time in
accordance with Section 3.3 hereof.
"Series _______________ Bonds" shall mean the initial issue
of Bonds under and secured by the Indenture in the aggregate
principal amount of _______________.
"Trustee" shall mean the banking corporation or association
designated as Trustee in the Indenture, and its successor or
successors as such Trustee. The original Trustee is First
National Bank of Commerce, New Orleans, Louisiana.
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.
<PAGE>
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 duly
existing under the Constitution and laws of the State of
Louisiana.
(b) The Issuer has the power to enter into the trans
actions contemplated by this Agreement and to carry out its
obligations hereunder. By proper action of the governing
body of the Issuer, the Issuer has been duly authorized to
execute and deliver this Agreement.
(c) The Issuer has not assigned, and will not, except
as otherwise required by mandatory provisions of law,
assign its interest in this Agreement other than to secure
the Bonds.
(d) The construction of the Facilities will promote
the securing and developing of industry and the health,
safety and physical and economic welfare of the Issuer and
its inhabitants, and will thereby further the public
purposes of the Act.
SECTION 2.2. Representations and Warranties of the Company
. The Company makes the following representations and warranties
as the basis for the undertakings on the part of the Issuer
herein contained:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation, as amended, 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) The Facilities constitute a project of the type
authorized and permitted by the Act.
(c) The estimated Cost of Construction has been
determined in accordance with sound engineering and
accounting principles, and the Company estimates that all
of the proceeds of the Bonds (exclusive of accrued
interest, if any, paid by the original purchaser or
purchasers of such Bonds upon delivery thereof) will be
expended to pay such Cost of Construction.
(d) 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.
(e) 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 or in connection with the issuance of series of
Additional Bonds.
(f) (i) With respect to the Facilities at the date of
this Agreement the Company has, (ii) with respect to the
Facilities on the date of the first issuance of Bonds the
Company will have, and (iii) with respect to each portion
or item of the Facilities constructed after the date of
this Agreement the Company will, when the same is
constructed and title thereto is conveyed to the Issuer,
have, good and marketable title to the Facilities, free and
clear of all claims, liens and encumbrances other than
Permitted Encumbrances.
SECTION 2.3. Intention; Official Action. It is intended
that this Agreement and all actions taken hereunder be consistent
with and pursuant to the resolutions and/or ordinances adopted by
the governing authority of the Issuer on May 27, 1974 (No. 1184),
April 12, 1976 (No. 1371), May 22, 1978 (No. 1513), April 7, 1980
(No. 2045), May 16, 1983 (No. 2457), May 7, 1984 (No. 84-5-4),
and March 18, 1991 (No. 3595), and that the interest on the
Series _______________ Bonds be excluded from the gross income
of the recipients thereof for Federal income tax purposes. The
Issuer intends that the Memorandum of Agreement approved pursuant
to said resolutions and/or ordinances constitute an "official
action" toward the issuance of the Series _______________ Bonds
within the meaning of the Code and regulations thereunder.
<PAGE>
ARTICLE III
THE FACILITIES; CONVEYANCE TO THE ISSUER
SECTION 3.1. Construction of the Facilities. (a) The
Company shall cause the Facilities to be constructed with all
reasonable dispatch in order to effectuate the purposes of the
Act. As between the Company and the Issuer, the Company shall
have the sole responsibility under this Agreement for the
construction of the Facilities and may perform the same itself or
through its agents, acting both on its own behalf and as agent
for others, and may make or issue such contracts, orders,
receipts and instructions, and in general do or cause to be done
all such other things as it may in its sole discretion consider
requisite or advisable for the construction of the Facilities and
for fulfilling its obligations under this Article.
(b) The Company, itself or through its agents, acting both
on its own behalf and as agent for others, may prosecute or
defend any actions or proceedings arising out of the construction
of the Facilities, and the Issuer agrees to cooperate fully with
the Company in any such action or proceeding.
SECTION 3.2. Insufficient Moneys in Construction Fund. In
the event the moneys in the Construction Fund available for
payment of the Cost of Construction, together with moneys made
available to pay the Cost of Construction from the proceeds of
previous or subsequent issues of revenue bonds, should not be
sufficient to pay the Cost of Construction in full, the Company
agrees to pay all that portion of the Cost of Construction in
excess of the moneys available therefor.
The Issuer does not make any warranty, either express or
implied, that the moneys which will be paid into the Construction
Fund and will be available for payment of the Cost of
Construction will be sufficient to pay the Cost of Construction
in full.
If the Company shall make any payments pursuant to this
Section 3.2, it shall not be entitled to any reimbursement
therefor from the Issuer, the Trustee or the holders of any of
the Bonds, nor shall it be entitled to any diminution in or
postponement of the payment of the principal of and premium, if
any, and interest on the First Mortgage Bonds or the payment of
any other amounts payable under this Agreement.
SECTION 3.3. Revision of Plans and Specifications. The
Company may revise the Plans and Specifications for the
Facilities at any time and from time to time prior to the
Completion Date in any respect, including, without limitation,
any changes therein, additions thereto, substitutions therefor
and deletions therefrom; provided, however, that, after giving
effect to such revision, the representations contained in Section
2.2 of this Agreement shall remain true and correct; and
provided, further, that no material revision to the Plans and
Specifications shall be made, and no revision which shall render
inaccurate the description of the Facilities contained in Exhibit
A hereto shall be made, unless, in each case, the Company shall
have theretofore delivered to the Trustee:
(i) a certificate of an Authorized Company
Representative describing the proposed revision and
certifying that it complies with the requirements of this
Section and will not have the effect of disqualifying the
Facilities as facilities which can be financed under the
Act, or as solid waste disposal, sewage, air pollution
control and/or water pollution control facilities within
the meaning of the Code and regulations thereunder;
(ii) an opinion of Bond Counsel to the effect that the
proposed revision is such that the expenditure of the
proceeds of Series _______________ Bonds and any
Additional Bonds thereon pursuant to this Agreement will
not impair the validity of the Bonds under the Act, or the
exclusion of the interest on the Bonds from gross income
for purposes of federal income taxation; and
(iii) such documents, certificates and showings as
may be required by Bond Counsel rendering the opinion in
clause (ii) of this paragraph.
SECTION 3.4. Certification of Completion Date. The
Completion Date shall be the date on which the Facilities are com
pleted in their entirety and ready to be placed in service and
operated as solid waste disposal, sewage, air pollution control
and/or water pollution control facilities at substantially the
level for which they were designed, all as determined by the
Company. Promptly after the Completion Date, the Company shall
submit to the Issuer and the Trustee a certificate, executed by
an Authorized Company Representative, which shall specify the
Completion Date and shall state that (a) construction of the
Facilities has been completed and the Cost of Construction has
been paid, except for any Costs of Construction which have been
incurred but are not then due and payable, or the liability for
the payment of which is being contested or disputed by the
Company, and for the payment of which the Trustee is directed to
retain specified amounts of moneys in specified accounts within
the Construction Fund, and (b) the Facilities are suitable for
operation for solid waste disposal, sewage disposal, air
pollution control and/or water pollution control purposes.
Notwithstanding the foregoing, such certificate may state that it
is given without prejudice to any rights against third parties
which exist at the date thereof or which may subsequently come
into being.
SECTION 3.5. Maintenance of Facilities; Remodeling. The
Company shall, at its expense, cause the Facilities, and every
element and unit thereof, to be maintained, preserved and kept in
good repair, working order and condition, and from time to time
to cause all needful and proper repairs, replacements, additions,
betterments and improvements to be made thereto; provided,
however, that the Company may exercise all of such rights,
powers, elections and options to cause the discontinuance of the
operation of, or reduce the capacity of, the Facilities, or any
element or unit thereof, if, in the judgment of the Company, any
such action is necessary or desirable in the conduct of the
business of the Company, or if the Company is ordered so to do by
any regulatory authority having jurisdiction in the premises, or
if the Company intends to sell or dispose of the same and within
a reasonable time shall endeavor to effectuate such sale. The
Company shall notify the Issuer as to the nature and extent of
any material damage or loss to the Facilities and of the
discontinuance of the operation of the Facilities, or any
material element or unit thereof.
After the Completion Date, the Company may at its own
expense cause the Facilities to be remodeled or cause
substitutions, modifications and improvements to be made to the
Facilities from time to time as it, in its discretion, may deem
to be desirable for its uses and purposes, which remodeling,
substitutions, modifications and improvements shall be included
under the terms of this Agreement as part of the Facilities.
SECTION 3.6. Insurance. The Company shall, at its
expense, cause the Facilities to be kept insured against fire to
the extent that property of similar character is usually so
insured by companies similarly situated and operating like
properties, to a reasonable amount, by reputable insurance
companies or, in lieu of or supplementing such insurance in whole
or in part, adopt some other method or plan of protection against
loss by fire at least equal in protection to the method or plan
of protection against such loss of companies similarly situated
and operating like properties. All proceeds of such insurance,
or such other method or plan, shall be for the account of the
Company.
SECTION 3.7. Condemnation; Eminent Domain. (a) In the
event that title to or the temporary use of the Facilities, or
any part thereof, shall be taken in condemnation or by the
exercise of the power of eminent domain by any governmental body
or by any person, firm or corporation acting under governmental
or statutory authority, any proceeds received by the Issuer from
any award or awards in respect of the Facilities or any part
thereof made in such condemnation or eminent domain proceedings,
after payment of all expenses incurred in the collection thereof,
shall, to the extent of the Company's interest therein, be paid
for the account of the Company, and the Issuer hereby assigns to
the Company all of its right, title and interest in and to any
claim for, and rights with respect to, any such condemnation
award.
(b) The Issuer shall cooperate fully with the Company in
the handling and conduct of any prospective or pending
condemnation proceedings with respect to the Facilities or any
part thereof. In no event will the Issuer voluntarily settle or
consent to the settlement of any prospective or pending
condemnation proceedings with respect to the Facilities or any
part thereof without the written consent of the Company, and the
Issuer will, at the request of the Company, accept a sum in
payment therefor at any stage of the condemnation proceedings
which the Company shall certify to the Issuer to be fair. Unless
and until such a request is made by the Company, the Issuer will,
at the expense of the Company, take or cause to be taken all
actions necessary to obtain the award of fair compensation for
the taking and the collecting thereof.
(c) The Company shall be entitled to the entire proceeds of
any condemnation award or portion thereof made for damages to or
takings of its own property other than the Facilities.
SECTION 3.8. Termination of Construction. (a) Anything
in this Agreement to the contrary notwithstanding, the Company
shall have the right at any time to terminate the construction of
the Facilities 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 construction or 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 construction
or 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 or
the Plant shall have been condemned or taken by eminent
domain; or
(iv) the construction or operation of the Facilities or
the Plant shall have been enjoined or shall have otherwise
been prohibited by, or shall conflict with, 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) Promptly after the termination of the construction of
the Facilities, the Company shall submit to the Issuer and the
Trustee a certificate, executed by an Authorized Company
Representative which shall state the reasons for such termination
and state that the Cost of Construction, to the extent of the
construction of the Facilities as of the date of such
termination, has been paid, except for any Costs of Construction
which have been incurred but are not then due and payable, or the
liability for the payment of which is being contested or disputed
by the Company, and for the payment of which the Trustee is
directed to retain specified amounts of moneys in specified
accounts within the Construction Fund. Notwithstanding the
foregoing, such certificate may state that it is given without
prejudice to any rights against third parties which exist at the
date thereof or which may subsequently come into being.
SECTION 3.9. Conveyance to the Issuer. The Company agrees
to sell and convey, and the Issuer agrees to purchase, upon the
terms and conditions of, and at the times specified in, this
Agreement, all of the Company's right, title and interest in the
Facilities, subject only to Permitted Encumbrances, for a
purchase price equal to the proceeds of the Bonds deposited in
the Construction Fund and applied as provided in Sections 4.3 and
4.4 hereof.
The Company shall from time to time, upon notification to
the Issuer and the Trustee specifying a transfer date, transfer
to the Issuer that portion of the Facilities constructed prior to
such transfer date and not previously conveyed to the Issuer and
receive payment therefor. Such transfer and payment shall occur
on the transfer date upon the submission to the Issuer and the
Trustee of the following:
(a) a requisition pursuant to Section 4.4 of this
Agreement; and
(b) a Company Deed with respect to the portion of the
Facilities for which such requisition is being submitted.
All transactions required to be done by the Company and the
Issuer on a transfer date shall be deemed to take place
simultaneously, and none of such transactions shall be deemed to
be completed until all such transactions have been completed.
SECTION 3.10. Ledger. The Company shall maintain or cause
to be maintained a ledger in which it shall list each item of the
Facilities on a current basis (reflecting all changes, additions,
substitutions and deletions pursuant to Section 3.3 hereof) and
reference is hereby made to such ledger for a complete
itemization of the Facilities as they exist at any particular
time. It shall not be necessary to amend Exhibit A hereto at any
time to reflect such changes, additions, substitutions and
deletions. The Company shall file a copy of the ledger (and all
information from time to time necessary to keep the ledger
current) with the Trustee.
<PAGE>
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
SECTION 4.1. Issuance of the Series _______________
Bonds. The Issuer shall issue the Series _______________ Bonds
under and in accordance with the Indenture, subject to the
provisions of any bond purchase agreement between the Issuer and
the original purchaser or purchasers of the Series
_______________ Bonds. The Company hereby approves the issuance
of the Series _______________ Bonds and all terms and conditions
thereof.
SECTION 4.2. Additional Bonds. So long as the Company
shall not be in default hereunder, and at the request of the
Company, the Issuer may authorize and issue Additional Bonds in
aggregate principal amounts specified from time to time by the
Company in order to provide funds for the purpose of (1)
financing the cost of completing the Facilities, (2) financing
the cost of additional solid waste disposal, sewage, air
pollution control and/or water pollution control facilities at
the Plant in conformity with the Act and the representations
concerning the Facilities herein contained, and (3) refunding the
Series _______________ Bonds or any series of Additional Bonds,
in whole or in part, or any combination thereof.
The right to issue Additional Bonds set forth in this
Agreement and the Indenture shall not imply that the Issuer and
the Company may not enter into, and the Issuer and the Company
expressly reserve the right to enter into, to the extent
permitted by law, another agreement or agreements with respect to
the issuance by the Issuer, under an indenture or indentures
other than the Indenture, of bonds to provide additional funds to
pay the Cost of Construction or refunding bonds to refund all or
any principal amount of all or any series of Bonds, or any
combination thereof, and the provisions of this Agreement and the
Indenture governing the issuance of Additional Bonds shall not
apply thereto.
SECTION 4.3. Disposition of Bond Proceeds. In
consideration of the conveyance by the Company to the Issuer of
the Company's right, title and interest in the Facilities as
provided in Section 3.9 hereof, the Issuer agrees that the
proceeds of the Bonds shall be applied as in this Section 4.3
described.
The proceeds of the issuance and sale of the Series
_______________ Bonds and any Additional Bonds issued for other
than refunding purposes, other than accrued interest, if any,
paid by the initial purchaser or purchasers thereof, shall be
deposited into the Construction Fund, and any such accrued
interest shall be deposited into the Bond Fund, all in accordance
with the provisions of the Indenture. The proceeds of the
issuance and sale of Additional Bonds issued for the purpose of
refunding the Series _______________ Bonds or any series of
Additional Bonds shall be applied in accordance with the
provisions of the Indenture and this Agreement, as each may be
supplemented and amended in connection with the issuance of such
Additional Bonds.
The moneys on deposit in the Construction Fund shall be
applied by the Trustee as provided in Section 4.4 hereof and as
otherwise provided in Article VI of the Indenture. Until the
moneys on deposit in the Construction Fund are so applied, such
moneys shall be and remain the property of the Issuer, subject to
the lien of the Indenture, and the Company shall have no right,
title or interest therein except as expressly provided in this
Agreement and the Indenture.
SECTION 4.4. Disbursements from the Construction Fund.
(a) The moneys on deposit in the Construction Fund shall be
disbursed from time to time to reimburse the Company for portions
of the Cost of Construction paid by it or to make payments to
persons designated by the Company in respect of portions of the
Cost of Construction, upon receipt by the Trustee of requisitions
executed by, or communications by telegram, telex or facsimile
transmission from, an Authorized Company Representative, which
requisitions shall state with respect to each payment to be made:
(i) the requisition number, (ii) the name and address of the
person, firm or corporation to whom payment is due or has been
made (or, in the case of payments to the Bond Fund, instructions
to make such payments thereto), (iii) the amount paid or to be
paid, (iv) the account or accounts within the Construction Fund
from which payment of such requisition, or any portion thereof,
shall be made, (v) that each obligation, item of cost or expense
mentioned therein has been properly incurred and has been paid or
is then due and payable as an item of the Cost of Construction,
is a proper charge against the Construction Fund, and has not
been the basis of any previous final payment therefrom or from
the proceeds of any other revenue bonds issued by the Issuer, and
(vi) that the payment of such requisition will not result in a
breach of any of the covenants of the Company contained in
subsection (c) or (d) of this Section 4.4. Any such
communication by telegram, telex or facsimile transmission shall
be promptly confirmed by a requisition executed by an Authorized
Company Representative. The Company shall upon request promptly
furnish to the Issuer a copy of any requisition delivered to the
Trustee.
(b) In paying any requisition under this Section 4.4, the
Trustee shall be entitled to rely as to the completeness and
accuracy of all statements in such requisition upon the approval
of such requisition by an Authorized Company Representative,
execution thereof to be conclusive evidence of such approval, and
the Company shall indemnify and save harmless the Issuer and the
Trustee from any liability incurred in connection with any
requisition so executed by an Authorized Company Representative.
(c) The Company shall not submit any requisition which, if
paid, would result, as of the date of such payment, in less than
95% of the net proceeds (within the meaning of Section 142(a) of
the Code and regulations thereunder) from the sale of any series
of Bonds, including earnings, but net of the amount, if any, used
to pay any rebate owing to the United States with respect to the
Bonds, pursuant to Section 148(f) of the Code, if any, on amounts
held in the Construction Fund, having been used (i) for the
acquisition, construction, reconstruction or improvement of land
or property of a character subject to the allowance for
depreciation under Section 167 of the Code, or for payment of
amounts which are, for federal income tax purposes, chargeable to
the Facilities' capital account (for example, under Section 263
of the Code) or would be so chargeable either with a proper
election by the Company or but for a proper election by the
Company to deduct such amounts and (ii) to provide solid waste
disposal, sewage, air pollution control and/or water pollution
control facilities within the meaning of the Code and regulations
thereunder; provided, however, that the moneys paid from the
Investment Account within the Construction Fund shall be
disregarded for purposes of any computation made in accordance
with the foregoing covenant if the Company shall have submitted
to the Trustee an opinion of Bond Counsel to the effect that such
moneys may be so disregarded without impairing the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
(d) The Company shall not submit or cause to be submitted
to the Trustee any requisition pursuant to this Section 4.4, and
shall have no claim upon any moneys in the Construction Fund, so
long as there shall have occurred and be continuing any Event of
Default described in Section 8.1 hereof.
<PAGE>
ARTICLE V
SALE AND PURCHASE OF THE PROJECT;
PURCHASE PRICE; FIRST MORTGAGE BONDS; OTHER OBLIGATIONS
SECTION 5.1. Sale and Purchase of the Facilities. The
Issuer agrees to sell and convey to the Company, without warranty
of any kind whatsoever, and the Company agrees to purchase and
acquire from the Issuer, upon the terms and conditions of, and at
the times specified in, this Agreement, the right, title and
interest in the Facilities acquired by the Issuer under Section
3.9 hereof.
On each transfer date on which a portion of the Facilities
is conveyed to the Issuer pursuant to Section 3.9 hereof, the
Issuer shall simultaneously reconvey to the Company by an Issuer
Deed the portion of the Facilities so conveyed to it by the
Company on such date, shall cause to be paid to the Company by
the Trustee the amount of the requisition submitted by the
Company or the amount remaining in the Construction Fund,
whichever is less, and shall cause the Trustee to make
disbursements from the Construction Fund in accordance with
Section 6.3 of the Indenture and Section 4.4 of this Agreement.
All transactions required to be done by the Company and the
Issuer on a transfer date shall be deemed to take place
simultaneously, and none of such transactions shall be deemed to
be completed until all such transactions have been completed.
Each transfer by the Issuer to the Company hereunder shall
be subject to those liens and encumbrances existing prior to
acquisition by the Issuer of the Company's right, title and
interest in such item or items or portion or portions of the
Facilities or created by the Company or to the creation or
suffering of which the Company consented and to Permitted
Encumbrances.
The Company shall pay all expenses, taxes, fees and charges
applicable to or arising from the delivery of any Issuer Deed
delivered pursuant hereto.
SECTION 5.2. Purchase Price. The price to be paid by the
Company for the Facilities shall be an amount equal to the
aggregate principal amount of Bonds outstanding under the
Indenture, and the interest to be paid by the Company on its
obligation to pay such price shall be an amount equal to the
aggregate of the premium, if any, and interest on the Bonds, such
price together with such interest thereon being for all purposes
of this Agreement referred to as the "purchase price of the
Facilities". The Company shall pay the purchase price of the
Facilities in installments due on the dates and in the amounts
and in the manner provided in the Indenture for the Issuer to
cause payment to be made to the Trustee of principal of and
premium, if any, and interest on the Bonds, whether at maturity,
upon redemption or acceleration, or otherwise; provided, however,
that the obligation of the Company to make any such payment
hereunder 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.
SECTION 5.3. Issuance, Delivery and Surrender of First
Mortgage Bonds. (a) The obligation of the Company set forth in
Section 5.2 hereof to pay the purchase price of the Facilities
may be evidenced, in whole or in part, by the First Mortgage
Bonds. With respect to the Series _______________ Bonds, the
Company shall issue and deliver to the Issuer First Mortgage
Bonds as provided in subsection (b) of this Section 5.3. With
respect to any series of Additional Bonds, the Company shall
issue and deliver to the Issuer First Mortgage Bonds as provided
in any amendment of or supplement to this Agreement related to
such series of Additional Bonds.
(b) Concurrently with the issuance and delivery by the
Issuer of the Series _______________ Bonds, and in order to
evidence the obligation of the Company under Section 5.2 hereof
to pay those installments of the purchase price of the Facilities
which correspond to payment of the principal of the Series
_______________ Bonds, the excess of the principal amount thereof
to be applied to the payment of accrued interest on the Series
_______________ Bonds, the Company shall issue and deliver to the
Issuer a series of First Mortgage Bonds (i) maturing on the
stated maturity date of the Series _______________ Bonds, (ii)
in a principal amount equal to the principal of the Series
_______________ Bonds plus eight months of the annual interest
(8/12) on the Series _______________ Bonds, (iii) containing
redemption provisions correlative to any provisions of the
Indenture relating to the Series _______________ 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.
(c) The obligation of the Company to make any payment of
the principal of or premium, if any, or interest 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.
(d) The Issuer shall not sell, assign or transfer the First
Mortgage Bonds, except to the extent provided in Section 5.4
hereof. In view of the pledge and assignment referred to in said
Section 5.4, the Issuer agrees that (i) in satisfaction of the
obligations of the Company set forth in paragraph (b) of this
Section 5.3 with respect to the Series _______________ Bonds, or
in any amendment of or supplement to this Agreement with respect
to any series of Additional 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
Trustees in accordance with the provisions of subsection (e) of
this Section 5.3; 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 Trustees or
any other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
4.10 of the Indenture shall be binding upon the Company.
(e) At the time any Bonds of any series cease to be
outstanding (other than by reason of the payment or redemption of
First Mortgage Bonds of the corresponding series and other than
by reason of the applicability of clause (c) in the definition of
"outstanding" herein):
(i) in the event that such Bonds were not
subject to redemption pursuant to a sinking fund
therefor, the Issuer shall cause the Trustee to
surrender to the Company Mortgage Trustees a
corresponding principal amount of First Mortgage
Bonds, plus, in the case of the Series
_______________ Bonds, a principal amount of such
First Mortgage Bonds equal to eight months of the
annual interest (8/12) payable in respect of such
series, of the series corresponding to such series of
Bonds, maturing on the same date as such Bonds; or
(ii) in the event that such Bonds were subject to
redemption pursuant to a sinking fund therefor, the
Issuer shall cause the Trustee to surrender to the
Company Mortgage Trustees a corresponding principal
amount of First Mortgage Bonds, of the series
corresponding to such series of Bonds, maturing, at
the election of the Company:
(A) on the same date as such Bonds; or
(B) on any sinking fund redemption date
relating to outstanding Bonds of such series;
provided, however, that the Company shall have
delivered to the Trustee pursuant to the
Indenture an irrevocable certificate specifying
that such Bonds are to be credited against the
sinking fund payment or payments to be made on
the maturity date, and in the principal amount,
of the First Mortgage Bonds so to be surrendered.
(f) For the purpose of determining whether or not any
payment of the principal of or premium, if any, or interest 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 11.2 of the Indenture shall be deemed to have
been paid by the Company to the Trustee pursuant to Section 5.5
hereof and not to have been paid by the Company in respect of the
First Mortgage Bonds.
SECTION 5.4. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments to be made by the
Company of the purchase price of the Facilities are, by the
Indenture, to be pledged by the Issuer to the Trustee, and that
all rights and interest of the Issuer hereunder (except for the
Issuer's rights under Sections 5.5, 5.6, 5.7, 6.3 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 to be pledged and
assigned to the Trustee. The Company assents to such pledge and
assignment and agrees that the obligation of the Company to make
the payments of the purchase price of the Facilities 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 of the purchase price of the
Facilities 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 the
Plant, or any portion thereof, shall have been completed or 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 that there shall be no abatement of
or diminution in any such payments by reason thereof, whether or
not the Facilities or the Plant 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 the Plant,
or for any other reason.
SECTION 5.5. Payment of Expenses. The Company shall pay,
or cause to be paid out of the Construction Fund, all of the
Administration Expenses of the Issuer, the compensation and the
reimbursement of expenses and advances of 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 5.6. 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, 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 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 5.6, 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 5.7. Payment of Taxes; Discharge of Liens. The
Company shall: (a) pay, or make provision for payment of, all
lawful taxes and assessments, including income, profits, property
or excise taxes, if any, or other municipal or governmental
charges, levied or assessed by any federal, state or municipal
government or political body upon the Issuer with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts, except Permitted
Encumbrances; provided, that, if the Company shall first notify
the Issuer and the Trustee of its intention so to do, the Company
may in good faith contest any such lien or charge or claims or
demands in appropriate legal proceedings, and in such event may
permit the items so contested to remain undischarged and
unsatisfied during the period of such contest and any appeal
therefrom, unless the Issuer or the Trustee shall notify the
Company in writing that, in the opinion of counsel to the Issuer
or the Trustee, by nonpayment of any such items the lien of the
Indenture as to the amounts payable hereunder will be materially
endangered, in which event the Company shall promptly pay and
cause to be satisfied and discharged all such unpaid items. The
Issuer shall cooperate fully with the Company in any such
contest.
<PAGE>
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; provided, however, that the Company may consolidate
with or merge with or into, or sell or otherwise transfer all or
substantially all of its assets (and may thereafter dissolve) to,
another corporation, incorporated under the laws of the United
States, one of the states thereof or the District of Columbia, if
the surviving, resulting or transferee corporation, as the case
may be (if other than the Company), prior to or simultaneously
with such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder and on the First Mortgage Bonds.
If consolidation, merger or sale or other transfer is made
as permitted by this Section 6.1, the provisions of this Section
6.1 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 6.1.
SECTION 6.2. Permits or Licenses. In the event that it
may be necessary for the proper performance of this Agreement on
the part of the Company or the Issuer that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the Issuer, the Company and the Issuer each shall,
upon the request of either, execute such application or
applications.
SECTION 6.3. Issuer's and Trustee's Access to Facilities.
The Issuer and the Trustee shall have the right, upon appropriate
prior notice to the Company, to have reasonable access to the
Facilities during normal business hours for the purpose of making
examinations and inspections of the same.
SECTION 6.4. Arbitrage Covenant. The Issuer and the
Company covenant that 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. The Company further covenants that: (a)
all actions with respect to the Bonds required by Section 148(f)
of the Code shall be taken; (b) it shall make the determinations
required by paragraph (b) of Section 7.2 of the Indenture and
promptly notify the Trustee of the same, together with supporting
calculations; and (c) it shall within twenty-five (25) days after
(i) the calendar date which corresponds to the final maturity of
the respective series of Bonds and each anniversary thereof
falling on or after the date of initial authentication and
delivery thereof up to and including the final maturity of such
series of the Bonds, unless the final payment, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by the chief financial
officer of the Company to the effect that the Company is then in
compliance with its covenants contained in clauses (a) and (b) of
this sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
SECTION 6.5. Use of Facilities. The Company shall cause
the Facilities to be used for the disposal of sewage or solid
waste and/or the control of air or water pollution.
SECTION 6.6. No Warranties. The Issuer makes no warranty,
either express or implied, with respect to the Facilities as a
whole or with respect to any item or portion of the Facilities.
Without limiting the effect of the preceding sentence, it is
expressly agreed that in connection with each sale or conveyance
pursuant to Section 5.1 of this Agreement (a) the Issuer makes no
warranty that the title conveyed shall be good or that the
Facilities or any portion thereof shall be delivered free from
any security interest or other lien or encumbrance, and (b) the
Issuer makes no warranty of merchantability.
SECTION 6.7. Quiet Enjoyment. The Issuer covenants that
the Company, upon observing and performing the terms, conditions
and covenants on the Company's part to be observed and performed
under this Agreement, shall peaceably and quietly have, hold and
enjoy the Facilities as purchaser in possession, free from
molestation, hindrance, eviction or disturbance by the Issuer or
by any other person or persons claiming the same by, through or
under the Issuer.
SECTION 6.8. Tax Exempt Status of Bonds. The Issuer and
the Company mutually covenant and agree that neither of them
shall take or authorize or permit any action to be taken, and
have not taken or authorized or permitted any action to be taken,
which results in interest paid on the Bonds being included in
gross income for purposes of federal income taxes. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
(a) Not less than 95% of the net proceeds (within the
meaning of Section 142(a) of the Code and regulations
thereunder) from the sale of the Series _______________
Bonds and any issue of Additional Bonds will be expended
(i) (A) for Costs of Construction which consist of proper
costs of land or property of a character subject to the
allowance for depreciation under Section 167 of the Code,
or which will be, for federal income tax purposes,
chargeable to capital account or would have been so
chargeable either with a proper election by the Company
(for example under Section 266 of the Code) or but for a
proper election by the Company to deduct such amounts, and
(B) to provide solid waste disposal, sewage, air pollution
control and/or water pollution control facilities within
the meaning of the Code and regulations thereunder; (ii)
for the redemption of all or part of the Series
_______________ Bonds or Additional Bonds the proceeds of
which were used as stated in (i) above; or (iii) any
combination thereof.
(b) Within fifteen (15) days of the date of issuance
of the Series _______________ Bonds or any series of
Additional Bonds, there neither have been nor will there be
any private activity bonds (within the meaning of Section
141(a) of the Code) sold to finance facilities of the
Company or any related person within the meaning of Section
147(a)(2) of the Code, under a common plan of marketing, at
substantially the same rate of interest, and for which a
common or pooled security will be used or available to pay
debt service.
(c) The average maturity of the Series
_______________ Bonds or any series of Additional Bonds
(within the meaning of Section 147(b) of the Code and
regulations thereunder) does not exceed 120% of the average
reasonably expected economic life of the Facilities
financed by such Bonds (within the meaning of Section
147(b) of the Code and regulations thereunder), determined
with respect to any facility as of the later of the date on
which the Series _______________ Bonds or Additional
Bonds, as the case may be, are issued or the date on which
such facilities are to be or were placed in service (or
expected to be placed in service).
(d) No changes will be made in the Facilities or the
manner of use thereof which in any way impairs the
exclusion of interest on any of the Bonds from gross income
for purposes of federal income taxation.
(e) No more than 25% of the proceeds of the Series
_______________ Bonds or any series of Additional Bonds
will be used to provide land or a facility the primary
purpose of which is one of the following: retail, food and
beverage services, automobile sales or service, or the
provision of recreation or entertainment.
(f) No portion of the proceeds of the Series
_______________ Bonds or any series of Additional Bonds
will be used to provide or acquire any of the following:
(i) any private or commercial golf course, country club,
massage parlor, tennis club, skating facility (including
roller skating, skateboard and ice skating), racquet sports
facility (including any handball or racquetball court), hot
tub facility, suntan facility, racetrack, airplane, skybox
or other private luxury box, health club facility, facility
primarily used for gambling, or a store the principal
business of which is the sale of alcoholic beverages for
consumption off premises; (ii) land to be used for farming
purposes; or (iii) residential real property for family
units.
(g) No portion of the proceeds of the Series
_______________ Bonds or any series of Additional Bonds
will be used for the acquisition of any property (or an
interest therein) unless the first use of such property is
pursuant to such acquisition, except for property with
respect to which qualified rehabilitation expenditures are
made pursuant to and in the amounts specified in Section
147(d) of the Code.
(h) No action shall be taken that will cause the
Series _______________ Bonds or any series of Additional
Bonds to be "federally guaranteed" as defined in Section
149(b) of the Code.
(i) No portion of the proceeds of the Series
_______________ Bonds or any series of Additional Bonds in
excess of 2% of the proceeds thereof (within the meaning of
Section 147(g) of the Code and regulations thereunder) will
be used to finance costs of issuance of such Bonds.
The covenants and agreements contained in this Section 6.8 shall
survive any termination of this Agreement.
<PAGE>
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Issuer. Except as provided in Article
V 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 5.2 and 5.3 hereof (including its
obligations on the First Mortgage Bonds) to pay the purchase
price of the Facilities, or for any other of its obligations
hereunder, other than those obligations relating to the
construction of the Facilities (if such assignment, lease or sale
occurs prior to the Completion Date) and 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.
After any lease or sale of any element or unit of the
Facilities, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Facilities for the purposes of this Agreement.
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.
SECTION 7.3. Limitation. This Agreement shall not be
assigned nor shall the Facilities be leased or sold, in whole or
in part, except as provided in this Article VII or in Section 6.1
hereof or in the Indenture.
<PAGE>
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 Section 65
of the Company Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 5.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 10.1 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 State of Louisiana, 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 obligations under
Section 5.2 hereof to pay the purchase price of the Facilities
and its obligations under Sections 5.7, 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 5.2 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 or the Trustee 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 or 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 required in this Article.
SECTION 8.5. Agreement to Pay Attorneys' Fees and Expenses
. In the event the Company should default under any of the
provisions of this Agreement and the Issuer or the Trustee should
employ attorneys or incur other expenses for the collection of
payments due hereunder 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 herein, the
Company agrees that it will on demand therefor pay to the Issuer
or the Trustee, as the case may be, the reasonable fees of such
attorneys and such other 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.
<PAGE>
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
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 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
purchase price of the Facilities, any moneys or Government
Securities (as defined in the Indenture) 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 and of the series and maturities specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
<PAGE>
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
SECTION 10.1. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 4.4 of the Indenture.
SECTION 10.2. 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.
<PAGE>
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. 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: Louisiana Power & Light Company
639 Loyola Avenue
New Orleans, LA 70113
Attention: Chief Financial Officer
Issuer: Parish of St. Charles
P. O. Box 302
Hahnville, LA 70057
Attention: Secretary, Parish Council
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 11.2. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
SECTION 11.3. Execution of Counterparts. This Agreement
may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but
one and the same instrument.
SECTION 11.4. Amounts Remaining in Bond Fund. It is agreed
by the parties hereto that after payment in full of (i) the Bonds
(or the provision for payment thereof having been made in
accordance with the provisions of the Indenture), (ii) the
Administration Expenses of the Issuer, and (iii) all other
amounts required to be paid under this Agreement and the
Indenture, any amounts remaining in the Bond Fund shall belong to
and be paid by the Trustee to the Company.
SECTION 11.5. Amendments, Changes and Modifications.
Except as otherwise provided in this Agreement or the Indenture,
subsequent to the initial issuance of Bonds and prior to payment
in full of the Bonds (or provision for payment thereof having
been made in accordance with the provisions of the Indenture),
this Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived without the
written consent of the Trustee, which shall not be unreasonably
withheld.
SECTION 11.6. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable laws of the State of Louisiana.
SECTION 11.7. Authorized Company Representatives. An
Authorized Company Representative shall act on behalf of the
Company whenever the approval of the Company is required or the
Company requests the Issuer to take some action, and the Issuer
and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint
against the other or against the Trustee as a result of any such
action taken.
SECTION 11.8. 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 11.9. 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 11.10. 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.
<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 ST. CHARLES,
STATE OF LOUISIANA
By: ______________________________
Parish President
ATTEST:
By: __________________________________ [SEAL]
Secretary
St. Charles Parish Council
LOUISIANA POWER & LIGHT COMPANY
By: __________________________
Title:
ATTEST:
By: __________________________________ [SEAL]
Title:
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.1. Definitions -2-
SECTION 1.2. Use of Words and Phrases -6-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE II
REPRESENTATIONS
<S> <C>
SECTION 2.1. Representations and Warranties of the Issuer -7-
SECTION 2.2. Representations and Warranties of the Company -7-
SECTION 2.3. Intention; Official Action -8-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE III
THE FACILITIES; CONVEYANCE TO THE ISSUER
<S> <C>
SECTION 3.1. Construction of the Facilities -9-
SECTION 3.2. Insufficient Moneys in Construction Fund -9-
SECTION 3.3. Revision of Plans and Specifications -9-
SECTION 3.4. Certification of Completion Date -10-
SECTION 3.5. Maintenance of Facilities; Remodeling -10-
SECTION 3.6. Insurance -10-
SECTION 3.7. Condemnation; Eminent Domain -11-
SECTION 3.8. Termination of Construction -11-
SECTION 3.9. Conveyance to the Issuer -12-
SECTION 3.10. Ledger -12-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
<S> <C>
SECTION 4.1. Issuance of the Series _____________Bonds -13-
SECTION 4.2. Additional Bonds -13-
SECTION 4.3. Disposition of Bond Proceeds -13-
SECTION 4.4. Disbursements from the Construction Fund -13-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE V
SALE AND PURCHASE OF THE PROJECT;
PURCHASE PRICE; FIRST MORTGAGE BONDS; OTHER OBLIGATIONS
<S> <C>
SECTION 5.1. Sale and Purchase of the Facilities -15-
SECTION 5.2. Purchase Price -15-
SECTION 5.3. Issuance, Delivery and Surrender of First
Mortgage Bonds -15-
SECTION 5.4. Payments Assigned; Obligation Absolute -17-
SECTION 5.5. Payment of Expenses -17-
SECTION 5.6. Indemnification -18-
SECTION 5.7. Payment of Taxes; Discharge of Liens -18-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
<S> <C>
SECTION 6.1. Maintenance of Corporate Existence -19-
SECTION 6.2. Permits or Licenses -19-
SECTION 6.3. Issuer's and Trustee's Access to Facilities -19-
SECTION 6.4. Arbitrage Covenant -19-
SECTION 6.5. Use of Facilities -20-
SECTION 6.6. No Warranties -20-
SECTION 6.7. Quiet Enjoyment -20-
SECTION 6.8. Tax Exempt Status of Bonds -20-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
<S> <C>
SECTION 7.1. By the Issuer -22-
SECTION 7.2. By the Company -22-
SECTION 7.3. Limitation -22-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
<S> <C>
SECTION 8.1. Events of Default -23-
SECTION 8.2. Force Majeure -23-
SECTION 8.3. Remedies on Default -23-
SECTION 8.4. No Remedy Exclusive -24-
SECTION 8.5. Agreement to Pay Attorneys' Fees and Expenses -24-
SECTION 8.6. Waiver of Breach -24-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
<S> <C>
SECTION 9.1. Redemption of Bonds -25-
SECTION 9.2. Purchase of Bonds -25-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
<S> <C>
SECTION 10.1. Recording and Filing -26-
SECTION 10.2. Photocopies and Reproductions -26-
</TABLE>
<TABLE>
<CAPTION>
ARTICLE XI
MISCELLANEOUS
<S> <C>
SECTION 11.1. Notices -27-
SECTION 11.2. Severability -27-
SECTION 11.3. Execution of Counterparts -27-
SECTION 11.4. Amounts Remaining in Bond Fund -27-
SECTION 11.5. Amendments, Changes and Modifications -27-
SECTION 11.6. Governing Law -28-
SECTION 11.7. Authorized Company Representatives -28-
SECTION 11.8. Term of the Agreement -28-
SECTION 11.9. No Personal Liability -28-
SECTION 11.10. Parties in Interest -28-
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
EXHIBIT A Description of Facilities
EXHIBIT B Company Deed
EXHIBIT C Issuer Deed
<PAGE>
EXHIBIT A TO
INSTALLMENT SALE AGREEMENT
DESCRIPTION OF THE FACILITIES
The facilities include the following solid and liquid radwaste
systems and storage buildings and facilities:
1. Spent Fuel Storage Facilities. The spent fuel storage
facilities store and handle spent nuclear fuel assemblies. Major
components of the facilities include a spent fuel pool, cask
decontamination and loading pit, cooling and purification
systems, fuel handling crane, fuel transport equipment, and spent
fuel cask crane. Also included are instrumentation and equipment
for handling and inspecting spent fuel and other functionally
related and subordinate facilities.
2. Radioactive Liquid Waste Treatment Facilities. The radioactive
liquid waste treatment facilities collect, process, treat,
recycle and dispose of radioactive liquid waste resulting from
normal operation of the Plant. Major components of the facilities
include the low level liquid waste subsystem, the boron
management subsystem and the laundry waste management subsystem.
3. Portion of the Reactor Auxiliary Building. The portions of the
Reactor Auxiliary Building included herein are those which are
provided for the systems described above. The Reactor Auxiliary
Building is located adjacent to the Reactor Containment Building.
4. Changes, Additions, Substitutions and Deletions. Any changes
in, additions to, substitutions for or deletions of the
Facilities pursuant to the provisions of this Agreement.
<PAGE>
EXHIBIT B TO
INSTALLMENT SALE AGREEMENT
DEED AND BILL OF SALE
STATE OF LOUISIANA
PARISH OF ST. CHARLES
KNOW ALL MEN BY THESE PRESENTS, that Louisiana Power &
Light Company, a Louisiana corporation (hereinafter called the
"Company"), appearing herein through and represented by
_______________ and ___________, who are respectively
________________ and _________________, duly authorized by a
resolution adopted by the Executive Committee of its Board of
Directors on _________, 1994, does by these presents grant,
bargain, sell, convey, transfer, assign, set over, abandon and
deliver with all legal warranties, and with full substitution and
subrogation in and to all rights and actions of warranty which it
has or may have against all preceding owners and vendors,
subject, however, to Permitted Encumbrances as defined in the
Installment Sale Agreement dated as of _______________ (the
"Sale Agreement"), between the Company and the Parish of St.
Charles, State of Louisiana, a political subdivision of the State
of Louisiana (herein called the "Parish"), unto:
The Parish, appearing herein through and represented by
Chris A. Tregre and Joan Becnel, who are respectively the Parish
President and Secretary to the Parish Council of said Parish,
acting on behalf of the Parish by the authority of an ordinance
adopted by its Parish Council at a meeting held on ____________,
1994, said Parish being here present, accepting and purchasing
for itself, its successors and assigns, and acknowledging due
delivery and possession thereof, all and singular the property
described on the schedule attached hereto.
TO HAVE AND TO HOLD the above described property unto
the Parish, its successors and assigns, forever.
This sale is made and accepted for and in consideration
of the sum of $____________ cash, receipt of which is hereby
acknowledged, pursuant to the terms and conditions contained in
the Sale Agreement.
All State, Parish and local taxes have been paid by the
Company. Taxes for the current year will be paid by the Company.
<PAGE>
WITNESS THE SIGNATURES of the parties this ____ day of______, 1994.
ATTEST: LOUISIANA POWER & LIGHT COMPANY
By:___________________________ By:_____________________________
Title: Title:
PARISH OF ST. CHARLES,
ATTEST: STATE OF LOUISIANA
By:___________________________ By:________________________________
Secretary Parish President
St.Charles Parish Council
<PAGE>
SCHEDULE
PROPERTY DESCRIPTION
<PAGE>
EXHIBIT C TO
INSTALLMENT SALE AGREEMENT
DEED AND BILL OF SALE
STATE OF LOUISIANA
PARISH OF ST. CHARLES
KNOW ALL MEN BY THESE PRESENTS, that the Parish of St.
Charles, State of Louisiana, a political subdivision of the State
of Louisiana (hereinafter called the "Parish"), appearing herein
through and represented by Chris A. Tregre and Joan Becnel, who
are respectively the Parish President and Secretary to the Parish
Council of the Parish of St. Charles, acting on behalf of the
Parish by the authority of an ordinance adopted by its Parish
Council at a meeting held on __________, 1994, does by these
presents grant, bargain, sell, convey, transfer, assign, set
over, abandon and deliver without any warranty whatsoever of any
nature or description, even for the return of the purchase price,
but with full substitution and subrogation in and to the all
rights and actions of warranty which it has or may have against
all preceding owners and vendors, unto:
Louisiana Power & Light Company, a Louisiana corporation
(hereinafter called the "Company"), appearing herein through and
represented by ____________ and ____________ who are respectively
_______________ and _____________ of the Company, duly authorized
by a resolution adopted by the Executive Committee of its Board
of Directors on ________, 1994, said Company being here present,
accepting and purchasing for itself, its successors and assigns,
and acknowledging due delivery and possession thereof, all and
singular the property described on the schedule attached hereto.
TO HAVE AND TO HOLD the above described property unto the
Company, its successors and assigns, forever.
This sale is made and accepted for and in consideration of
the sum of $_________, in representation of which the Company
binds and obligates itself to pay all sums, whether of principal,
premium or interest on _______________ aggregate principal amount
of Parish of St. Charles, State of Louisiana Environmental
Revenue Bonds (Louisiana Power & Light Company Project) Series
_______________, issued by the Parish pursuant to the terms of an
Installment Sale Agreement dated as of _______________ between
the Parish and the Company (the "Sale Agreement"), and a Trust
Indenture dated as of _______________ between the Parish and
First National Bank of Commerce, as trustee; the obligations of
the Company under the Sale Agreement being incorporated herein as
if fully set forth herein. As provided in Section 5.3 of the
Sale Agreement, the obligation to pay the purchase price may be
evidenced by First Mortgage Bonds of the Company.
It is expressly understood and agreed that no lien and/or
privilege of any kind, including without limitation, the vendor's
lien and/or privilege, is retained by or granted to the Parish in
connection herewith, or shall result herefrom; and the Parish
does further hereby specifically waive, release, relinquish,
renounce and disclaim to the extent permitted by law (a) any and
all liens and/or privileges on, in, over or in anywise with
respect to the property herein sold and conveyed and any and all
portions thereof (with respect to both movable and immovable
components and parts thereof), including without limitation any
vendor's lien and/or privilege thereon or with respect thereto,
(b) any and all right to a rescission, dissolution, revocation or
cancellation of this sale and conveyance, whether for non-payment
of the purchase price (or any part thereof) or any other reason,
and (c) any and all right to assert any and all resolutory
conditions whatsoever, whether express, implied, resulting from
operation of law, or otherwise, with respect to this sale and
conveyance.
<PAGE>
All State, Parish and local taxes have been paid by the
Company. Taxes for the current year will be paid by the Company.
WITNESS THE SIGNATURES of the parties this ______ day of
______, 1994.
PARISH OF ST. CHARLES,
ATTEST: STATE OF LOUISIANA
By: ___________________________ By:_________________________________
Secretary Parish President
St. Charles Parish Council
ATTEST: LOUISIANA POWER & LIGHT COMPANY
By:___________________________ By:_________________________________
Title: Title:
<PAGE>
SCHEDULE
PROPERTY DESCRIPTION
Exhibit B-7
SECOND MORTGAGE and SECOND CHATTEL MORTGAGE
By
LOUISIANA POWER & LIGHT COMPANY
In Favor Of
PARISH OF ST. CHARLES,
FIRST NATIONAL BANK OF COMMERCE
AS TRUSTEE, and
__________________________________________________________
This Mortgage and Chattel Mortgage, secondary and subordinate
as hereinafter set forth, made and entered into as of the ____ day
of______________, 19___,
WITNESSETH THAT:
WHEREAS, Louisiana Power & Light Company, a Louisiana
corporation domiciled in the Parish of Orleans, State of
Louisiana, herein acting through and represented by_________________,
its______________________________ , hereunto duly authorized by
resolutions of its Board of Directors adopted on ___________________,
19____, and of the Executive Committee of its Board of Directors
adopted on ______________, 19____, a certified true copy of each
of which is attached hereto (the said Louisiana Power & Light
Company being a public utility corporation and being sometimes
hereinafter referred to as "Mortgagor"), has entered into a
certain Sale Agreement, dated as of _______________, 19_____
(sometimes hereinafter referred to as the "Agreement"), with the
Parish of St. Charles, Louisiana, a political subdivision of the
State of Louisiana (sometimes hereinafter referred to as the
"Parish"), providing among other things for the sale (on a cash
basis) to and repurchase (on an installment payment basis) from
the Parish, by the Mortgagor, of certain facilities, therein and
in Exhibit "A" attached hereto and made a part hereof fully
described, for the abatement or control of air and water
pollution or contamination by removing, altering, disposing of or
storing pollutants, contaminants and wastes and for disposal of
sewerage and solid waste (said facilities being sometimes
hereinafter referred to as the "Project"), for the prices and on
the terms therein set forth, and obligating the Mortgagor in
various other respects; and
WHEREAS, the Parish and the First National Bank of Commerce,
New Orleans, Louisiana, a national banking association, as
Trustee (sometimes hereinafter referred to as the "Trustee"),
have entered into a certain Trust Indenture dated as of
, 19 (sometimes hereinafter referred to as the "Indenture"),
wherein and whereby, among other things, the Parish has
transferred and assigned to the Trustee certain of the rights of
the Parish under the Agreement, including certain rights
resulting from or represented by concomitant obligations of the
Mortgagor under the Agreement, in consequence whereof the
Mortgagor has become obligated in such respects to the Trustee;
and
WHEREAS, the Mortgagor has entered into a certain letter of
credit and reimbursement agreement dated as of ___________________,
19___ (sometimes hereinafter referred to as the "Reimbursement
Agreement"), with ______________________________________, a
national banking association (sometimes hereinafter referred to
as the "Bank"), by and under which the Mortgagor has obligated
itself to the Bank as set forth in the Reimbursement Agreement;
and
WHEREAS, the operation of and interaction among the
Agreement, the Indenture and the Reimbursement Agreement cause
the Mortgagor to be obligated to the Parish, the Trustee and the
Bank in various other and additional respects; and
WHEREAS, the Mortgagor desires to provide to the Parish, the
Trustee and the Bank, and to each of them (the Parish, the
Trustee and the Bank being sometimes hereinafter referred to
together as the "Mortgagees", each of the Mortgagees being herein
represented by and acting through its undersigned officer or
representative, hereunto duly authorized), certain security as
hereinafter set forth for the due performance and satisfaction by
the Mortgagor of the obligations of the Mortgagor aforesaid;
NOW, THEREFORE, in order to secure the due performance and
satisfaction by the Mortgagor of its obligations to the
Mortgagees and to each of them under, by virtue of and/or
resulting from the Agreement, the Indenture and/or the
Reimbursement Agreement, each as it may hereafter be supplemented
and/or amended, the Mortgagor does hereby mortgage, affect and
specially hypothecate, to and in favor of the said Mortgagees and
each of them, and to inure to the use and benefit of the said
Mortgagees and each of them and to the use and benefit of any
future assignee or assignees or owner or owners of any rights of
the Mortgagees or any of them under the above mentioned
instruments or any of them which result from or are represented
by concomitant obligations of the Mortgagor, in consequence
whereof the Mortgagor shall become obligated to such assignee or
assignees or owner or owners, this mortgage being, however,
secondary and subordinate as hereinafter set forth, the said
Mortgagees here accepting such mortgage, the aforesaid Project,
more fully and specifically described in Exhibit "A" attached
hereto and made a part hereof, all located at, on and/or in Unit
No. 3 (nuclear) of Mortgagor's Waterford Steam Electric
Generating Station and/or at, on and/or in the site thereof,
situated at or near Taft and Killona in St. Charles Parish,
Louisiana, which said site consists of and includes those certain
tracts or parcels of land particularly described in Paragraph
Five, Sub-Paragraph (2)(a) and (b) of the property description
section of the Mortgage and Deed of Trust (hereinafter referred
to and defined), in Paragraph Three, Sub-Paragraphs (16) and (17)
of the property description section of the Seventh Supplemental
Indenture, dated as of June 1, 1964, and in Paragraph Three, Sub-
Paragraph (7) of the Sixteenth Supplemental Indenture, dated as
of January 1, 1972, said Indentures being supplemental to the
Mortgage and Deed of Trust, which said three instruments are
filed and recorded in the Mortgage Records of St. Charles Parish,
Louisiana in Mortgage Book 46, folio 71, in Mortgage Book 88,
folio 334, and in Mortgage Book 160, folio 296, respectively; the
aforesaid Project so mortgaged being more fully and specifically
described on the document bearing the designation or title
"Description of the Project", and marked Exhibit "A" for further
identification, which is attached hereto and incorporated herein
as a part hereof.
The property described as above set forth and herein
mortgaged is now and shall remain located at, on and/or in Unit
No. 3 (Nuclear) of Mortgagor's Waterford Steam Electric
Generating Station, and/or at, on and/or in the aforesaid site
thereof, situated at or near Taft and Killona in St. Charles
Parish, Louisiana.
The sum for which this mortgage is given, and the maximum
amount secured by this mortgage, is _____________________________
($_____________).
This mortgage is and shall be secondary and subordinate to,
and is and shall continue to be primed by, Mortgagor's Mortgage
and Deed of Trust, dated as of April 1, 1944, made to The Chase
National Bank of the City of New York and Carl E. Buckley, as
Trustees (The Chase Manhattan Bank (National Association) and J.
A. Payne, successor Trustees) (sometimes herein referred to as
the "Mortgage and Deed of Trust"), as it has been supplemented
and/or amended heretofore by _____________________ Supplemental
Indentures (all of which (including the Mortgage and Deed of
Trust) are filed and recorded in the Mortgage Records of forty-
six parishes in the State of Louisiana, including St. Charles
Parish) and as said Mortgage and Deed of Trust may hereafter be
supplemented and/or amended, and this mortgage is so made by the
Mortgagor and so accepted by the Mortgagees.
This mortgage is, and shall operate and be effective as,
both a second mortgage of immovable property and a second chattel
mortgage under the applicable laws of Louisiana.
This mortgage imposes and shall impose no duties or obligations
whatsoever upon the Mortgagees, and it is so made by the
Mortgagor and accepted by the Mortgagees.
The parties hereto waive and dispense with the production
and/or attachment of any and all mortgage certificates, chattel
mortgage certificates, tax research certificates and any other
certificates which are or may be required by law.
IN WITNESS WHEREOF, this Second Mortgage and Second Chattel
Mortgage has been signed and executed by Louisiana Power & Light
Company, herein represented and acting by and through
, its _________________________________ , and by the First
National Bank of Commerce, as Trustee, herein represented and
acting by and through ________________________________ , its,
______________________, and by _______________________________,
herein represented and acting by and through ______________________,
its______________________________________in the City of New Orleans,
State of Louisiana, and by __________________________________, the
Parish President, in St. Charles Parish, Louisiana, all being hereunto
duly authorized and all as of the day and date first hereinabove
written, each in the presence of two undersigned competent witnesses.
<PAGE>
WITNESSES: LOUISIANA POWER & LIGHT COMPANY
___________________________ By:_________________________________
Its:________________________________
___________________________
PARISH OF ST. CHARLES, LOUISIANA
___________________________ By:_________________________________
Its:________________________________
___________________________
FIRST NATIONAL BANK OF COMMERCE
___________________________ By:_________________________________
Its:________________________________
___________________________
___________________________ By:_________________________________
Its:________________________________
___________________________
<PAGE>
ACKNOWLEDGMENT
______________
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, duly commissioned
and qualified in and for the State and Parish aforesaid, personally
came and appeared ________________________________________________,
to me known, who declared and acknowledged to me, Notary, and the
undersigned competent witnesses, that he is the _____________________
of Louisiana Power & Light Company, a Louisiana corporation, and
that as such officer and in the name and on behalf of said
corporation, by and with the authority of the Board of Directors
of said corporation, he signed and executed the foregoing
instrument as the free and voluntary act and deed of said
corporation and for the uses, objects and purposes therein set
forth.
IN WITNESS WHEREOF, I, Notary, have hereunto set my hand and
official seal and the said appearer and the said witnesses have
hereunto affixed their signatures, each signing in the presence
of all of the others, on this __________ day of ____________,19___.
WITNESSES:
_____________________________ _________________________________
Appearer
_____________________________
_______________________________
Notary Public
<PAGE>
ACKNOWLEDGMENT
______________
STATE OF LOUISIANA
PARISH OF ST. CHARLES
BEFORE ME, the undersigned Notary Public, duly commissioned
and qualified in and for the State and Parish aforesaid,
personally came and appeared __________________________________,
to me known, who declared and acknowledged to me, Notary, and the
undersigned competent witnesses, that he is the Parish President
of the Parish of St. Charles, a political subdivision of the
State of Louisiana, and that as such officer and in the name and
on behalf of said Parish, by and with the authority of the St.
Charles Parish Council (the governing authority of said Parish),
he signed and executed the foregoing instrument as the free and
voluntary act and deed of said Parish and for the uses, objects
and purposes therein set forth.
IN WITNESS WHEREOF, I, Notary, have hereunto set my hand and
official seal and the said appearer and the said witnesses have
hereunto affixed their signatures, each signing in the presence
of all of the others, on this ______ day of_____________ , 19___.
WITNESSES:
____________________________ _________________________________
Parish President,
Parish of St. Charles
____________________________
Notary Public
<PAGE>
ACKNOWLEDGMENT
______________
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, duly commissioned
and qualified in and for the State and Parish aforesaid,
personally came and appeared ____________________________________,
to me known, who declared and acknowledged to me, Notary, and the
undersigned competent witnesses, that he is the _______________________
of the First National Bank of Commerce, a national banking
association (the "corporation"), and that as such officer and in
the name and on behalf of said corporation, by and with the
authority of the Board of Directors of said corporation, he
signed and executed the foregoing instrument as the free and
voluntary act and deed of said corporation and for the uses,
objects and purposes therein set forth.
IN WITNESS WHEREOF, I, Notary, have hereunto set my hand and
official seal and the said appearer and the said witnesses have
hereunto affixed their signatures, each signing in the presence
of all of the others, on this _______ day of____________, 19____.
WITNESSES:
_____________________________ _________________________________
Appearer
________________________________
Notary Public
<PAGE>
ACKNOWLEDGMENT
______________
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, duly commissioned
and qualified in and for the State and Parish aforesaid,
personally came and appeared ____________________________________,
to me known, who declared and acknowledged to me, Notary, and the
undersigned competent witnesses, that he is the ______________________
of ______________________________________, a national banking
association (the "corporation"), and that as such officer and in
the name and on behalf of said corporation, by and with the
authority of the Board of Directors of said corporation, he
signed and executed the foregoing instrument as the free and
voluntary act and deed of said corporation and for the uses,
objects and purposes therein set forth.
IN WITNESS WHEREOF, I, Notary, have hereunto set my hand and
official seal and the said appearer and the said witnesses have
hereunto affixed their signatures, each signing in the presence
of all of the others, on this _______ day of_________, 19___.
WITNESSES:
_____________________________ _________________________________
Appearer
________________________________
Notary Public
Exhibit B-8
____________, 1996
To prospective purchasers
of the Debentures of
Louisiana Power & Light Company
Gentlemen:
Louisiana Power & Light Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $575,000,000 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,
LOUISIANA POWER & LIGHT COMPANY
By:_______________________________
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
LOUISIANA POWER & LIGHT 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 To be designated by the Company in the Notice.
Interest will Accrue
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 specified in the Notice, the Company
if 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-9
[FORM OF DEBENTURE UNDERWRITING AGREEMENT]
WSP&R
DRAFT
8/21/95
LOUISIANA POWER & LIGHT COMPANY
$________________________
___% Debentures due ____
UNDERWRITING AGREEMENT
_______ __, ____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies & Gentlemen:
The undersigned, Louisiana Power & Light Company, a
Louisiana corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $___________ principal amount of the Company's
___% Debentures due ____ (the "Debentures"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters and each Underwriter
shall purchase from the Company at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at ______% of the
principal amount of the Debentures [plus accrued interest thereon
from _____ __, ____ to the Closing Date].
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of ________ __, ____ between the Company and _____________, as
Trustee (the "Trustee"), as supplemented by the _________________
Supplemental Indenture, dated as of ________ __, ____ (the
"Supplemental Indenture"), to said Indenture. Said Indenture, as
supplemented and as it will be further supplemented by the
Supplemental Indenture is hereinafter referred to as the
"Indenture". The Debentures, the Indenture and the Supplemental
Indenture shall have the terms and provisions described in the
Prospectus (as defined herein), provided that subsequent to the
date hereof and prior to the Closing Date the form of the
Indenture and the form of the Supplemental Indenture may be
amended by mutual agreement between the Company and the
Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Louisiana and has the necessary corporate power and authority to
conduct the business which it is described in the Prospectus
(hereinafter defined) as conducting and to own and operate the
properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 33-______) for the registration of
$_______________ principal amount of the Company's debt
securities (including the Debentures) under the Securities Act of
1933, as amended (the "Securities Act") (of which an aggregate of
$___________ of such debt securities remain unsold), and such
registration statement has become effective. The Company
qualifies for use of Form S-3 for the registration of the
Debentures. The prospectus forming a part of the registration
statement, at the time such registration statement (or the most
recent amendment thereto filed prior to the time of effectiveness
of this Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time pursuant
to Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus". In the event that the Basic Prospectus shall have
been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to debt securities other than the Debentures)
prior to the time of effectiveness of the Underwriting Agreement,
and with respect to any documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the
registration statement became effective and up to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely to
debt securities other than the Debentures), which documents are
deemed to be incorporated by reference in the Basic Prospectus,
the term "Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Debentures by a prospectus
supplement (a "Prospectus Supplement") to be filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act ("Rule 424"), are hereinafter referred
to as the "Registration Statement" and the "Prospectus,"
respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to debt securities other than the
Debentures), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document which is to be incorporated by reference in, or
any supplement to the Basic Prospectus, in either case, without
prior notice to this Underwriters and to Winthrop, Stimson,
Putnam & Roberts ("Counsel for the Underwriters"), or any such
amendment or supplement to which said Counsel shall reasonably
object on legal grounds in writing. For purposes of this
Underwriting Agreement, any document which is filed with the
Commission after the time of effectiveness of this Underwriting
Agreement and is incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely to
debt securities other than the Debentures) pursuant to Item 12 of
Form S-3 shall be deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Indenture, at such time, fully
complied, and the Prospectus, when filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 and at the Closing
Date, as it may then be amended or supplemented, will fully
comply in all material respects with the applicable provisions of
the Securities Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, on the date first filed with the Commission pursuant
to the Exchange Act, fully complied or will fully comply in all
material respects with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations are or will be deemed to
comply therewith. On the later of (i) the date the Registration
Statement was declared effective by the Commission under the
Securities Act or (ii) the date that the Company's most recent
Annual Report on Form 10-K was filed with the Commission under
the Exchange Act (the date described in either clause (i) or (ii)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any post-
effective amendment to the Registration Statement became or
becomes effective (but excluding any post-effective amendment
relating solely to debt securities other than the Debentures),
the Registration Statement as amended by any such post-effective
amendment did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date (as defined herein), the
Prospectus, as it may then be amended or supplemented, will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and on said dates and at such times, the documents
then incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the
Prospectus, as it may then be amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (c) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement or
the Prospectus, as they may be amended or supplemented, or to any
statements in or omissions from the statement of eligibility, as
either may be amended, under the Trust Indenture Act, of the
Trustee under the Indenture.
(e) The issuance and sale of the Debentures and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is
now a party.
(f) Except as set forth or contemplated in the
Prospectus, the Company has obtained all material licenses,
permits, and other governmental or regulatory authorizations
currently required for the conduct of its business, and is in all
material respects complying therewith, and the Company is not
aware of any fact that would lead it to believe that any material
license, permit or other governmental or regulatory authorization
would not remain in effect or be renewed in its ordinary course
of business.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Debentures as soon after the
effectiveness of the Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Debentures will be offered to the public at the initial
public offering price specified in the Prospectus Supplement
[plus accrued interest thereon from ________ __, ____ to the
Closing Date].
SECTION 5. Time and Place of Closing. Delivery of the
Debentures and payment of the purchase price therefor by wire
transfer of, or check or checks payable in, New York Clearing
House Funds or similar next day funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on ________ __, ____, or at
such other time on the same or such other day as shall be agreed
upon by the Company and [Lead Underwriter], or as may be
established in accordance with Section 11 herein. The hour and
date of such delivery and payment are herein called the "Closing
Date".
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures available to the Underwriters for checking
not later than 2:30 P.M., New York Time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among you and the Company, or at such other time and/or date as
may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration Statement
relating to the Debentures as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Debentures, certified by an officer of the Company to be
in the form filed.
(b) The Company will deliver to you as many copies of
the Prospectus (and any amendments or supplements thereto) as the
Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are required
by law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Debentures, the Company will amend or
supplement the Prospectus by either (i) preparing and filing with
the Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in which
case the Underwriters shall assume the expense of preparing any
such amendment or supplement), the expenses of complying with
this Section 6(d) shall be borne by the Company until the
expiration of nine months from the initial effective date of the
Registration Statement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner so as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 promulgated under the Securities
Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debentures for offer and sale under the blue-sky laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all expenses and taxes (except transfer taxes) in connection with
(i) the preparation and filing of the Registration Statement,
(ii) the printing, issuance and delivery of the Debentures and
the preparation, execution, printing and recordation of the
Indenture or the Supplemental Indenture, (iii) legal fees and
expenses relating to the qualification of the Debentures under
the "blue sky" laws of various jurisdictions and the
determination of the eligibility of the Debentures for investment
under the laws of various jurisdictions, in an amount not to
exceed $_______, (iv) the printing and delivery to you of
reasonable quantities of copies of the Registration Statement,
the Preliminary (or any Supplemental) Blue Sky Survey and the
Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) fees
of the rating agencies in connection with the rating of the
Debentures, and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided above,
the Company shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement shall
be terminated in accordance with the provisions of Section 7, 8
or 12 hereof, the Company will reimburse the Underwriters for
(i) the reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree to
pay in any other event, and (ii) reasonable out-of-pocket
expenses, in an amount not exceeding in the aggregate $15,000,
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
(h) The Company will not sell any additional
debentures without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date or (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Debentures
shall be subject to the accuracy on the date hereof and on the Closing
Date of the representations and warranties made herein on the part of
the Company and of any certificates furnished by the Company on the
Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President or the
Treasurer of the Company, to the effect that no such stop order
has been or is in effect and that no proceedings for such purpose
are pending before, or to the knowledge of the Company threatened
by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Debentures, an
order of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Debentures and the execution of the
Indenture and the Supplemental Indenture on the terms set forth
in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from ____________________, Esq., _________________ of
Entergy Services, Inc. and Reid & Priest LLP opinions, dated the
Closing Date, substantially in the forms set forth in Exhibits A
and B hereto, respectively, (i) with such changes therein as may
be agreed upon by the Company and you with the approval of
Counsel for the Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to you for use in offering the
Debentures, with changes therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriter, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit C hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P. (the "Accountants"), a letter dated the
date hereof and addressed to you to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter, and accordingly that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, or for
changes or decreases as set forth in such letter, identifying the
same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company set forth in the Prospectus and specified in
Exhibit D hereto to the extent that such amounts, numbers,
percentages and information may be derived from the general
accounting records of the Company, and excluding any questions
requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries
and other appropriate procedures (which procedures do not
constitute an examination in accordance with generally accepted
auditing standards) set forth in the letter, and found them to be
in agreement.
[(g) One or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to you with respect to certain financial information
contained in the Prospectus, as mutually agreed to by the
Underwriters and the Company.]
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President or the Treasurer of the Company to
the effect that (A) the representations and warranties of the
Company contained herein are true and correct, (B) the Company
has performed and complied with all agreements and conditions in
this Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date, and (C) since the
most recent date as of which information is given in the
Prospectus, as it may be amended or supplemented, there has not
been any material adverse change in the business, property or
financial condition of the Company and there has not been any
material transaction entered into by the Company, other than
transactions in the ordinary course of business, in each case
other than as referred to in, or contemplated by, the Prospectus,
as it may be amended or supplemented.
(i) The Underwriters shall have received duly executed
counterparts of the Indenture and the Supplemental Indenture.
(j) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(k) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, or Entergy Corporation and its various
direct and indirect subsidiaries taken as a whole as it affects
the Company, which in the reasonable opinion of the Underwriters
materially impairs the investment quality of the Debentures.
(l) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of the Company's
[outstanding debentures] in any respect.
(m) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriter.
(n) The Company will furnish the Underwriters with
such additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
[(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date determined by the Company and approved by the
Underwriters.]
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(c) At the Closing Date there shall be in full force
and effect an order of the Commission under the 1935 Act
authorizing the issuance and sale of the Debentures on the terms
set forth in or contemplated by this Underwriting Agreement, the
Indenture, the Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to [Lead
Underwriter] [, provided that, in the case of paragraph (a)
above, the Company shall have used its best efforts to comply
with the requirements of Rule 424(b)]. Any such termination
shall be without liability of any party to the other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 9.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which constitutes the statement of
eligibility under the Trust Indenture Act of the Trustee; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
to the benefit of any person controlling any Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Debentures to
any person in respect of any Basic Prospectus or the Prospectus,
as supplemented or amended, furnished by any Underwriter to a
person to whom any of the Debentures were sold (excluding in both
cases, however, any document then incorporated or deemed
incorporated by reference therein), insofar as such indemnity
relates to any untrue or misleading statement or omission made in
the Basic Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or any
amendment or supplement thereto furnished pursuant to Section
6(d) hereof, respectively, unless a copy of the Prospectus (in
the case of such a statement or omission made in the Basic
Prospectus) or such amendment or supplement (in the case of such
a statement or omission made in the Prospectus) (excluding,
however, any amendment or supplement to the Basic Prospectus
relating to any debentures other than the Debentures and any
document then incorporated or deemed incorporated by reference in
the Prospectus or such amendment or supplement) is furnished by
such Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b)) or in the Prospectus, as amended or supplemented,
or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424) or the Prospectus, or
any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. An indemnifying party shall not, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened litigation, proceeding or claim in
respect of which indemnity has been properly sought by any
indemnified party or by any person controlling any indemnified
party hereunder, unless such settlement includes an unconditional
release of such indemnified party or such person controlling any
indemnified party from all liability with respect to claims which
are the subject matter of such litigation, proceeding or claim.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity has
or could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Debentures or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters
and such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Debentures
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9, and the
representations and warranties and other agreements of the
Company, contained in this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Debentures and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If either
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Debentures which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Debentures, the
other Underwriter shall be obligated to purchase the Debentures
which such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Debentures which any Underwriter has agreed to purchase pursuant
to Schedule I hereof be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such principal amount of
Debentures without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Debentures and the
aggregate principal amount of Debentures with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Debentures, the Company shall have the
right (a) to require the non-defaulting Underwriter to purchase
and pay for the respective principal amount of Debentures that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Debentures that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Debentures that such non-defaulting Underwriter had otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, members of the NASD (or, if not members of the NASD, who
are foreign banks, dealers or institutions not registered under
the Exchange Act and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Debentures that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriter shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter to purchase and pay for its
respective principal amount of Debentures, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriter, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement
may be terminated at any time prior to the Closing Date by
written notice from you if, prior to that time, (i) trading in
securities on the New York Stock Exchange shall have been
generally suspended, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock
Exchange by the New York Stock Exchange, the Commission or other
governmental authority, (iii) a general banking moratorium shall
have been declared by Federal or New York State authorities, or
(iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as
to make it, in the reasonable judgment of [Lead Underwriter],
impracticable to market the Debentures. Any termination hereof,
pursuant to this Section 12, shall be without liability of either
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement may be executed in any
number of separate counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of
which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Underwriter] at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel) or, if to the Company, shall be mailed or
delivered to it at 639 Loyola Avenue, New Orleans, Louisiana
70113.
Very truly yours,
LOUISIANA POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
Name:
Title:
<PAGE>
SCHEDULE I
Louisiana Power & Light Company
___% Debentures due ____
Name Amount
_____________
Total $____________
<PAGE>
EXHIBIT A
[Letterhead of Entergy Services, Inc.]
________ __, _____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
I, together with Reid & Priest, of New York, New York,
have acted as counsel for Louisiana Power & Light Company (the
"Company") in connection with the issuance and sale by it
pursuant to the Underwriting Agreement, effective ________ __,
____ (the "Underwriting Agreement"), between the Company and you,
of $________ in aggregate principal amount of its % Debentures
due ____ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company.
In my capacity as such counsel, I have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement; and (f) the proceedings before the
Commission under the 1935 Act relating to the issuance and sale
of the Debentures by the Company and the execution and delivery
by the Company of the Indenture and the Underwriting Agreement.
I have also examined or caused to be examined such other
documents and have satisfied myself as to such other matters as I
have deemed necessary in order to render this opinion. I have
not examined the Debentures, except a specimen thereof, and I
have relied upon a certificate of the Trustee as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, I am of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Louisiana, has due corporate power and authority to conduct
the business which it is described as conducting in the
Prospectus and to own and operate the properties owned and
operated by it in such business and is duly qualified to conduct
such business in the State of Louisiana.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
duly qualified under the Trust Indenture Act and no proceedings
to suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debt Securities" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Restated Articles of
Incorporation or By-laws, as amended, (b) will not violate or
conflict with any provision of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any of the assets of the
Company pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company is a party
or which purports to be binding upon the Company or upon any of
its respective assets, and (c) will not violate any provision of
any law or regulation applicable to the Company or, to the best
of my knowledge (having made due inquiry with respect thereto),
any provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction).
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which I do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which I do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and on the date
hereof is effective under the Securities Act, and, to the best of
my knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures and the execution, delivery and performance by
the Company of the Indenture and the Underwriting Agreement; to
the best of my knowledge, said order is in full force and effect;
no further approval, authorization, consent or other order of any
governmental body (other than under the Securities Act which has
been duly obtained or in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Debentures pursuant to the Underwriting
Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to
permit the performance by the Company of its obligations with
respect to the Debentures or under the Indenture and the
Underwriting Agreement.
(9) All recordings, registrations and filings of the
Indenture and all financing statements and other instruments
necessary to perfect and preserve the rights created thereunder
as against third parties or required for the validity thereof
have been made.
(10) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement and the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and I do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement which are not so
filed, or any contracts or other documents of the Company of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as
required; the descriptions in the Registration Statement and
Prospectus of statutes, legal and government proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or investigation
pending against or affecting the Company or any of its assets the
result of which would, in my opinion, have a materially adverse
effect on the issuance and sale of the Debentures in accordance
with the Underwriting Agreement.
In connection with the Registration Statement and the
Prospectus, I have had discussions with certain of the Company's
officers and representatives, with other counsel for the Company,
and with the independent certified public accountants of the
Company who examined certain of the financial statements
incorporated by reference in the Registration Statement. My
examination of the Registration Statement and the Prospectus and
my discussions did not disclose to me any information which gives
me reason to believe that the Registration Statement, at the
Effective Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, at the time first filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. I do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus, as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus Supplement
under the caption ["Description of the Debt Securities -- Book-
Entry System - Global Debt Securities."]
I have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on my authority, and I believe such information
to be correct. I am a member of the Louisiana Bar and do not
hold myself out as an expert on the laws of any other state. I
have examined the opinions of even date herewith rendered to you
by Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts, and
we concur in the conclusions expressed therein insofar as they
involve questions of Louisiana law. As to all matters of New
York law, I have relied upon the opinion of even date herewith
addressed to me of Reid & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without my prior written consent, except that Reid
& Priest LLP and Winthrop, Stimson, Putnam & Roberts may rely on
this opinion as to all matters of Louisiana law in rendering
their opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We, together with _____________________, Esq.,
_____________________ of Entergy Services, Inc., have acted as
counsel for Louisiana Power & Light Company (the "Company") in
connection with the issuance and sale by it pursuant to the
Underwriting Agreement, effective ________ __, ____ (the
"Underwriting Agreement"), between the Company and you, of
$________ in aggregate principal amount of its % Debentures due
____ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company, the execution
and delivery by the Company of the Indenture and the Underwriting
Agreement; and (f) the proceedings before the Commission under
the 1935 Act relating to the issuance and sale of the Debentures
by the Company, the execution and delivery by the Company of the
Indenture and the Underwriting Agreement. We have also examined
or caused to be examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to render this opinion. We have not examined the
Debentures, except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the authentication and delivery
thereof. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in the Underwriting
Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights,
and has been duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debt Securities" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Louisiana, has due corporate power and authority to conduct
the business which it is described as conducting in the
Prospectus and to own and operate the properties owned and
operated by it in such business and is duly qualified to conduct
such business in the State of Louisiana.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which we do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is on the
date hereof effective under the Securities Act and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of said
Securities Act.
(7) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement; to the
best of our knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of any
governmental body (other than under the Securities Act which has
been duly obtained or in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Debentures pursuant to the Underwriting
Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to
permit the performance by the Company of its obligations with
respect to the Debentures or under the Indenture and the
Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 2 above. In connection with
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus, as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus Supplement
under the caption ["Description of Debt Securities -- Book-Entry
System -- Global Debt Securities."]
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. Accordingly, as to matters of Louisiana law related to
the Company, we have, with your consent, relied upon the opinion
of even date herewith of __________________, Esq.,
__________________ of Entergy Services, Inc., which has been
delivered to you pursuant to the Underwriting Agreement.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that
_________________________, Esq., __________________ of Entergy
Services, Inc., may rely on this opinion as to matters of New
York law in rendering their opinion related to the Company
required to be delivered under the Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $_________ in aggregate principal amount of the
% Debentures due ____ (the "Debentures"), issued by Louisiana
Power & Light Company (the "Company") under a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"), pursuant to the
agreement between you and the Company effective ________ __, ____
(the "Underwriting Agreement").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon an opinion of even date herewith addressed
to you of ______________________, Esq., ____________________ of
Entergy Services, Inc., as to all matters of Louisiana law,
respectively, related to this opinion. We have reviewed said
opinion and believe that it is satisfactory. We have also
reviewed the opinion of Reid & Priest LLP required by Section
7(d) of the Underwriting Agreement, and we believe said opinion
to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to enable us to render this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company and
statements in the Registration Statement hereinafter mentioned.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of the documents
submitted to us as certified or photostatic copies, and the
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the
Debentures except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the due authentication and
delivery thereof. We have not examined into, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the
Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debt Securities" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the parties thereto.
(5) An appropriate order has been entered by the
Commission under the 1935 Act granting the application, as
amended, with respect to the Debentures and to the best of our
knowledge such order is in full force and effect.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which we do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8 of the
Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (2) hereof. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we had conferences with certain officers and
representatives of the Company and of its affiliates, with
counsel for the Company, with the independent certified public
accountants of the Company who examined the financial statements
incorporated by reference in the Registration Statement, and with
your representatives. Our examination of the Registration
Statement and the Prospectus, and our discussions in the above-
mentioned conferences, did not disclose to us any information
which gives us reason to believe that the Registration Statement,
at the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or Prospectus, as to the statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption ["Description of Debt Securities --
Book-Entry System -- Global Debt Securities."]
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT D
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
Exhibit B-12
R e f u n d i n g A g r e e m e n t
between
_______________ Parish,
State of Louisiana
and
Louisiana Power & Light Company
Dated as of _______________
$_______________
_______________ Parish, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Louisiana Power & Light Company Project)
_______________
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of _______________ by and
between the _______________ Parish, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and Louisiana Power & Light Company, a corporation duly organized
and existing under the laws of the State of Louisiana 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 _______________, by and between the Issuer and
_______________, a national banking association duly organized
and existing under the laws of the _______________, as trustee
(collectively, the "Prior Indenture"), the Issuer issued its
Pollution Control Revenue Bonds (Louisiana Power & Light Company
Project) Series _______________, (the "Prior Bonds") in the
aggregate principal amount of $_______________ for the purpose of
providing funds to finance the cost of acquiring certain solid
waste disposal, sewerage, air pollution control and/or water
pollution control facilities (the "Facilities") at the plant in
_______________ Parish, 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,
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 (Louisiana Power & Light 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 Louisiana Power & Light Company, a Louisiana
corporation, and its permitted successors and assigns.
"Company Mortgage" means the Company's Mortgage and Deed of
Trust dated as of April 1, 1944, made to The Chase National Bank
in the City of New York and Carl E. Buckley, as trustee, as
heretofore and hereafter amended and supplemented.
"Company Mortgage Trustee" means the trustee under the
Company Mortgage.
"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 _____ interest in certain
solid waste disposal, sewerage, air pollution control and/or
water pollution control facilities financed with the proceeds of
the Prior Bonds at the Company's _______________ plant in
_______________ Parish, 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 September
1, 1994 between the Issuer and the Trustee securing the Bonds,
and any amendments and supplements thereto.
"Issuer" means the _______________ Parish, State of
Louisiana, a political subdivision of the State of Louisiana.
"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 (Louisiana Power & Light Company Project) Series
_______________ issued and outstanding in the aggregate principal
amount of $_______________.
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of _______________, as amended and supplemented by a
Supplement No. 1 to Indenture of Trust and Pledge, between the
Issuer and _______________, in the City of _______________,
Louisiana.
"Refunding Date" means ___________, 1995, [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 Louisiana,
is not in violation of any provision of its Restated
Articles of Incorporation, as amended, 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 $102,000,000. 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 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
Louisiana, 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.
<PAGE>
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: Louisiana Power & Light Company
c/o Entergy Services, Inc.
Poydras Plaza, 639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: _______________ Parish
_______________
_______________
_______________
Attention: Secretary, Police Jury
Trustee: _______________
_______________
_______________
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 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.
<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,
STATE OF LOUISIANA
By: _________________________________
President, Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary, Police Jury
LOUISIANA POWER & LIGHT COMPANY
By: _________________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
Exhibit F-1
New Orleans, Louisiana
August 21, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Referring to the Application-Declaration on Form U-1,
as amended (File No. 70-8487) (hereinafter referred to as
the "Application-Declaration"), filed with the Securities
and Exchange Commission under the Public Utility Holding
Company Act of 1935, as amended, by Louisiana Power & Light
Company ("Company") contemplating, among other things, (A)
the issuance and sale by the Company of its first mortgage
bonds ("Bonds") under a Mortgage and Deed of Trust,
including one or more Supplemental Indentures thereto under
which the Bonds are to be issued, in an aggregate principal
amount not to exceed (together with the amounts of certain
other securities described in the Application-Declaration)
$610,000,000, and/or (B) the entering into arrangements for
the issuance and sale of tax-exempt revenue bonds ("Tax-
Exempt Bonds") in an aggregate principal amount not to
exceed $65,000,000, including the possible issuance and
pledge of one or more new series of the Company's first
mortgage bonds ("Collateral Bonds") in an aggregate
principal amount not to exceed $75,000,000 as security for
the Tax-Exempt Bonds, and/or (C) the proposed acquisition
by the Company of all or a portion of certain series of the
Company's outstanding First Mortgage Bonds and Preferred
Stock and certain series of outstanding Pollution Control
Revenue Bonds and Industrial Development Revenue Bonds
issued for the Company's benefit ("Outstanding
Securities"), all as more fully described in said
Application-Declaration, we advise as follows:
1. The Company is a corporation validly organized and
existing under the laws of the State of Louisiana.
2. All action necessary to make valid the participation
by the Company in the proposed transactions described in
(A), (B) and (C) above will have been taken when:
(a) the Application-Declaration shall have been granted
and permitted to become effective in accordance with the
applicable provisions of the Public Utility Holding Company
Act of 1935, as amended;
(b) appropriate final action shall have been taken by the
Board of Directors and/or an Authorized Officer of the
Company with respect to the proposed transactions;
(c) the Supplemental Indentures and each of the other
agreements referred to in the Application-Declaration
related to said proposed transactions shall have been duly
executed and delivered by each of the proposed parties
thereto; and
(d) the Bonds and/or Tax-Exempt Bonds shall have been
appropriately issued and delivered for the consideration
contemplated.
3. When the foregoing steps shall have been taken and in
the event said proposed transactions are otherwise
consummated (i) in accordance with the Application-
Declaration and the related order or orders of the
Commission, (ii) within the limits specified in the
Company's Mortgage and Deed of Trust, as supplemented and
as proposed to be further supplemented, and the Company's
Restated Articles of Incorporation, as amended and as
proposed to be further amended and (iii) in accordance with
appropriate resolutions of the Board of Directors:
(a) all state laws which relate or are applicable to the
participation by the Company in the proposed transactions
described in (A), (B) and (C) above (other than so-called
"blue-sky" laws or similar laws, upon which we do not pass
herein) will have been complied with;
(b) the Bonds and/or the Collateral Bonds will be valid
and binding obligations of the Company in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights;
(c) the Company will have legally acquired any Outstanding
Securities being acquired; and
(d) the consummation of the proposed transactions by the
Company will not violate the legal rights of the holders of
any securities issued by the Company or any associate
company thereof.
I am a member of the Louisiana Bar and do not hold
myself out as an expert on the law of any other state.
I hereby consent to the reliance by Reid & Priest LLP
on this opinion in rendering their opinion to you of even
date herewith and to the use of this opinion as an exhibit
to the Application-Declaration.
Very truly yours,
/s/ Denise C. Redmann
Denise C. Redmann
Senior Attorney - Corporate
and Securities
Entergy Services, Inc.
Exhibit F-3
New York, New York
August 21, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Referring to the Application-Declaration on Form U-1,
as amended (File No. 70-8487) (hereinafter referred to as
the "Application-Declaration"), filed with the Securities
and Exchange Commission under the Public Utility Holding
Company Act of 1935, as amended, by Louisiana Power & Light
Company ("Company") contemplating, among other things, (A)
the issuance and sale by the Company of its first mortgage
bonds ("Bonds") under a Mortgage and Deed of Trust,
including one or more Supplemental Indentures thereto under
which the Bonds are to be issued, in an aggregate principal
amount not to exceed (together with the amounts of certain
other securities described in the Application-Declaration)
$610,000,000, and/or (B) the entering into arrangements for
the issuance and sale of tax-exempt revenue bonds ("Tax-
Exempt Bonds") in an aggregate principal amount not to
exceed $65,000,000, including the possible issuance and
pledge of one or more new series of the Company's first
mortgage bonds ("Collateral Bonds") in an aggregate
principal amount not to exceed $75,000,000 as security for
the Tax-Exempt Bonds, and/or (C) the proposed acquisition
by the Company of all or a portion of certain series of the
Company's outstanding First Mortgage Bonds and Preferred
Stock and certain series of outstanding Pollution Control
Revenue Bonds and Industrial Development Revenue Bonds
issued for the Company's benefit ("Outstanding
Securities"), all as more fully described in said
Application-Declaration, we advise as follows:
1. The Company is a corporation validly organized and
existing under the laws of the State of Louisiana.
2. All action necessary to make valid the participation
by the Company in the proposed transactions described in
(A), (B) and (C) above will have been taken when:
(a) the Application-Declaration shall have been granted
and permitted to become effective in accordance with the
applicable provisions of the Public Utility Holding Company
Act of 1935, as amended;
(b) appropriate final action shall have been taken by the
Board of Directors and/or an Authorized Officer of the
Company with respect to the proposed transactions;
(c) the Supplemental Indentures and each of the other
agreements referred to in the Application-Declaration
related to said proposed transactions shall have been duly
executed and delivered by each of the proposed parties
thereto; and
(d) the Bonds and/or Tax-Exempt Bonds shall have been
appropriately issued and delivered for the consideration
contemplated.
3. When the foregoing steps shall have been taken and in
the event said proposed transactions are otherwise
consummated (i) in accordance with the Application-
Declaration and the related order or orders of the
Commission, (ii) within the limits specified in the
Company's Mortgage and Deed of Trust, as supplemented and
as proposed to be further supplemented, and the Company's
Restated Articles of Incorporation, as amended and as
proposed to be further amended and (iii) in accordance with
appropriate resolutions of the Board of Directors:
(a) all state laws which relate or are applicable to the
participation by the Company in the proposed transactions
described in (A), (B) and (C) above (other than so-called
"blue-sky" laws or similar laws, upon which we do not pass
herein) will have been complied with;
(b) the Bonds and/or the Collateral Bonds will be valid
and binding obligations of the Company in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights;
(c) the Company will have legally acquired any Outstanding
Securities being acquired; and
(d) the consummation of the proposed transactions by the
Company will not violate the legal rights of the holders of
any securities issued by the Company or any associate
company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state.
In giving this opinion, we have relied, as to all matters
governed by the laws of the State of Louisiana, upon an
opinion of even date herewith addressed to you by Laurence
M. Hamric, General Attorney - Corporate and Securities of
Entergy Services, Inc. or Denise C. Redmann, Senior
Attorney, Corporate and Securities of Entergy Services,
Inc., which is to be filed as an exhibit to the Application-
Declaration.
We hereby consent to the use of this opinion as an
exhibit to the Application-Declaration.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
