[FORM OF INDENTURE]
NORAM ENERGY CORP.
AND
___________________,
Trustee
______________________________________
INDENTURE
Dated as of ________, 1995
_______________________________________
Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) . . . . . . . . . . . . . . . . . . . 7.9
310(b) . . . . . . . . . . . . . . . . . . . 7.8
7.10
310(c) . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . 7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . 7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . 5.1
5.2(a)
312(b) . . . . . . . . . . . . . . . . . . . 5.2(b)
312(c) . . . . . . . . . . . . . . . . . . . 5.2(c)
313(a) . . . . . . . . . . . . . . . . . . . 5.4(a)
313(b) . . . . . . . . . . . . . . . . . . . 5.4(b)
313(c) . . . . . . . . . . . . . . . . . . . 5.4(a)
5.4(b)
313(d) . . . . . . . . . . . . . . . . . . . 5.4(c)
314(a) . . . . . . . . . . . . . . . . . . . 5.3
314(b) . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . 13.6
314(d) . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . 13.6
314(f) . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . 7.1(a)
7.2
315(b) . . . . . . . . . . . . . . . . . . . 6.7
315(c) . . . . . . . . . . . . . . . . . . . 7.1
315(d) . . . . . . . . . . . . . . . . . . . 7.1(b)
315(e) . . . . . . . . . . . . . . . . . . . 7.1(c)
6.7
316(a) . . . . . . . . . . . . . . . . . . . 6.6
8.4
316(b) . . . . . . . . . . . . . . . . . . . 6.4
316(c) . . . . . . . . . . . . . . . . . . . 8.1
317(a) . . . . . . . . . . . . . . . . . . . 6.2
317(b) . . . . . . . . . . . . . . . . . . . 4.3
318(a) . . . . . . . . . . . . . . . . . . . 13.8
* This Cross-Reference Table does not constitute part
of the Indenture and shall not have any bearing on
the interpretation of any of its terms or provi-
sions.
TABLE OF CONTENTS*
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions of Terms . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . 3
Debt Securities . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . 4
Governmental Obligations . . . . . . . . . . . . . . . . 4
herein . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
Institutional Trustee . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 5
NorAm Common Stock . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . . . . 6
Preferred Securities Guarantee . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . 7
Securityholder . . . . . . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . 7
* This Table of Contents does not constitute part of
the Indenture and shall not have any bearing upon
the interpretation of any of its terms or provi-
sions.
i
Page
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . 8
Trust Securities . . . . . . . . . . . . . . . . . . . . 8
Voting Stock . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.1. Designation and Terms of Securities . . . 9
SECTION 2.2. Form of Securities and Trustee's Certif-
icate . . . . . . . . . . . . . . . . . . 11
SECTION 2.3. Denominations: Provisions for Payment . . 11
SECTION 2.4. Execution and Authentications. . . . . . 13
SECTION 2.5. Registration of Transfer and Exchange . . 14
SECTION 2.6. Temporary Securities . . . . . . . . . . 16
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Securities . . . . . . . . . . . . . . . 16
SECTION 2.8. Cancellation . . . . . . . . . . . . . . 17
SECTION 2.9. Benefit of Indenture. . . . . . . . . . . 18
SECTION 2.10. Authenticating Agent . . . . . . . . . . 18
SECTION 2.11. Global Securities . . . . . . . . . . . . 19
ARTICLE III.
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption . . . . . . . . . . . . . . . 20
SECTION 3.2. Notice of Redemption . . . . . . . . . . 21
SECTION 3.3. Payment Upon Redemption . . . . . . . . . 22
SECTION 3.4. Sinking Fund . . . . . . . . . . . . . . 23
SECTION 3.5. Satisfaction of Sinking Fund Payments
with Debt Securities . . . . . . . . . . 23
SECTION 3.6. Redemption of Debt Securities for Sink-
ing Fund . . . . . . . . . . . . . . . . 24
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
ii
Page
SECTION 4.1. Payment of Principal, Premium and Inter-
est . . . . . . . . . . . . . . . . . . . 24
SECTION 4.2. Maintenance or Agency . . . . . . . . . . 24
SECTION 4.3. Paying Agents . . . . . . . . . . . . . . 25
SECTION 4.4. Appointment to Fill Vacancy in Office of
Trustee . . . . . . . . . . . . . . . . . 26
SECTION 4.5. Compliance with Consolidation Provis-
ions . . . . . . . . . . . . . . . . . . 26
SECTION 4.6. Limitation on Dividends; Transactions
with Affiliates . . . . . . . . . . . . . 27
SECTION 4.7. Covenants as to NorAm Trusts . . . . . . 27
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and
Addresses of Securityholders . . . . 28
SECTION 5.2. Preservation Of Informat Communications
With Securityholders . . . . . . . . . . 28
SECTION 5.3. Reports by the Company . . . . . . . . . 29
SECTION 5.4. Reports by the Trustee . . . . . . . . . 29
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default . . . . . . . . . . . . 30
SECTION 6.2. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 33
SECTION 6.3. Application of Moneys Collected . . . . . 35
SECTION 6.4. Limitation on Suits . . . . . . . . . . . 35
SECTION 6.5. Rights and Remedies Cumulative; Delay or
Omission Not Waiver . . . . . . . . . . . 36
SECTION 6.6. Control by Securityholders . . . . . . . 37
SECTION 6.7. Undertaking to Pay Costs . . . . . . . . 38
ARTICLE VII.
CONCERNING THE TRUSTEE
iii
Page
SECTION 7.1. Certain Duties and Responsibilities of
Trustee . . . . . . . . . . . . . . . . . 38
SECTION 7.2. Certain Rights of Trustee . . . . . . . . 40
SECTION 7.3. Trustee Not Responsible for Recitals or
Issuance or Securities . . . . . . . . . 42
SECTION 7.4. May Hold Securities . . . . . . . . . . . 42
SECTION 7.5. Moneys Held in Trust . . . . . . . . . . 42
SECTION 7.6. Compensation and Reimbursement . . . . . 42
SECTION 7.7. Reliance on Officers' Certificate . . . . 43
SECTION 7.8. Disqualification: Conflicting Interests . 43
SECTION 7.9. Corporate Trustee Required; Eligibility . 44
SECTION 7.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 44
SECTION 7.11. Acceptance of Appointment By Successor . 46
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 48
SECTION 7.13. Preferential Collection of Claims
Against the Company . . . . . . . . . . . 48
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders . . 48
SECTION 8.2. Proof of Execution by Securityholders . . 49
SECTION 8.3. Who May be Deemed Owners . . . . . . . . 50
SECTION 8.4. Certain Securities Owned by Company
Disregarded . . . . . . . . . . . . . . . 50
SECTION 8.5. Actions Binding on Future
Securityholders . . . . . . . . . . 51
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the
Consent of Securityholders . . . . . 51
SECTION 9.2. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . 52
SECTION 9.3. Effect of Supplemental Indentures . . . . 53
SECTION 9.4. Securities Affected by Supplemental In-
dentures . . . . . . . . . . . . . . . . 54
SECTION 9.5. Execution of Supplemental Indentures . . 54
iv
Page
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc. . . . . . . 55
SECTION 10.2. Successor Corporation Substituted . . . . 55
SECTION 10.3. Evidence of Consolidation, Etc. to Trus-
tee . . . . . . . . . . . . . . . . . . . 56
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture . 56
SECTION 11.2. Discharge of Obligations . . . . . . . . 57
SECTION 11.3. Deposited Moneys to be Held in Trust . . 58
SECTION 11.4. Payment of Moneys Held by Paying Agents . 58
SECTION 11.5. Repayment to Company . . . . . . . . . . 58
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.1. No Recourse . . . . . . . . . . . . . . . 59
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Effect on Successors and Assigns . . . . 59
SECTION 13.2. Actions by Successor . . . . . . . . . . 60
SECTION 13.3. Surrender of Company Powers . . . . . . . 60
SECTION 13.4. Notices . . . . . . . . . . . . . . . . . 60
SECTION 13.5. Governing Law . . . . . . . . . . . . . . 60
SECTION 13.6. Treatment of Debt Securities as Debt . . 60
SECTION 13.7. Compliance Certificates and Opinions . . 61
SECTION 13.8. Payments on Business Days . . . . . . . . 61
SECTION 13.9. Conflict with Trust Indenture Act . . . . 61
SECTION 13.10. Counterparts . . . . . . . . . . . . . . 62
SECTION 13.11. Separability . . . . . . . . . . . . . . 62
v
Page
SECTION 13.12. Assignment . . . . . . . . . . . . . . . 62
SECTION 13.13. Acknowledgement of Rights . . . . . . . 62
ARTICLE XIV.
SUBORDINATION OF SECURITIES
SECTION 14.1. Agreement to Subordinate . . . . . . . . 63
SECTION 14.2. Default on Senior Indebtedness . . . . . 63
SECTION 14.3. Liquidation; Dissolution; Bankruptcy . . 64
SECTION 14.4. Subrogation . . . . . . . . . . . . . . . 65
SECTION 14.5. Trustee to Effectuate Subordination . . . 67
SECTION 14.6. Notice by the Company . . . . . . . . . . 67
SECTION 14.7. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . 68
SECTION 14.8. Subordination May Not Be Impaired . . . . 69
vi
INDENTURE, dated as of ____________________ , 1995, among
NorAm Energy Corp., a Delaware corporation (the "Company") and
________________, a national banking association, as trustee (the
"Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this Indenture
to provide for the issuance of unsecured subordinated debt secu-
rities (hereinafter referred to as the "Debt Securities"), in an
unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as
registered Debt Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Debt Securities are to be authenticated, issued and deliv-
ered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms,
have been done.
NOW, THEREFORE, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions of Terms.
The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section and shall include the plural as well as
the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that
are by reference in such Act defined in the Securities Act of
1933, as amended (except as herein otherwise expressly provided
or unless the context otherwise requires), shall have the mean-
ings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of the execution of
this instrument.
"Affiliate" means, with respect to a specified Person,
(a) any Person directly or indirectly owning, controlling or
holding with power to vote 10% or more of the outstanding voting
securities or other ownership interests of the specified Person,
(b) any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person,
(c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person, (d) a partner-
ship in which the specified Person is a general partner, (e) any
officer or director of the specified Person, and (f) if the
specified Person is an individual, any entity of which the speci-
fied Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent
with respect to all or any of the series of Securities appointed
with respect to all or any series of the Securities by the
Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of
the Company or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certi-
fied 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.
"Business Day" means, with respect to any series of
Securities, any day other than a day on which Federal or State
banking institutions in the Borough of Manhattan, The City of New
York, are authorized or obligated by law, executive order or
regulation to close.
"Certificate" means a certificate signed by the princi-
pal executive officer, the principal financial officer or the
principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.6.
2
"Common Securities" means undivided beneficial inter-
ests in the assets of a NorAm Trust which rank pari passu with
Preferred Securities issued by such NorAm Trust; provided,
however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred
Securities.
"Common Securities Guarantee" means any guarantee that
the Company may enter into with The Bank of New York or other
Persons that operate directly or indirectly for the benefit of
holders of Common Securities of such NorAm Trust.
"Company" means NorAm Energy Corp., a corporation duly
organized and existing under the laws of the State of _________,
and, subject to the provisions of Article Ten, shall also include
its successors and assigns.
"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 hereof is located at ______________________________________,
Attention: _____________________, except that whenever a provi-
sion herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is
located, at the date hereof, at ________________________________.
"Custodian" means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Declaration", with respect to a NorAm Trust, means the
Amended and Restated Declaration of Trust, dated _______________,
of such NorAm Trust.
"Debt Securities" means the Debt Securities authen-
ticated and delivered under this Indenture.
"Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of
Default.
"Depositary" means, with respect to Securities of any
series, for which the Company shall determine that such Securi-
ties will be issued as a Global Security, The Depository Trust
3
Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.1
or 2.11.
"Event of Default" means, with respect to Securities of
a particular series, any event specified in Section 6.1, con-
tinued for the period of time, if any, therein designated.
"Global Security" means, with respect to any series of
Securities, a Security executed by the Company and delivered by
the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.
"Governmental Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custo-
dian for the account of the holder of such depositary receipt;
provided, however, that (except as required by law) such custo-
dian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental Obliga-
tion or the specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary receipt.
"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.
"Indenture" means this instrument as originally exe-
cuted or as it may from time to time be supplemented or amended
4
by one or more indentures supplemental hereto entered into in
accordance with the terms hereof.
"Institutional Trustee" has the meaning set forth in
the Declaration of the applicable NorAm Trust.
"Interest Payment Date", when used with respect to any
installment of interest on a Debt Security of a particular
series, means the date specified in such Debt Security or in a
Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment
of interest with respect to Debt Securities of that series is due
and payable.
"NorAm Common Stock" means the Common Stock, par value
$.____ per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value. Subject to the
anti-dilution provisions of any convertible Debt Security,
however, shares of NorAm Common Stock issuable on conversion of a
Security shall include only shares of the class designated as
Common Stock of the Company at the date of the supplemental
indenture, Board Resolution or other instrument authorizing such
Debt Security or shares of any class or classes resulting form
any reclassification or reclassifications thereof and which have
no preference in respect of the payment of dividends or the
distribution of assets upon any voluntary or involuntary liquida-
tion, dissolution or winding-up of the Company and which are not
subject to redemption by the Company, provided that if at any
time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially
in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total
number of shares of such classes resulting from all such reclas-
sifications.
"NorAm Trust" means each of NorAm Financing I and NorAm
Financing II, each, a Delaware business trust or any other
similar trust created for the purpose of issuing preferred
securities in connection with the issuance of Securities under
this Indenture.
"Officers' Certificate" means a certificate signed by
the President or a Vice President and by the Treasurer or an
5
Assistant Treasurer or the Controller or an Assistant Controller
or the Secretary or an Assistant Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for
in Section 13.6, if and to the extent required by the provisions
thereof.
"Opinion of Counsel" means an opinion in writing of
legal counsel, who may be an employee of or counsel for the
Company that is delivered to the Trustee in accordance with the
terms hereof. Each such opinion shall include the statements
provided for in Section 13.6, if and to the extent required by
the provisions thereof.
"Outstanding", when used with reference to Debt Securi-
ties of any series, means, subject to the provisions of Section
8.4, as of any particular time, all Debt Securities of that
series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debt Securities theretofore
cancelled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previ-
ously been cancelled; (b) Debt Securities or portions thereof for
the payment or redemption of which moneys or Governmental Obliga-
tions in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Compa-
ny) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent);
provided, however, that if such Debt Securities or portions of
such Debt Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Debt Securi-
ties in lieu of or in substitution for which other Debt Securi-
ties shall have been authenticated and delivered pursuant to the
terms of Section 2.7.
"Person" means any individual, corporation, partner-
ship, joint-venture, joint-stock company, unincorporated organiz-
ation or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt and as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and
6
delivered under Section 2.7 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Preferred Securities" means undivided beneficial
interests in the assets of a NorAm Trust which rank pari passu
with Common Securities issued by such NorAm Trust; provided,
however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred
Securities.
"Preferred Securities Guarantee" means any guarantee
that the Company may enter into with The Bank of New York or
other Persons that operate directly or indirectly for the benefit
of holders of Preferred Securities of such NorAm Trust.
"Responsible Officer" when used with respect to the
Trustee means the Chairman of the Board of Directors, the Presi-
dent, any Vice President, the Secretary, the Treasurer, any trust
officer, any corporate trust officer or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and famil-
iarity with the particular subject.
"Securities" means any Debt Securities.
"Securityholder", "holder of Securities", "registered
holder", or other similar term, means the Person or Persons in
whose name or names a particular Security shall be registered on
the books of the Company kept for that purpose in accordance with
the terms of this Indenture.
"Senior Indebtedness" means, with respect to the
Company, (i) the principal, premium, if any, and interest in
respect of (A) indebtedness of such obligor for money borrowed
and (B) indebtedness evidenced by securities, debentures, bonds
or other similar instruments issued by such obligor; (ii) all
capital lease obligations of such obligor; (iii) all obligations
of such obligor issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention agree-
7
ment (but excluding trade accounts payable arising in the ordi-
nary course of business); (iv) all obligations of such obligor
for the reimbursement on any letter of credit, banker's accep-
tance, security purchase facility or similar credit transaction;
(v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons for the payment of which such
obligor is responsible or liable as obligor, guarantor or other-
wise; and (vi) all obligations of the type referred to in clauses
(i) through (v) of other Persons secured by any lien on any
property or asset of such obligor (whether or not such obligation
is assumed by such obligor), except for (1) any such indebtedness
that is by its terms subordinated to or pari passu with the
Securities, and (2) any indebtedness between or among such obli-
gor and its Affiliates, including all other debt securities and
guarantees in respect of those debt securities, issued to (x) any
NorAm Trust or (y) any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company which is
a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of pre-
ferred securities.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries, (ii) any general partner-
ship, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the
time be owned by such Person, or by one or more of its Subsidiar-
ies, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner.
"Trustee" means _________________________________, and,
subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more
than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person. The term "Trustee" as used with
respect to a particular series of the Securities shall mean the
trustee with respect to that series.
"Trust Indenture Act", means the Trust Indenture,
subject to the provisions of Sections 9.1, 9.2, and 10.1, as in
effect at the date of execution of this instrument.
8
"Trust Securities" means Common Securities and Pre-
ferred Securities.
"Voting Stock", as applied to stock of any Person,
means shares, interests, participations or other equivalents in
the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the
directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.1. Designation and Terms of Securities.
(a) The aggregate principal amount of Debt Securities
that may be authenticated and delivered under this Indenture is
unlimited. The Debt Securities may be issued in one or more
series up to the aggregate principal amount of Debt Securities of
that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of
Debt Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in
an Officers, Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Debt Security of the series
(which shall distinguish the Debt Securities of the series
from all other Debt Securities);
(2) any limit upon the aggregate principal amount of
the Debt Securities of that series that may be authenticated
and delivered under this Indenture (except for Debt Securi-
ties authenticated and delivered upon registration of trans-
fer of, or in exchange for, or in lieu of, other Debt Secu-
rities of that series);
(3) the date or dates on which the principal of the
Debt Securities of the series is payable;
9
(4) the rate or rates at which the Debt Securities of
the series shall bear interest or the manner of calculation
of such rate or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such
Interest Payment Dates and the record date for the deter-
mination of holders to whom interest is payable on any such
Interest Payment Dates;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which,
Debt Securities of the series may be redeemed, in whole or
in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Debt Securities of the series pursuant to any
sinking fund or analogous provisions (including payments
made in cash in participation of future sinking fund obliga-
tions) or at the option of a holder thereof and the period
or periods within which, the price or prices at which, and
the terms and conditions upon which, Debt Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the form of the Debt Securities of the series
including the form of the Certificate of Authentication for
such series;
(10) if other than denominations of twenty-five U.S.
dollars ($25) or any integral multiple thereof, the denomi-
nations in which the Debt Securities of the series shall be
issuable;
(11) any and all other terms with respect to such
series (which terms shall not be inconsistent with the terms
of this Indenture) including any terms which may be required
by or advisable under United States laws or regulations or
advisable in connection with the marketing of Debt Securi-
ties of that series;
10
(12) whether the Debt Securities are issuable as a
Global Security and, in such case, the identity for the
Depositary for such series; and
(13) the terms and conditions, if any, upon which such
Debt Securities may be convertible into or exchangeable into
NorAm Common Stock or other securities of any kind, includ-
ing the initial conversion or exchange price or rate, the
conversion or exchange period, the circumstances under which
any such conversion or exchange right may expire, and any
other provision in addition to or in lieu of those set forth
in this Indenture.
All Debt Securities of any one series shall be substan-
tially identical except as to denomination and except as may
otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of
the series.
SECTION 2.2. Form of Securities and Trustee's Certif-
icate.
The Securities of any series and the Trustee's certi-
ficate of authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or
more indentures supplemental hereto or as provided in a Board
Resolution of the Company and as set forth in an Officers'
Certificate of the Company, and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to usage.
SECTION 2.3. Denominations: Provisions for Payment.
11
The Securities shall be issuable as registered Secur-
ities and in the denominations of twenty-five U.S. dollars ($25)
or any integral multiple thereof, subject to Section 2.1(10). The
Securities of a particular series shall bear interest payable on
the dates and at the rate specified with respect to that series.
The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall
be dated the date of its authentication. Interest on the Securi-
ties shall be computed on the basis of a 360-day year composed of
twelve 30-day months.
The interest installment on any Security that is pay-
able, and is punctually paid or duly provided for, on any Inter-
est Payment Date for Securities of that series shall be paid to
the Person in whose name said Security (or one or more Prede-
cessor Securities) is registered at the close of business on the
regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and
prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as
provided in Section 3.3.
Any interest on any Security that is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date for Security of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on 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
12
proposed to be paid on each such Security 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 De-
faulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall not be more than 15 nor
less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and,
in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her
address as it appears in the Security Register (as hereinaf-
ter defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such De-
faulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such
special record date and shall be no longer payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities ex-
change 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 Trustees of the proposed payment
pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the
Company or one or more indentures supplemental hereto establish-
ing the terms of any series of Securities pursuant to Section 2.1
hereof, the term "regular record date" as used in this Section
with respect to a series of Securities with respect to any Inter-
est Payment Date for such series shall mean either the fifteenth
day of the month immediately preceding the month in which an
13
Interest Payment Date established for such series pursuant to
Section 2.1 hereof shall occur, if such Interest Payment Date is
the first day of a month, or the last day of the month immediate-
ly preceding the month in which an Interest Payment Date estab-
lished for such series pursuant to Section 2.1 hereof shall
occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
SECTION 2.4. Execution and Authentications.
The Debt Securities shall be signed on behalf of the
Company by its President or one of its Vice Presidents, under its
corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature
of any Person who shall have been a President or Vice President
thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the
time the Securities shall be authenticated and delivered or
disposed of such Person shall have ceased to be the President or
a Vice President, or the Secretary or an Assistant Secretary, of
the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted
or otherwise reproduced on the Securities. The Securities may
contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the
date of its authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an
Authenticating Agent. Such signature shall be conclusive evi-
dence that the Security so authenticated has been duly authenti-
cated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Secur-
ities of any series executed by the Company to the Trustee for
authentication, together with a written order of the Company for
14
the authentication and delivery of such Securities, signed by its
President or any Vice President and its Treasurer or any Xxxxx-
xxxx Treasurer, and the Trustee in accordance with such written
order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions
of this Indenture.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immuni-
ties under the Securities and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.
SECTION 2.5. Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, the City
and State of New York, for other Securities of such series of
authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenti-
cate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Security-
holder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose in the Borough
of Manhattan, the City and State of New York, or such other
location designated by the Company a register or registers
(herein referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as
in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the
purpose of registering Securities and transfer of Securities as
15
herein provided shall be appointed as authorized by Board Resolu-
tion (the "Security Registrar").
Upon surrender for transfer of any Security at the
office or agency of the Company designated for such purpose, the
Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or
transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly autho-
rized attorney in writing.
(c) No service charge shall be made for any exchange
or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.6, the second paragraph of
Section 3.3 and Section 9.4 not involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Securities during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the
Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this Section
2.5 are, with respect to any Global Security, subject to Section
2.11 hereof.
SECTION 2.6. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and the Trustee shall authenti-
cate and deliver, temporary Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary
Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such
16
omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same condi-
tions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the
Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee shall authenti-
cate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of
definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company.
Until so exchanged, the temporary Securities of such series shall
be entitled to the same benefits under this Indenture as defini-
tive Securities of such series authenticated and delivered
hereunder.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Securities.
In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
the Company's request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satis-
faction of the destruction, loss or theft of the applicant's
Security and of the ownership thereof. The Trustee may authenti-
cate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company.
Upon the issuance of any substituted Security, 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
17
any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every replacement Security issued pursuant to the
provisions of this Section shall constitute an additional con-
tractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or
be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities of the same series duly issued hereun-
der. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.8. Cancellation.
All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to
the Trustee for cancellation, or, if surrendered to the Trustee,
shall be cancelled by it, and no Securities shall be issued in
lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at
the time of such surrender, the Trustee shall deliver to the
Company cancelled Securities held by the Trustee. In the absence
of such request the Trustee may dispose of cancelled Securities
in accordance with its standard procedures and deliver a certifi-
cate of disposition to the Company. If the Company shall other-
wise acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebt-
18
edness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation.
SECTION 2.9. Benefit of Indenture.
Nothing in this Indenture or in the Securities, express
or implied, shall give or be construed to give to any Person,
other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the
holders of Senior Indebtedness) any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit
of the parties hereto and of the holders of the Securities (and,
with respect to the provisions of Article Fourteen, the holders
of Senior Indebtedness).
SECTION 2.10. Authenticating Agent.
So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all
such series of Securities which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act
on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption
thereof, 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. All
references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation
that has a combined capital and surplus, as most recently report-
ed or determined by it, sufficient under the laws of any juris-
diction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is
subject to supervision or examination by Federal or State author-
ities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
19
Company shall) terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee
may appoint an eligible successor Authenticating Agent acceptable
to the Company. Any successor Authenticating Agent, upon accep-
tance of its appointment hereunder, shall become vested with all
the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section
2.1 that the Securities of a particular series are to be issued
as a Global Security, then the Company shall execute and the
Trustee shall, in accordance with Section 2.4, authenticate and
deliver, a Global Security that (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series, (ii) shall
be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depositary or to a successor Depositary or to a nominee of
such successor Depositary."
(b) Notwithstanding the provisions of Section 2.5, the
Global Security of a series may be transferred, in whole but not
in part and in the manner provided in Section 2.5, only to
another nominee of the Depositary for such series, or to a
successor Depositary for such series selected or approved by the
Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the
Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such series or if at any time the
Depositary for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute
or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company re-
ceives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to
the Securities of such series and the Company will execute, and
20
subject to Section 2.5, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In
addition, the Company may at any time determine that the Securi-
ties of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no
longer apply to the Securities of such series. In such event the
Company will execute and subject to Section 2.5, the Trustee,
upon receipt of an Officers, Certificate evidencing such determi-
nation by the Company, will authenticate and deliver the Securi-
ties of such series in definitive registered form without cou-
pons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of
such series in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Securi-
ties in definitive registered form issued in exchange for the
Global Security pursuant to this Section 2.11(c) shall be regis-
tered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so
registered.
ARTICLE III.
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption.
The Company may redeem the Debt Securities of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section
2.1 hereof.
SECTION 3.2. Notice of Redemption.
(a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debt
Securities of any series in accordance with the right reserved so
21
to do, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Debt Securities of
such series to be redeemed by mailing, first class postage pre-
paid, a notice of such redemption not less than 30 days and not
more than 90 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall
appear upon the Security Register unless a shorter period is
specified in the Debt Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designat-
ed for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the
redemption of any other Debt Securities of such series or any
other series. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such re-
striction.
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which Debt
Securities of that series are to be redeemed, and shall state
that payment of the redemption price of such Debt Securities to
be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debt Securities, that interest
accrued to the date fixed for redemption will be paid as speci-
fied in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if
such is the case. If less than all the Debt Securities of a
series are to be redeemed, the notice to the holders of Debt
Securities of that series to be redeemed in whole or in part
shall specify the particular Debt Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice
that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on
and after the redemption date, upon surrender of such Security, a
new Security or Debt Securities of such series in principal
amount equal to the unredeemed portion thereof.
(b) If less than all the Debt Securities of a series
are to be redeemed, the Company shall give the Trustee at least
22
45 days' notice in advance of the date fixed for redemption as to
the aggregate principal amount of Debt Securities of the series
to be redeemed, and thereupon the Trustee shall select, by lot or
in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or
portions (equal to twenty-five U.S. dollars ($25) or any integral
multiple thereof) of the principal amount of such Debt Securities
of a denomination larger than $25, the Debt Securities to be
redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Debt Securities to be redeemed, in
whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President or
any Vice President, instruct the Trustee or any paying agent to
call all or any part of the Debt Securities of a particular
series for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name
of the Company or its own name as the Trustee or such paying
agent may deem advisable. In any case in which notice of redemp-
tion is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may
be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may
be required under the provisions of this Section.
SECTION 3.3. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have
been completed as above provided, the Debt Securities or portions
of Debt Securities of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price, togeth-
er with interest accrued to the date fixed for redemption and
interest on such Debt Securities or portions of Debt Securities
shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemp-
tion price and accrued interest with respect to any such Security
or portion thereof. On presentation and surrender of such Debt
Securities on or after the date fixed for redemption at the place
of payment specified in the notice, said Debt Securities shall be
paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed
23
for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.3).
(b) Upon presentation of any Security of such series
that is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where
the Security is presented shall deliver to the holder thereof, at
the expense of the Company, a new Security or Debt Securities of
the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4. Sinking Fund.
The provisions of Sections 3.4, 3.5 and 3.6 shall be
applicable to any sinking fund for the retirement of Debt Securi-
ties of a series, except as otherwise specified as contemplated
by Section 2.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Debt 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 Debt Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms
of Debt Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
3.5. Each sinking fund payment shall be applied to the redemption
of Debt Securities of any series as provided for by the terms of
Debt Securities of such series.
SECTION 3.5. Satisfaction of Sinking Fund Payments
with Debt Securities.
The Company (i) may deliver outstanding Debt Securities
of a series (other than any Debt Securities previously called for
redemption) and (ii) may apply as a credit Debt Securities of a
series that have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments
pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with
respect to the Debt Securities of such series required to be made
pursuant to the terms of such Debt Securities as provided for by
24
the terms of such series, provided that such Debt Securities have
not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the
redemption price specified in such Debt Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 3.6. Redemption of Debt Securities for Sink-
ing Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Debt Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Debt Securi-
ties of that series pursuant to Section 3.5 and the basis for
such credit and will, together with such Officers' Certificate,
deliver to the Trustee any Debt Securities to be so delivered.
Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section
3.2 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 3.2. Such notice having been duly given, the redemp-
tion of such Debt Securities shall be made upon the terms and in
the manner stated in Section 3.3.
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Inter-
est.
The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest on the
Debt Securities of that series at the time and place and in the
manner provided herein and established with respect to such Debt
Securities.
SECTION 4.2. Maintenance or Agency.
25
So long as any series of the Securities remain Out-
standing, the Company agrees to maintain an office or agency in
the Borough of Manhattan, the City and State of New York, with
respect to each such series and at such other location or loca-
tions as may be designated as provided in this Section 4.2, where
(i) Securities of that series may be presented for payment, (ii)
Securities of that series may be presented as hereinabove autho-
rized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or
served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by
its President or a Vice President and delivered to the trustee,
designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands
may be made or served at the Corporate Trust Office of the Trus-
tee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.
SECTION 4.3. Paying Agents.
(a) If the Company shall appoint one or more paying
agents for all or any series of the Securities, other than the
Trustee, the Company will cause each such paying agent to execute
and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Securities of that series (whether
such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2) that it will give the Trustee notice of any fail-
ure by the Company (or by any other obligor of such Securi-
ties) to make any payment of the principal of (and premium,
if any) or interest on the Securities of that series when
the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
26
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent
with respect to any series of the Securities, it will on or
before each due date of the principal of (and premium, if any) or
interest on Securities of that series, set aside, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have
one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such paying agent is the Trust-
ee) the Company will promptly notify the Trustee of this action
or failure so to act.
(c) Notwithstanding anything in this Section to the
contrary, (i) the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Section 11.5, and
(ii) the Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or 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 terms and conditions
as those upon which such sums were held by the Company or such
paying agent; and, upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.4. Appointment to Fill Vacancy in Office of
Trustee.
27
The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
SECTION 4.5. Compliance with Consolidation Provis-
ions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with, or merge into, or merge
into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article
Ten hereof are complied with.
SECTION 4.6. Limitation on Dividends; Transactions
with Affiliates.
If Securities are issued to a NorAm Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such NorAm Trust and (i) there shall have occurred
any event that would constitute an Event of Default, (ii) NorAm
shall be in default with respect to its payment of any obliga-
tions under the Preferred Securities Guarantee or Common Securi-
ties Guarantee relating to such NorAm Trust or (iii) the Company
shall have given notice of its election to defer payments of
interest on such Securities by extending the interest payment
period as provided in the Indenture and such period, or any
extension thereof, shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, and (b) the
Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or
Junior to such Securities.
SECTION 4.7. Covenants as to NorAm Trusts.
In the event Securities are issued to a NorAm Trust or
a trustee of such trust in connection with the issuance of Trust
Securities by such NorAm Trust, for so long as such Trust Securi-
ties remain outstanding, the Company will (i) maintain 100%
direct or indirect ownership of the Common Securities of such
NorAm Trust; provided, however, that any permitted successor of
the Company under the Indenture may succeed to the Company's
28
ownership of the Common Securities, (ii) use its reasonable
efforts to cause such NorAm Trust (a) to remain a business trust,
except in connection with a distribution of Securities, the
redemption of all of the Trust Securities of such NorAm Trust or
certain mergers, consolidations or amalgamations, each as permit-
xxx by the Declaration of such NorAm Trust, and (b) to otherwise
continue not to be treated as an association taxable as a corpo-
ration or partnership for United States federal income tax
purposes and (iii) to we its reasonable efforts to cause each
holder of Trust Securities to be treated as owning an individual
beneficial interest in the Securities.
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and
Addresses of Securityholders.
The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis on each regular record date
(as defined in Section 2.3) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or
cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee
may request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished for any series for which the Trustee shall be
the Security Registrar.
SECTION 5.2. Preservation Of Informat Communications
With Securityholders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and
addresses of the holders of Securities contained in the most
recent list furnished to it as provided in Section 5.1 and as to
the names and addresses of holders of Securities received by the
29
Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it
as provided in Section 5.1 upon receipt of a new list so fur-
nished.
(c) Securityholders may communicate as provided in
Section 312(b) of the Trust Indenture Act with other Security-
holders with respect to their rights under this Indenture or
under the Securities.
SECTION 5.3. Reports by the Company.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not re-
quired to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations pre-
scribed from time to time by the Commission, such of the supple-
mentary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securi-
ties exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by
mail, first class postage prepaid, or reputable over-night
delivery service that provides for evidence of receipt, to the
Securityholders, as their names and addresses appear upon the
Security Register, within 30 days after the filing thereof with
30
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsec-
tions (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.4. Reports by the Trustee.
(a) On or before July 15 in each year in which any of
the Securities are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as
their names and addresses appear upon the Security Register, a
brief report dated as of the preceding May 15, if and to the
extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of
such transmission to Securityholders, be filed by the Trustee
with the Company, with each stock exchange upon which any Securi-
ties are listed (if so listed) and also with the Commission. The
Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default.
(a) Whenever used herein with respect to Securities of
a particular series, "Event of Default" means any one or more of
the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any in-
stallment of interest upon any of the Securities of that
series, as and when the same shall become due and payable,
and continuance of such default for a period of __ days;
provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms
of any indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
31
(2) the Company defaults in the payment of the princi-
pal of (or premium, if any, on) any of the Securities of
that series as and when the same shall become due and pay-
able whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any inden-
ture supplemental hereto shall not constitute a default in
the payment of principal or premium, if any;
(3) if applicable to the Securities of that series,
failure by the Company to issue NorAm Common Stock upon an
election by the Holder or Holders of such Debt Securities to
convert such Debt Securities into shares of NorAm Common
Stock pursuant to the supplemental indenture, Board Reso-
lution or other instrument authorizing such series of Secu-
rities;
(4) the Company fails to observe or perform any other
of its covenants or agreements with respect to that series
contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.1
hereof (other than a covenant or agreement that has been
expressly included in this Indenture solely for the benefit
of one or more series of Securities other than such series)
for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied
and stating that such notice is a "Notice of Default" here-
under, shall have been given to the Company by the Trustee,
by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount
of the Securities of that series at the time Outstanding;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in
an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its
property or (iv) makes a general assignment for the benefit
of its creditors;
(6) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case, (ii) appoints a Custodian of
32
the Company for all or substantially all of their respective
property, or (iii) orders the liquidation of the Company or
the Guarantor, and the order or decree remains unstayed and
in effect for 90 days; or
(7) in the event Securities are issued to a NorAm
Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such NorAm Trust, such NorAm
Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence
except in connection with (i) the distribution of Securities
to holders of Trust Securities in liquidation of their
interests in such NorAm Trust, (ii) the redemption of all of
the outstanding Trust Securities of such NorAm Trust or
(iii) certain mergers, consolidations or amalgamation, each
as permitted by the Declaration of such NorAm Trust.
(b) In each and every such case, unless the principal
of all the Securities of that series shall have already become
due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Securities of that
series then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Securityholders),
may declare the principal of all the Securities of that series to
be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable,
notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to that
series pursuant to Section 2.1 to the contrary.
(c) At any time after the principal of the Securities
of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the
holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforce-
able under applicable law, upon overdue installments of interest,
33
at the rate per annum expressed in the Securities of that series
to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.6, and (ii) any and all Events of
Default under the Indenture with respect to such series, other
than the nonpayment of principal on Securities of that series
that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.6.
No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right conse-
quent thereon.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Securities of that series under
this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee
shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceed-
ings had been taken.
SECTION 6.2. Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenant that (1) in case it shall
default in the payment of any installment of interest on any of
the Securities of a series, or any payment required by any
sinking or analogous fund established with respect to that series
as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or
(2) in case it shall default in the payment of the principal of
(or premium, if any, on) any of the Securities of a series when
the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declara-
tion or otherwise, then, upon demand of the Trustee or the
Guarantor will pay to the Trustee, for the benefit of the holders
of the Securities of that series, the whole amount that then
shall have been become due and payable on all such Securities for
principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if
any) and (to the extent that payment of such interest is enforce-
able under applicable law and, if the Securities are held by a
NorAm Trust or a trustee of such trust, without duplication of
34
any other amounts paid by such NorAm Trust or trustee in respect
thereof) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in addi-
tion thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to
the Trustee under Section 7.6.
(b) 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, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or other obligor upon
the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquida-
tion, bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affected the Company or the
creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be other-
wise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable
in order to have the claims of the Trustee and of the holders of
Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of insti-
tution of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after
the deduction of the amount payable to the Trustee under Section
7.6; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.6.
(d) All rights of action and of asserting claims under
this Indenture, or under any of the terms established with
respect to Securities of that series, may be enforced by the
35
Trustee without the possession of any of such Securities, or the
production thereof at any trial or other proceeding relative
thereto, and any such suit or 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
payment to the Trustee of any amounts due under Section 7.6, be
for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee
may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrange-
ment, adjustment or composition affecting the Securities of that
series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.3. Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this
Article with respect to a particular series of Securities shall
be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such moneys on
account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collec-
tion and of all amounts payable to the Trustee under Section
7.6;
36
SECOND: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article Four-
teen; and
THIRD: To the payment of the amounts then due and
unpaid upon Securities of such series for principal (and
premium, if any) and interest, 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
(and premium, if any) and interest, respectively.
SECTION 6.4. Limitation on Suits.
No holder of any Security of any series shall have any
right by virtue or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to
the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action, suit
or proceeding in its own name as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reason-
able indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the
Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 60 day period, the
holders of a majority in principal amount of the Securities of
that series do not give the Trustee a direction inconsistent with
the request.
Notwithstanding anything contained herein to the
contrary, any other provisions of this Indenture, the right of
any holder of any Security to receive payment of the principal of
(and premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date),
or to institute suit for the enforcement of any such payment on
or after such respective dates or redemption date, shall not be
37
impaired or affected without the consent of such holder and by
accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securi-
ties, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities of
series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in
equity.
SECTION 6.5. Rights and Remedies Cumulative; Delay or
Omission Not Waiver.
(a) Except as otherwise provided in Section 2.7, all
powers and remedies given by this Article to the Trustee or to
the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the Securi-
ties, by judicial proceedings or otherwise, to enforce the per-
formance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to such
Securities.
(b) No delay or omission of the Trustee or of any
holder of any of the Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.4, every
power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Securityholders.
38
SECTION 6.6. Control by Securityholders.
The holders of a majority in aggregate principal amount
of the Securities of any series at the time Outstanding, deter-
mined in accordance with Section 8.4, 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 such series;
provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or be unduly prejudi-
cial to the rights of holders of Securities of any other series
at the time Outstanding determined in accordance with Section
8.4. Subject to the provisions of Section 7.1, the Trustee shall
have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers
of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in
accordance with Section 8.4, may on behalf of the holders of all
of the Securities of such series waive any past default in the
performance of any of the covenants contained herein or estab-
lished pursuant to Section 2.1 with respect to such series and
its consequences, except (i) a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due
by the terms of such Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with
Section 6.1(c)), (ii) a default in the covenants contained in
Section 4.6 or (iii) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected; provided, however, that if the Debt Securities
of such series are held by a NorAm Trust or a trustee of such
trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in liquidation prefer-
ence of Trust Securities of the applicable NorAm Trust shall have
consented to such waiver or modification to such waiver; provided
further, that if the consent of the Holder of each Outstanding
Debt Security is required, such waiver shall not be effective
until each holder of the Trust Securities of the applicable NorAm
Trust shall have consented to such waiver. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all
39
purposes of this Indenture and the Company, the Trustee and the
holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.7. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of
any Securities by such holder's 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 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 insti-
tuted by the Trustee, to any suit instituted by any Security-
holder, or group of Securityholders, holding more than 10% in
aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established
pursuant to this Indenture.
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of
Trustee.
(a) The Trustee prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of
that series that may have occurred, shall undertake to perform
with respect to the Securities of such series such duties and
only such duties as are specifically set forth in this Inden-
ture,and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to
40
the Securities of a series has occurred (that has not been cured
or waived), the Trustee shall exercise with respect to Securities
of that 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.
(b) 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 willful
misconduct, except that:
(1) prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the
curing or waiving of all such Events of Default with respect
to that series that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Securities of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to the Securities of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no im-
plied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to the Secu-
rities of such series conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any 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 that 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 requirement of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee, was negligent in ascertaining the
pertinent facts;
41
(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 not less
than a majority in principal amount of the Securities of any
series at the time Outstanding relating to the time, method
and place of conducting any proceeding for any remedy avail-
able to the Trustee, or exercising any trust or power con-
ferred upon the Trustee under this Indenture with respect to
the Securities of that series; and
(4) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the perfor-
xxxxx of any of its duties or in the exercise of any of its
rights or powers, if there is reasonable ground for believ-
ing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.2. Certain Rights of Trustee.
Except as otherwise provided in Section 7.1:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certifi-
cate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security 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, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a
Board Resolution or an instrument signed in the name of the
Company by the President or any Vice President and by the Secre-
tary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) 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 or suffered or omitted hereunder in good faith and
in reliance thereon;
42
(d) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Inden-
ture at the request, order or direction of any of the Security-
holders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with
respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any inves-
tigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other
papers or documents, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the
Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.4); provided, however, that
if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(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.
43
SECTION 7.3. Trustee Not Responsible for Recitals or
Issuance or Securities.
(a) The recitals contained herein and in the Securi-
ties shall be taken as the statements of the Company and the
Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use
or application by the Company of any of the Securities or of the
proceeds of such Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision
of this Indenture or established pursuant to Section 2.1, or for
the use or application of any moneys received by any paying agent
other than the Trustee.
SECTION 7.4. May Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it
were not Trustee, paying agent or Security Registrar.
SECTION 7.5. Moneys Held in Trust.
Subject to the provisions of Section 11.5, all moneys
received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were
received, but 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 such as it may agree with the Company to pay thereon.
SECTION 7.6. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the
Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust),
as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any
44
of the powers and duties hereunder of the Trustee, and, except as
otherwise expressly provided herein, the Company will pay or
reimburse the Trustee upon its request for all reasonable expens-
es, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (includ-
ing the reasonable compensation and the expenses and disburse-
ments of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also cove-
nants to indemnify the Trustee (and its officers, agents, direc-
tors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connec-
tion with the acceptance or administration of this trust, includ-
ing the costs and expenses of defending itself against any claim
of liability in the premises.
(b) The obligations of the Company under this Section
to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities.
SECTION 7.7. Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.1, whenever
in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to
take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of
this Indenture upon the faith thereof.
SECTION 7.8. Disqualification: Conflicting Interests.
45
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Inden-
ture Act.
SECTION 7.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to
the Securities issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000-
,000), and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervis-
ing or examining authority, then for the purposes of this Sec-
tion, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as
Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal; Appointment of
Successor.
(a) The Trustee or any successor hereafter appointed,
xxx at any time resign with respect to the Securities of one or
more series by giving written notice thereof to the Company and
by transmitting notice of resignation by mail, first class
postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
46
trustee. If no successor trustee shall have been so appointed
and have accepted appointment within 30 days after the mailing 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 Securities of such series, or
any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may, subject
to the provisions of Section 6.8, on behalf of himself and all
others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall
occur:
(1) the Trustee shall fail to comply with the provi-
sions of subsection (a) of Section 7.8 after written request
therefor by the Company or the Guarantor or by any Security-
holder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accor-
dance with the provisions of Section 7.9 and shall fail to
resign after written request therefor by the Company or by
any such Securityholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the Trust-
ee or of its property shall be appointed or consented to, 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, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.8,
unless the Trustee's duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months may, on
behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal
47
of the Trustee and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and ap-
point a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding
may at any time remove the Trustee with respect to such series by
so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the Compa-
ny.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Securities
of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Securities of one or
more series or all of such series, and at any time there shall be
only one Trustee with respect to the Securities of any particular
series.
SECTION 7.11. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a succes-
sor trustee with respect to all Securities, 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
its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a succes-
sor trustee with respect to the Securities of one or more (but
not all) series, the Company, the retiring Trustee and each
48
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) 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, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental inden-
ture, the 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 and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
49
such rights, powers and trusts referred to in paragraph (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.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit
notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company
and the Guarantor.
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corpora-
tion resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding
to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corpora-
tion shall be qualified under the provisions of Section 7.8 and
eligible under the provisions of Section 7.9, without the execu-
tion or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwith-
standing. 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 7.13. Preferential Collection of Claims
Against the Company.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship de-
scribed in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein.
50
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate
principal amount of the Securities of a particular series may
take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of
that series have joined therein may be evidenced by any instru-
ment or any number of instruments of similar tenor executed by
such holders of Securities of that series in Person or by agent
or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its
option, as evidenced by an Officers' Certificate, fix in advance
a record date for such series for the determination of Security-
holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, 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 action may be given before or after the
record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Security-
holders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of
that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 8.2. Proof of Execution by Securityholders.
51
Subject to the provisions of Section 7.1, proof of the
execution of any instrument by a Securityholder (such proof will
not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be suffi-
cient if made in the following manner:
(a) The fact and date of the execution by any such
Person of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the
Security Register of such Securities or by a certificate of the
Security Registrar thereof.
(c) The Trustee may require such additional proof of
any matter referred to in this Section as it shall deem neces-
sary.
SECTION 8.3. Who May be Deemed Owners.
Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the books of
the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice
of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and (subject to
Section 2.3) interest on such Security and for all other purpos-
es; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the
contrary.
SECTION 8.4. Certain Securities Owned by Company
Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series
have concurred in any direction, consent of waiver under this
Indenture, the Securities of that series that are owned by the
Company or any other obligor on the Securities of that series or
by any Person directly or indirectly controlling or controlled by
or under common control with the Company or any other obligor on
the Securities of that series shall be disregarded and deemed not
52
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 Securities of such series that the Trustee actually
knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not a Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. 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 8.5. Actions Binding on Future
Securityholders.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.1, of the taking of any
action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series speci-
fied in this Indenture in connection with such action, any holder
of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.2, revoke such
action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security shall be conclu-
sive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place there-
of, irrespective of whether or not any notation in regard thereto
is made upon such Security. Any action taken by the holders of
the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in
connection with such action shall be conclusively binding upon
the Company, the Trustee and the holders of all the Securities of
that series.
53
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the
Consent of Securityholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may
from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein, in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(d) to add to the covenants of the Company for the
benefit of the holders of all or any Series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Securities, as
herein set forth;
(f) to make any change that does not adversely affect
the rights of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the
form and terms and conditions of the Securities of any series, to
establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Securi-
ties, or to add to the rights of the holders of any series of
Securities.
54
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, and
to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated
to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of
Section 9.2.
SECTION 9.2. Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.1)
of the holders of not less than a majority in aggregate principal
amount of the Securities of each series affected by such supple-
mental indenture or indentures at the time Outstanding, the
Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner not covered
by Section 9.1 the rights of the holders of the Securities of
such series under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the holders
of each Debenture then Outstanding and affected thereby, (i)
extend the fixed maturity of any Securities of any series, or
reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the
holder of each Security so affected or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to
consent to any such supplemental indenture provided, further,
that if the Debt Securities of such series are held by a NorAm
Trust or a trustee of such trust, such supplemental indenture
shall not be effective until the holders of a majority in liqui-
dation preference of Trust Securities of the applicable Trust
shall have consented to such supplemental indenture; provided
further, that if the consent of the Holder of each Outstanding
55
Debt Security is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the
applicable NorAm Trust shall have consented to such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section
to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 9.3. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.1,
this Indenture shall, with respect to such series, be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and
the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.4. Securities Affected by Supplemental In-
dentures.
Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of
such supplemental indenture pursuant to the provisions of this
Article or of Section 10.1, may bear a notation in form approved
by the Company, provided such form meets the requirements of any
exchange upon which such series may be listed, as to any matter
provided for in such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of that series so modified as
to conform, in the opinion of the Board of Directors of the
Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
56
SECTION 9.5. Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by their
Board Resolutions authorizing the execution of any such supple-
mental indenture, and upon the filing with the Trustee of evi-
dence of the consent of Securityholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supple-
mental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter
into such supplemental indenture. The Trustee, subject to the
provisions of Section 7.1, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for
the Trustee under the provisions of this Article to join in the
execution thereof.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company, as the case may be),
or successive consolidations or mergers in which the Company, as
the case may be, or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company, as the case may
57
be, or its successor or successors as an entirety, or substan-
tially as an entirety, to any other corporation (whether or not
affiliated with the Company, as the case may be, or its successor
or successors) authorized to acquire and operate the same;
provided, however, the Company hereby covenants and agree that,
upon any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment, in the case
of the Company, of the principal of (premium, if any) and inter-
est on all of the Debt Securities of all series in accordance
with the terms of each series, according to their tenor and the
due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.1
to be kept or performed by the Company as the case may be, shall
be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in
effect) satisfactory in form to the Trustee executed and deliv-
ered to the Trustee by the entity formed by such consolidation,
or into which the Company, as the case may be, shall have been
merged, or by the entity which shall have acquired such property.
SECTION 10.2. Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption
by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the
Trustee, of, in the case of the Company, the due and punctual
payment of the principal of, premium, if any, and interest on all
of the Debt Securities of all series Outstanding and the due and
punctual performance of all of the covenants and conditions of
this Indenture or established with respect to each series of the
Securities pursuant to Section 2.1 to be performed by the Compa-
ny, as the case may be, with respect to each series, such succes-
sor corporation shall succeed to and be substituted for the
Company, as the case may be, with the same effect as if it had
been named as the Company, as the case may be, herein, and there-
upon the predecessor corporation shall be relieved of all obliga-
tions and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in phrase-
ology and form (but not in substance) may be made in the Securi-
ties thereafter to be issued as may be appropriate.
58
(c) Nothing contained in this Indenture or in any of
the Securities shall prevent the Company from merging into itself
or acquiring by purchase or otherwise all or any part of the
property of any other Person (whether or not affiliated with the
Company).
SECTION 10.3. Evidence of Consolidation, Etc. to Trus-
tee.
The Trustee, subject to the provisions of Section 7.1,
may receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions
of this Article.
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to
the Trustee for cancellation all Securities of a series thereto-
fore authenticated (other than any Securities that shall have ben
destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.7) and Securities for whose payment
money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as
provided in Section 11.5); or all such Securities of a particular
series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations
sufficient or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for cancel-
lation, including principal (and premium, if any) and interest
due or to become due to such date of maturity or date fixed for
59
redemption, as the case may be, and if the Company shall also pay
or cause to be paid all other sums payable hereunder with respect
to such series by the Company; then this Indenture shall thereup-
on cease to be of further effect with respect to such series
except for the provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2,
4.3 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.6 and 11.5,
that shall survive to such date and thereafter, and the Trustee,
on demand of the Company and at the cost and expense of the
Company, shall execute proper instruments acknowledging satis-
faction of and discharging this Indenture with respect to such
series.
SECTION 11.2. Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation
or that have not become due and payable as described in Section
11.1 shall have been paid by the Company by depositing irrevoca-
xxx with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon
redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obliga-
tions, as the case may be, are deposited with the Trustee the
obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the
provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4,3, 7.6, 7.10
and 11.5 hereof that shall survive until such Securities shall
mature and be paid. Thereafter, Sections 7.6 and 11.5 shall
survive.
SECTION 11.3. Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.1 or 11.2 shall be held in
trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its
own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.
60
SECTION 11.4. Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held
by any paying agent under the provisions of this Indenture shall,
upon demand of the Company, be paid to the Trustee and thereupon
such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
SECTION 11.5. Repayment to Company.
Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company in
trust for payment of principal of or premium or interest on the
Securities of a particular series that are not applied but remain
unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively
become due and payable, shall be repaid to the Company, as the
case may be, on May 31 of each year or (if then held by the
Company) shall be discharged from such trust; and thereupon the
paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obliga-
tions, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company or the Guarantor for the
payment thereof.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.1. No Recourse.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past,
present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company
or the Guarantor or any such predecessor or successor corpora-
tion, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or
61
otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obliga-
tions, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockhold-
ers, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained
in this Indenture or in any of the Securities or implied there-
from; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as
such, because of the creation of the indebtedness hereby autho-
rized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securi-
ties or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.1. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agree-
ments in this Indenture contained by or on behalf of the Company
shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 13.2. Actions by Successor.
Any act or proceeding by any provision of this Inden-
ture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company, as the case may be.
SECTION 13.3. Surrender of Company Powers.
The Company by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and
62
delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to
any successor corporation.
SECTION 13.4. Notices.
Except as otherwise expressly provided herein any
notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Securities to or on the Company may be given or
served by being deposited first class postage prepaid in a post-
office letterbox addressed (until another address is filed in
writing by the Company with the Trustee), as follows: c/o NorAm
Energy Corp., ______________________________________, Attention:
_________________. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.5. Governing Law.
This Indenture and each Security shall be deemed to be
a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of said State.
SECTION 13.6. Treatment of Debt Securities as Debt.
It is intended that the Debt Securities will be treated
as indebtedness and not as equity for federal income tax purpos-
es. The provisions of this Indenture shall be interpreted to
further this intention.
SECTION 13.7. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent
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 have
been complied with, except that in the case of any such applica-
63
tion or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certifi-
cate or opinion need be furnished.
(b) Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant in this
Indenture shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examina-
tion or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a state-
ment that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
SECTION 13.8. Payments on Business Days.
Except as provided pursuant to Section 2.1 pursuant to
a Board Resolution, and as set forth in an Officers' Certificate,
or established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or
principal of any Security or the date of redemption of any
Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeed-
ing Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall
accrue for the period after such nominal date.
SECTION 13.9. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Inden-
ture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 13.10. Counterparts.
This Indenture may be executed in any number of coun-
terparts, each of which shall be an original, but such counter-
parts shall together constitute but one and the same instrument.
64
SECTION 13.11. Separability.
In case any one or more of the provisions contained in
this Indenture or in the Securities of any series shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be con-
strued as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign
any of its respective rights or obligations under this Indenture
to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company,
as the case may be, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Debt
Securities held by NorAm Trust or a trustee of such trust, if the
Institutional Trustee of such Trust fails to enforce its rights
under this Indenture as the holder of the series of Debt Securi-
ties held as the assets of such NorAm Trust any holder of Pre-
ferred Securities may institute legal proceedings directly
against the Company to enforce such Institutional Trustee's
rights under this Indenture without first instituting any legal
proceedings against such Institutional Trustee or any other
person or entity.
ARTICLE XIV.
SUBORDINATION OF SECURITIES
SECTION 14.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of
Debt Securities issued hereunder by such Xxxxxx's acceptance
65
thereof likewise covenants and agrees, that all Debt Securities
shall be issued subject to the provisions of this Article XIV;
and each Holder of a Debt Security, whether upon original issue
or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, premi-
um, if any, and interest on all Debt Securities issued hereunder
shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XIV shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 14.2. Default on Senior Indebtedness.
In the event and during the continuation of any default
by the Company in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness of the Company,
as the case may be, or in the event that the maturity of any
Senior Indebtedness of the Company, as the case may be, has been
accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the princi-
pal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 14.3, such
payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebt-
edness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing within 90 days of such
payment of the amounts then due and owing on the Senior Indebted-
ness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.
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SECTION 14.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its
terms, before any payment is made by the Company on account of
the principal (and premium, if any) or interest on the Debt
Securities; and upon any such dissolution or winding-up or liqui-
dation or reorganization, any payment by the Company, or distri-
bution of assets of the Company of any kind or character, whether
in cash, property or securities, to which the Holders of the Debt
Securities or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XIV, shall be
paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Debt Securities or by the
Trustee under the Indenture if received by them or it, directly
to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company)
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Debt Securities
or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
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instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
For purposes of this Article XIV, 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 of
reorganization or readjustment, the payment of which is subordi-
nated at least to the extent provided in this Article XIV with
respect to the Debt Securities to the payment of all Senior In-
debtedness of the Company, as the case may be, that may at the
time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the
holders of such Senior Indebtedness are not, without the consent
of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolu-
tion 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 X of the Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section 14.3 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with
the conditions stated in Article X of the Indenture. Nothing in
Section 14.2 or in this Section 14.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.6 of the
Indenture.
SECTION 14.4. Subrogation.
Subject to the payment in full of all Senior Indebt-
edness of the Company, the rights of the Holders of the Debt
Securities shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of
(and premium, if any) and interest on the Debt Securities shall
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be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebted-
ness of any cash, property or securities to which the Holders of
the Debt Securities or the Trustee would be entitled except for
the provisions of this Article XIV, and no payment over pursuant
to the provisions of this Article XIV to or for the benefit of
the holders of such Senior Indebtedness by Holders of the Debt
Securities or the Trustee, shall, as between the Company, its
creditors other than Holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities, be deemed to be
a payment by the Company to or on account of such Senior Indebt-
edness. It is understood that the provisions of this Article XIV
are and are intended solely for the purposes of defining the
relative rights of the Holders of the Debt Securities, on the one
hand, and the holders of such Senior Indebtedness on the other
hand.
Nothing contained in this Article XIV or elsewhere in
the Indenture, this First Supplemental Indenture or in the Debt
Securities is intended to or shall impair, as between the Compa-
ny, its creditors other than the holders of Senior Indebtedness
of the Company, and the Holders of the Debt Securities, the
obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt 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 of the Debt Securities and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall anyth-
ing herein or therein prevent the Trustee or the Holder of any
Debt Security from exercising all remedies otherwise permitted by
applicable law upon default under the Indenture, subject to the
rights, if any, under this Article XIV of the holders of such
Senior Indebtedness in respect of cash, property or securities of
the Company, as the case may be, received upon the exercise of
any such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article XIV, the Trustee, subject to
the provisions of Section 7.1 of the Indenture, and the Holders
of the Debt Securities shall be entitled to conclusively rely
upon any order or decree made by any court of competent jurisdic-
tion in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the
69
receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to
the Trustee or to the Holders of the Debt Securities, for the
purposes of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or dis-
tributed thereon and all other facts pertinent thereto or to this
Article XIV.
SECTION 14.5. Trustee to Effectuate Subordination.
Each Holder of Debt Securities by such Xxxxxx's accep-
tance thereof authorizes and directs the Trustee on such Holder's
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XIV and
appoints the Trustee such Xxxxxx's attorney-in-fact for any and
all such purposes.
SECTION 14.6. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debt Securities pursuant
to the provisions of this Article XIV. Notwithstanding the
provisions of this Article XIV or any other provision of the
Indenture and this First Supplemental Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XIV, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section
7.1 of the Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section
6.6 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debenture), then, any-
thing herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money
70
and to apply the same to the purposes for which they were re-
ceived, and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 7.1
of the Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing him-
self to be a holder of Senior Indebtedness of the Company, as the
case may be (or a trustee on behalf of such holder), to establish
that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or hold-
ers. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any
Person as a holder of such Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XIV, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article XIV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 14.7. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be enti-
tled to all the rights set forth in this Article XIV in respect
of any Senior Indebtedness at any time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article XIV, and no implied covenants or obliga-
tions with respect to the holders of such Senior Indebtedness
shall be read into the Indenture or this First Supplemental
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of such Senior Indebted-
ness and, subject to the provisions of Section 7.1 of the Inden-
71
ture, the Trustee shall not be liable to any holder of such
Senior Indebtedness if it shall pay over or deliver to Holders of
Debt Securities, the Company or any other Person money or assets
to which any holder of such Senior Indebtedness shall be entitled
by virtue of this Article XIV or otherwise.
SECTION 14.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Debt
Securities, without incurring responsibility to the Holders of
the Debt Securities and without impairing or releasing the subor-
dination provided in this Article XIV or the obligations hereun-
der of the Holders of the Debt Securities to the holders of such
Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebted-
ness or any instrument evidencing the same or any agreement under
which such Senior Indebtedness is outstanding; (ii) sell, ex-
change, release or otherwise deal with any property pledged,
mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of
such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, as the case may be,
and any other Person.
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.
72
NORAM ENERGY CORP.
By_________________
Attest:
By___________________________________________
[ ]
as Trustee
By__________________
73
STATE OF )
COUNTY OF ) ss.:
On the ____ day of ________________, 1995, before me person-
ally came __________________ to me known, who, being by me duly
sworn, did depose and say that he is the of NORAM ENERGY CORP.,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Direc-
tors of said corporation, and that he signed his name thereto by
like authority.
__________________________
NOTARY PUBLIC
[seal] Commission expires
_____________________________
NOTARY PUBLIC
[seal] Commission expires
74
