Exhibit 4.03
__________________________________________
ENTERGY ARKANSAS, INC.
TO
THE BANK OF NEW YORK
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of July 1, 1996
__________________________________________
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Discount Security 3
Dollar or $ 3
Eligible Obligations 3
Event of Default 3
Governmental Authority 3
Government Obligations 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 6
Periodic Offering 6
Person 6
Place of Payment 6
Predecessor Security 6
Redemption Date 6
Redemption Price 6
Regular Record Date 7
Required Currency 7
Responsible Officer 7
Securities 7
Security Register and Security Registrar 7
Senior Indebtedness 7
Special Record Date 7
Stated Interest Rate 7
Stated Maturity 7
Tranche 7
Trust Indenture Act 8
Trustee 8
United States 8
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents
Delivered to Trustee 9
SECTION 104. Acts of Holders 9
SECTION 105. Notices, etc. to Trustee and Company 11
SECTION 106. Notice to Holders of Securities; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of Contents 13
SECTION 109. Successors and Assigns 13
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 13
ARTICLE TWO 14
Security Forms 14
SECTION 201. Forms Generally 14
SECTION 202. Form of Trustee's Certificate of
Authentication 15
ARTICLE THREE 15
The Securities 15
SECTION 301. Amount Unlimited; Issuable in Series 15
SECTION 302. Denominations 18
SECTION 303. Execution, Authentication, Delivery and
Dating 19
SECTION 304. Temporary Securities 21
SECTION 305. Registration, Registration of Transfer
and Exchange 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities 23
SECTION 307. Payment of Interest; Interest Rights
Preserved 24
SECTION 308. Persons Deemed Owners 25
SECTION 309. Cancellation by Security Registrar 25
SECTION 310. Computation of Interest 26
SECTION 311. Payment to Be in Proper Currency 26
SECTION 312. Extension of Interest Payment 26
SECTION 313. CUSIP Numbers 26
ARTICLE FOUR 27
Redemption of Securities 27
SECTION 401. Applicability of Article 27
SECTION 402. Election to Redeem; Notice to Trustee 27
SECTION 403. Selection of Securities to Be Redeemed 27
SECTION 404. Notice of Redemption 28
SECTION 405. Securities Payable on Redemption Date 29
SECTION 406. Securities Redeemed in Part 29
ARTICLE FIVE 30
Sinking Funds 30
SECTION 501. Applicability of Article 30
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities 30
SECTION 503. Redemption of Securities for Sinking Fund 30
ARTICLE SIX 31
Covenants 31
SECTION 601. Payment of Principal, Premium and Interest 31
SECTION 602. Maintenance of Office or Agency 31
SECTION 603. Money for Securities Payments to Be Held
in Trust 32
SECTION 604. Corporate Existence 33
SECTION 605. Maintenance of Properties 33
SECTION 606. Annual Officer's Certificate as to
Compliance. 34
SECTION 607. Waiver of Certain Covenants 34
SECTION 608. Restriction on Payment of Dividends 35
ARTICLE SEVEN 35
Satisfaction and Discharge 35
SECTION 701. Satisfaction and Discharge of Securities 35
SECTION 702. Satisfaction and Discharge of Indenture 37
SECTION 703. Application of Trust Money 38
ARTICLE EIGHT 39
Events of Default; Remedies 39
SECTION 801. Events of Default 39
SECTION 802. Acceleration of Maturity; Rescission and
Annulment 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee. 41
SECTION 804. Trustee May File Proofs of Claim 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 42
SECTION 806. Application of Money Collected 43
SECTION 807. Limitation on Suits 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest 44
SECTION 809. Restoration of Rights and Remedies 44
SECTION 810. Rights and Remedies Cumulative 44
SECTION 811. Delay or Omission Not Waiver 44
SECTION 812. Control by Holders of Securities 45
SECTION 813. Waiver of Past Defaults 45
SECTION 814. Undertaking for Costs 45
SECTION 815. Waiver of Stay or Extension Laws 46
ARTICLE NINE 46
The Trustee 46
SECTION 901. Certain Duties and Responsibilities 46
SECTION 902. Notice of Defaults 47
SECTION 903. Certain Rights of Trustee 48
SECTION 904. Not Responsible for Recitals or Issuance
of Securities 49
SECTION 905. May Hold Securities 49
SECTION 906. Money Held in Trust 49
SECTION 907. Compensation and Reimbursement 49
SECTION 908. Disqualification; Conflicting Interests. 50
SECTION 909. Corporate Trustee Required; Eligibility 50
SECTION 910. Resignation and Removal; Appointment of
Successor 51
SECTION 911. Acceptance of Appointment by Successor 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 54
SECTION 913. Preferential Collection of Claims Against
Company 54
SECTION 914. Co-trustees and Separate Trustees. 55
SECTION 915. Appointment of Authenticating Agent 56
ARTICLE TEN 58
Holders' Lists and Reports by Trustee and Company 58
SECTION 1001. Lists of Holders 58
SECTION 1002. Reports by Trustee and Company 58
ARTICLE ELEVEN 59
Consolidation, Merger, Conveyance or Other Transfer 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms 59
SECTION 1102. Successor Corporation Substituted 59
ARTICLE TWELVE 60
Supplemental Indentures 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders 60
SECTION 1202. Supplemental Indentures With Consent
of Holders 61
SECTION 1203. Execution of Supplemental Indentures 63
SECTION 1204. Effect of Supplemental Indentures 63
SECTION 1205. Conformity With Trust Indenture Act 63
SECTION 1206. Reference in Securities to Supplemental
Indentures 63
SECTION 1207. Modification Without Supplemental
Indenture 64
ARTICLE THIRTEEN 64
Meetings of Holders; Action Without Meeting 64
SECTION 1301. Purposes for Which Meetings May Be Called 64
SECTION 1302. Call, Notice and Place of Meetings 64
SECTION 1303. Persons Entitled to Vote at Meetings 65
SECTION 1304. Quorum; Action 65
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings 66
SECTION 1306. Counting Votes and Recording Action of
Meetings 67
SECTION 1307. Action Without Meeting 67
ARTICLE FOURTEEN 68
Immunity of Incorporators, Stockholders, Officers and Directors 68
SECTION 1401. Liability Solely Corporate 68
ARTICLE FIFTEEN 68
Subordination of Securities 68
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 68
SECTION 1502. Payment Over of Proceeds of Securities 68
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness 70
SECTION 1504. Subrogation 71
SECTION 1505. Obligation of the Company Unconditional 71
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity 72
SECTION 1507. Trustee as Holder of Senior Indebtedness 72
SECTION 1508. Notice to Trustee to Effectuate
Subordination 72
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness 73
SECTION 1511. Paying Agents Other Than the Trustee 73
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired 73
SECTION 1513. Effect of Subordination Provisions;
Termination 73
Testimonium 75
Signatures and Seals 75
Acknowledgements 76
ENTERGY ARKANSAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of July 1, 1996
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of July 1, 1996, between
ENTERGY ARKANSAS, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein
called the "Company"), having its principal office at 425
West Capitol, Little Rock, Arkansas 72201, and THE BANK OF
NEW YORK, a New York banking corporation, having its
principal corporate trust office at 101 Barclay Street, New
York, New York 10286, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities") in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Securities are to be authenticated, issued
and delivered and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder
of a Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other
than the Company or an Affiliate of the Company) authorized
by the Trustee to act on behalf of the Trustee to authenti
cate one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a
Place of Payment or any other particular location specified
in the Securities or this Indenture, means any day, other
than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of
Payment or other location are generally authorized or
required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated
by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the
"Company" in the first paragraph of this Indenture until a
successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by an Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at 101 Barclay Street, 21 West, New York,
New York 10286.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified
in Section 307.
"Discount Security" means any Security which
provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802. "Interest" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated
Interest Rate.
"Dollar" or "$" means a dollar or other
equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment
of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency,
such other obligations or instruments as shall be
specified with respect to such Securities, as
contemplated by Section 301.
"Event of Default" with respect to Securities of
a particular series has the meaning specified in Section
801.
"Governmental Authority" means the government of
the United States or of any State or Territory thereof or of
the District of Columbia or of any county, municipality or
other political subdivision of any of the foregoing,
or any department, agency, authority or other
instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States
and entitled to the benefit of the full faith
and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of a particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"Officer's Certificate" means a certificate
signed by an Authorized Officer and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other
obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding
under this Indenture, or (except for purposes of
actions to be taken by Holders generally under
Section 812 or 813) all Outstanding Securities
of each such series and each such Tranche, as
the case may be, determined without regard to
this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in
determining whether the Trustee shall be pro
tected in relying upon any such request, demand,
authorization, direction, notice, consent or
waiver or upon any such determination as to the
presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities
so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to
such Securities and that the pledgee is not the
Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Dis
count Security that shall be deemed to be
Outstanding for such purposes shall be the
amount of the principal thereof that would be
due and payable as of the date of such
determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802;
and
(z) the principal amount of any
Security which is denominated in a currency
other than Dollars or in a composite currency
that shall be deemed to be Outstanding for such
purposes shall be the amount of Dollars which
could have been purchased by the principal
amount (or, in the case of a Discount Security,
the Dollar equivalent on the date determined as
set forth below of the amount determined as
provided in (y) above) of such currency or
composite currency evidenced by such Security,
in each such case certified to the Trustee in an
Officer's Certificate, based (i) on the average
of the mean of the buying and selling spot rates
quoted by 3 banks which are members of the New
York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time)
in The City of New York on the fifth Business
Day preceding any such determination or (ii) if
on such fifth Business Day it shall not be
possible or practicable to obtain such
quotations from such 3 banks, on such other
quotations or alternative methods of deter
mination which shall be as consistent as
practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of
Securities of a series from time to time any or all of the
specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon,
the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are
to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations
(other than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or assumed
by, the Company for borrowed money, including both senior
and subordinated indebtedness for borrowed money (other
than the Securities), or for the payment of money relating
to any lease which is capitalized on the consolidated
balance sheet of the Company and its subsidiaries in
accordance with generally accepted accounting principles
as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in
each case, amendments, renewals, extensions, modifications
and refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the
case of any particular indebtedness, obligation, renewal,
extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the
same expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not
superior in right of payment to or ranks pari passu with
the Securities.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means a
date fixed by the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether
fixed or variable) at which an obligation by its terms is
stated to bear simple interest. Any calculation or other
determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made
without regard to the effective interest cost to the
Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of,
any other indebtedness in respect of which the Company's
obligations are evidenced or secured in whole or in part
by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a)
are of the same series and (b) have identical terms except
as to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, as amended. or any successor
statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of
America, its Territories, its possessions and other areas
subject to its political jurisdiction.
SECTION 102. Compliance Certificates and
Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
(including any covenants compliance with which constitutes
a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of
this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to
Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to
the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
(i) determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, etc. to Trustee and
Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-2745
Telecopy: (212) 815-5915
If to the Company, to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Arkansas, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities;
Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of
Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in
the Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders, and so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York, except to the extent that the law
of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in
lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment
except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect, and in the same amount, as if
made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if
such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
Dated:
_________________________________
as Trustee
By:
___________________________
__
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. Prior to the authentication, issuance and
delivery of Securities of any series, there shall be
established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or
1206 and, except for any Securities which, pursuant
to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than
the Persons in whose names such Securities (or one
or more Predecessor Securities) are registered at
the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal
of the Securities of such series or any Tranche
thereof, is payable or any formulary or other method
or other means by which such date or dates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities
of such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at
which overdue principal shall bear interest, if
different from the rate or rates at which such
Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if
any), or any formulary or other method or other
means by which such rate or rates shall be
determined, by reference to an index or other fact
or event ascertainable outside this Indenture or
otherwise; the date or dates from which such
interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on
such Securities on any Interest Payment Date; the
right of the Company, if any, to extend the interest
payment periods and the duration of any such
extension as contemplated by Section 312; and the
basis of computation of interest, if other than as
provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such
series; and if such is the case, and if acceptable
to the Trustee, that the principal of such
Securities shall be payable without presentment or
surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option
of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series, or any Tranche thereof, pursuant to any
sinking fund or other analogous mandatory redemption
provisions or at the option of a Holder thereof and
the period or periods within which or the date or
dates on which, the price or prices at which and the
terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series,
or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a
coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company
or a Holder thereof, in securities or other
property, the type and amount of such securities or
other property, or the formulary or other method or
other means by which such amount shall be
determined, and the period or periods within which,
and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to
an index or other fact or event ascertainable
outside this Indenture, the manner in which such
amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six and
whether any such covenants may be waived pursuant to
Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company or
any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible Obligations
in respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any
additional or alternative provisions for the
reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of global form
and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause (g)
of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of transfer
or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment to
Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental hereto
or the Board Resolution which establishes such series, or
the Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of
such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall
be determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer or by the Secretary or an Assistant Secretary
of the Company. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or by the Secretary or
an Assistant Secretary of the Company shall bind the
Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing
the form or forms and terms of such series, as
provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which such
terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee,
for authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such
Securities have been duly authorized by the
Company and have been established in conformity
with the provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such
Securities shall have been established pursuant
to a Company Order or Orders or pursuant to
such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company
Order or Orders, all as contemplated by and in
accordance with the instrument or instruments
delivered pursuant to clause (a) above, such
terms will have been duly authorized by the
Company and will have been established in
conformity with the provisions of this
Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or specified procedures
referred to in paragraph (x) above and issued
and delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the Company,
entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to
laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially
or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable
to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the
date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee or an
Authenticating Agent by manual signature of an
authorized officer thereof, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and made available for delivery hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and made available for delivery
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to
have been authenticated and made available for
delivery hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and make available for delivery,
temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, after the preparation of defini
tive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall,
except as aforesaid, execute and the Trustee shall
authenticate and make available for delivery in ex
change therefor definitive Securities of the same series
and Tranche, of authorized denominations and of like ten
or and aggregate principal amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any
series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor
authenticated and made available for delivery here
under.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register (the
register kept in accordance with this Section being
referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities
of such series or any Tranche thereof and the
registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register
for the Securities of each series, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one of its
offices as the office in which the register with respect
to the Securities of one or more series shall be
maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such
series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and make available
for delivery, in the name of the designated
transferee or transferees, one or more new Securities of
the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series
and Tranche, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of
the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery,
the Securities which the Holder making the exchange
is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding
the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in ex
change therefor a new Security of the same series and
Tranche, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Security, a
new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone other than the Holder of
such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 312, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of
the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date and shall be
no longer payable pursuant to the following clause
(b).
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or
any Tranche thereof, denominated in any currency other
than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to
such Securities as contemplated by Section 301, the obli
gation of the Company to make any payment of the
principal thereof, or the premium or interest thereon,
shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is
in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate
to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctua
tion, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in
the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so
long as
no Event of Default shall have occurred and be
continuing with respect to the Securities of any
series hereunder, to extend interest payment periods on
all Securities of one or more series, or Tranches
thereof, if so specified as contemplated by Section 301
with respect to such Securities and upon such terms as
may be specified as contemplated by Section 301 with
respect to such Securities.
SECTION 313. CUSIP Numbers.
The Company in issuing Securities of any
series may use a ACUSIP@ number (if then generally in
use) and, if so, the Trustee shall use the CUSIP
number in notices of redemption or exchange as a
convenience to the Holders of the Securities of such
series; provided, that any such notice may state that no
such representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or in
the Securities of such series, and that reliance may be
placed only on the other identification numbers printed
on the Securities of such series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. Election to Redeem; Notice to
Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be
Redeemed.
If less than all the Securities of any series,
or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such
provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and
which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption
Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms
of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series,
or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall
be applied to the redemption of Securities of the series
or Tranche in respect of which it was made as provided
for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and
(b) may apply as a credit Securities of such series or
Tranche which have been redeemed either at the election
of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that
no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall
have been previously so applied. Securities so applied
shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such
Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking
Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, or
any Tranche thereof, the Company shall deliver to the
Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
or Tranche pursuant to Section 502 and stating the
basis for such credit and that such Securities have
not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver
such Officer's Certificate, the next
mandatory sinking fund payment for such series
or Tranche shall be made entirely in cash in the
amount of the mandatory sinking fund payment. Not
less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date
in the manner specified in Section 403 and cause
notice of the redemption thereof to be given in the
name of and at the expense of the Company in the
manner provided in Section 404. Such notice having
been duly given, the redemption of such Securities
shall be made upon the terms and in the manner
stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the Securities
of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such
Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected
and where notices and demands to or upon the Company in
respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice
to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and
of any change in the location of any such other office or
agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be
Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so
to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment
of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure by
the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b),
upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if
any, or interest has become due and payable shall be paid
to the Company on Company Request, or, if then held by
the Company, shall be discharged from such trust; and,
upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not
as a Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than September 15 in each year,
commencing September 15, 1996, the Company shall deliver
to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in (a) any covenant or restriction specified with
respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301 as being subject
to waiver pursuant to this Section 607, if before the
time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to
which compliance with such covenant or restriction is to
be omitted, considered as one class, shall, by Act of
such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the
Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act
of such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition; but, in the case of (a) or (b),
no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 608. Restriction on Payment of Dividends.
The Company shall not (a) declare or pay any
dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or (b) make any
payment of principal of or interest or premium, if any,
on or repay or repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or
junior in interest to the Securities or make any
guarantee payments with respect to the foregoing (other
than dividends or distributions in common stock of the
Company, and payments under any guarantee relating to
preferred securities of a trust to which debt securities
have been issued by the Company) if at such time (i)
there shall have occurred and be continuing a payment
default pursuant to Section 801(a) or 801(b) (whether
before or after expiration of any period of grace) or an
Event of Default hereunder, or (ii) the Company shall
have elected to extend any interest payment period as
provided in Section 311, and any such period, or any
extension thereof, shall be continuing.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of
Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment
thereof, will provide moneys which, together with
the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient,
or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions
thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall
have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such Securities,
a Company Order stating that the money and
Eligible Obligations deposited in accordance
with this Section shall be held in trust, as
provided in Section 703; and
(y) if Eligible Obligations shall
have been deposited, an Opinion of Counsel that
the obligations so deposited constitute
Eligible Obligations and do not contain
provisions permitting the redemption or other
prepayment at the option of the issuer thereof,
and an opinion of an independent public
accountant of nationally recognized standing,
selected by the Company, to the effect that the
requirements set forth in clause (b) above have
been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such Securities,
an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of
such Securities or portions thereof will have
been satisfied and discharged as contemplated
in this Section.
Upon the deposit of money or Eligible Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z), if required shall not have been delivered, such
Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions
thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of
the Company under Article Six (except the covenants
contained in Sections 602 and 603) or any other covenants
made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the Holders
of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series, or any Tranche thereof,
is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities
of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the
principal or interest received in respect of such
Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes,
to have been created as a result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable
Federal or State bankruptcy, insolvency or other similar
law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been
effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall
be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of
Indenture .
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall
be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or
interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in re
spect of which such deposit was made, all subject, how
ever, to the provisions of Section 603; provided, how
ever, that, so long as there shall not have occurred and
be continuing an Event of Default any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall,
to the extent practicable, be invested upon Company
Request and upon receipt of the documents referred to in
clause (y) of Section 701 in Eligible Obligations of the
type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as
shall be sufficient, together with any other moneys and
the principal of and interest on any other Eligible
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and inter
est earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred
and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one or
more of the following events which has occurred and is
continuing:
(a) failure to pay interest, if any, on any
Security of such series within 60 days after the
same becomes due and payable (whether or not payment
is prohibited by the provisions of Article Fifteen
hereof); provided, however, that a valid extension
of the interest payment period by the Company as
contemplated in Section 312 of this Indenture shall
not constitute a failure to pay interest for this
purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
(whether or not payment is prohibited by the
provisions of Article Fifteen hereof) when due and
payable; or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
of any substantial part of its property, or the
making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series as contemplated
by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or an Event of Default specified in Section
801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding
(considered as one class), and not the Holders of the
Securities of any one of such series, may declare the
principal of all Securities and interest accrued thereon
to be due and payable immediately (provided that the
payment of principal and interest on such Securities
shall remain subordinated to the extent provided in the
Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(a) the Company shall have paid or deposited
with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest , if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article
shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due
the Trustee under Section 907;
Second: To the payment of the amounts then
due and unpaid upon the Securities for principal of
and premium, if any, and interest, if any, in
respect of which or for the benefit of which such
money has been collected, ratably, without
preference or priority of any kind, according to the
amounts due and payable on such Securities for
principal, premium, if any, and interest, if any,
respectively; and
Third: To the payment of the remainder, if
any, to the Company or to whomsoever may be lawfully
entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture, and
could not involve the Trustee in personal liability
in circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event
of Default with respect to Securities of any series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture (but need not confirm or
investigate the accuracy of mathematical
calculations or other facts stated therein.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely
and shall be protected in acting or refraining from
acting in good faith upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document reasonably believed
by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel of
its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of
any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such Event
of Default shall have been given to the Trustee by
the Company, any other obligor on such Securities or
by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other
agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee for, and hold
it harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against
any claim or liability in connection with the
exercise or performance of any of its powers or
duties hereunder, except to the extent any such
loss, liability or expense may be attributable to
its negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting
Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least 6
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by
Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims
Against Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the
goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon
demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, or any Tranche thereof, which shall be authorized
to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance
and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series, or any Tranche thereof, shall be
made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
Dated:
________________________
As Trustee
By_____________________
_
As Authenticating
Agent
By_____________________
_
Authorized
Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 and
September 15 in each year, commencing September 15,
1996 and at such other times as the Trustee may
request in writing, the Company shall furnish or cause to
be furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall
preserve such information and similar information received
by it in any other capacity and afford to the Holders
access to information so preserved by it, all to such
extent, if any, and in such manner as shall be required by
the Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than ______________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders and the Commission, and the Company shall file
with the Trustee within 30 days after filing with the
Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders,
such other information, reports and other documents, if
any, at such times and in such manner, as shall be
required by the Trust Indenture Act.
To the extent required by the Trust Indenture
Act, the Company shall file with the Trustee the following
documents and reports within 30 days after such documents
or reports (or consolidated documents or reports
containing such documents or reports) are filed with the
Commission:
(a) The Company's annual reports on Form
10-K;
(b) The Company's quarterly reports on
Form 10-Q;
(c) The Company's current reports on Form
8-K; and
(d) Any other documents filed with the
Commission which are filed with or incorporated by
reference in the foregoing reports, related to the
Company, and have not previously been filed with the
Trustee.
To the extent that any of the foregoing
documents or reports are consolidated with similar
documents or reports filed by an affiliate, the Company
may file such consolidated document or report with the
Trustee in lieu of the separate document or report.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and validly existing under the laws
of the United States, any State thereof or the
District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if
any, on all Outstanding Securities and the
performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series or Tranche of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities, or any
Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or
any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class,
shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 312 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that
would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other
property), in which any Security or any premium or
the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any
Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the
consent of the Holder of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series or any
Tranche thereof, the consent of the Holders of which
is required for any such supplemental indenture, or
the consent of the Holders of which is required for
any waiver of compliance with any provision of this
Indenture or of any default hereunder and its conse
quences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Security
of such series or Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof
(except to increase the percentages in principal
amount referred to in this Section or such other
Sections or to provide that other provisions of this
Indenture cannot be modified or waived) without the
consent of the Holder of each Outstanding Security af
fected thereby; provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b)
and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental
Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture
Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche
thereof, authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall
so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be
Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other
place. Notice of every such meeting, setting forth
the time and the place of such meeting and in general
terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and
Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series and Tranches in the amount above
specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be
determined or approved by the Company, for such
meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches
thereof, shall be valid without notice if the Holders
of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at
Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series and Tranches with respect to which a meeting
shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be
taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In
the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the ad
journment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by
the chairman of the meeting prior to the adjournment of
such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided
in Section 1302(a) not less than 10 days prior to the date
on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with
respect to which such meeting shall have been called, con
sidered as one class; provided, however, that, except as
so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him;
provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting.
A record of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and
there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and
Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to
the prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of
Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Eligible Obligations pursuant to Section 701 (provided all
conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall
be subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company
Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior
Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ENTERGY ARKANSAS, INC.
By:______________________________
[SEAL]
ATTEST:
_______________________
THE BANK OF NEW YORK, Trustee
By:________________________
[SEAL]
ATTEST:
_______________________
STATE OF ____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Entergy Arkansas, Inc., one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF ____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, ____, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of The Bank of New York, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name
thereto by like authority.
________________________________
Notary Public
[Notarial Seal]