Exhibit 4.04
__________________________________________
ENTERGY LOUISIANA, INC.
TO
THE BANK OF NEW YORK_____________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of __________ 1, 1996
__________________________________________
ENTERGY LOUISIANA, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________ 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 ___________ 1, 1996,
between ENTERGY LOUISIANA, INC., a corporation duly
organized and existing under the laws of the State of
Louisiana (herein called the "Company"), having its
principal office at 639 Loyola Avenue, New Orleans,
Louisiana 70113, andPlease delete justification left code
when the Trustee is decided.THE BANK OF NEW
YORK_________________, corporation of the State of New
York____________________________, 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 any 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 admini
strative agency, regulatory authority or other govern
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Nine,
are defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Additional Interest" has the meaning specified in
Section 312.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or 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) au
thorized by the Trustee to act on behalf of the Trustee to
authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer,
any Assistant Treasurer, or any other duly authorized
officer of the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place
of Payment or any other particular location specified in
the Securities or this Indenture, means any day, other
than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of
Payment or other location are generally authorized or
required by law, regulation or executive order to remain
closed, except as may be otherwise specified as
contemplated by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended, or,
if at any time after the date of execution and delivery of
this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such
duties at such time.
"Company" means the Person named as the "Company"
in the first paragraph of this Indenture until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by an Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate
trust business shall be principally administered, which
office at the date of execution and delivery of this
Indenture is located at 101 Barclay Street, 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.
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at
the time shall be legal tender for the payment of public
and private debts.
"Event of Default" 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.
"Guarantee" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"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, have given any
request, demand, authorization, direction, notice,
consent or waiver hereunder or whether or not a quorum
is present at a meeting of Holders of Securities,
Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or
of such other obligor (unless the Company, such
Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or (except for
purposes of actions to be taken by Holders generally
under Section 812 or 813) all Outstanding Securities of
each such series, as the case may be, determined
without regard to this provision) shall be disregarded
and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Secu
rities which the Trustee knows to be so owned shall be
so disregarded; provided, however, that Securities so
owned which have been pledged in good faith may be re
garded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of
such other obligor; and provided, further, that, in the
case of any Security the principal of which is payable
from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed
to be Outstanding at any time for all purposes of this
Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of, and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places,
specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if
any, and interest, if any, on the Securities of such
series are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be
deemed (to the extent lawful) to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by the Trustee to administer its corporate trust
matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including
both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment of
money relating to any lease which is capitalized on the
consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the
Company unless, in the case of any particular
indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides
that such indebtedness, renewal, extension or refunding
is not superior in right of payment to or is pari passu
with the Securities; provided that the Company's
obligations under the Guarantee shall not be deemed to
be Senior Indebtedness.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal
of such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Trust" means Louisiana Capital I, Louisiana
Capital II, each a statutory business trust created
under the laws of the State of Delaware, or any other
Trust designated pursuant to Section 301 hereof or any
permitted successor under the Trust Agreement pertaining
to such Trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement, dated as of , 1996,
relating to Louisiana Capital I, the Amended and
Restated Trust Agreement, dated as of
_____________________, 1996, relating to Louisiana
Capital II or an Amended and Restated Trust Agreement
relating to a Trust designated pursuant to Section 301
hereof, in each case, among the Company, as Depositor,
the trustees named therein and several holders referred
to therein as they may be amended from time to time.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, 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 Section 901)
conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders
shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by
any Person of any such instrument or writing may
be proved by the affidavit of a witness of such
execution or by a certificate of a notary public
or other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may
be proved in any other manner which the Trustee
and the Company deem sufficient. Where such
execution is by a signer acting in a capacity
other than his individual capacity, such
certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount 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 Com
pany in reliance thereon, whether or not notation
of such action is made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated
by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such
Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which
such instrument was proven.
(f) Securities of any series authenticated
and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company
shall so determine, new Securities of any series
so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such
series.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act,
the Company may, at its option, by Board
Resolution, fix in advance a record date for the
determination of Holders entitled to give such
request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a
record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver
or other Act may be given before or after such
record date, but only the Holders of record at the
close of business on the record date shall be
deemed to be Holders for the purposes of (i)
determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may
revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, election, waiver or Act of
Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted
by facsimile transmission, telex or other direct
written electronic means to such telephone number or
other electronic communications address as the parties
hereto shall from time to time designate, or
transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below
or to such other address as either party hereto may
from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Attention:
Telephone:
Telecopy:
If to the Company, to:
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention:
Telephone:
Telecopy:
With a copy to:
Entergy Louisiana, 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, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided
herein, where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in
writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of
such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of
regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders
by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive
such notice, either before or after the event otherwise
to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the
validity of any action taken in reliance upon such
waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this
Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or 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;
provided, however, if the Property Trustee fails to
enforce its rights with respect to the Securities or
the related Trust Agreement, a holder of Preferred
Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's
rights with respect to the Securities or such Trust
Agreement, to the fullest extent permitted by law,
without first instituting any legal proceeding against
the Property Trustee or any other person or entity.
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 in the Board Resolution
or Officer's Certificate which establishes the terms of
the Securities of such series, which specifically
states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium,
if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding
Business Day at such Place of Payment, except that if
such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately
preceding Business Day, in each case with the same
force and effect, and in the same amount, as if made
on the Interest Payment Date or Redemption Date, or at
the Stated Maturity, 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.
_________________________________
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; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a
Trust of the proceeds of the issuance of Preferred
Securities of such Trust plus the amount deposited by
the Company with such Trust from time to time.
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 shall be payable on any Interest
Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of
business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal
of the Securities of such series is payable or any
formulary or other method or other means by which
such date or dates shall be determined, by
reference to an index or other fact or event
ascertainable outside this Indenture or otherwise
(without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the
Securities of such series shall bear interest, if
any (including the rate or rates at which overdue
principal shall bear interest, if different from
the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any),
or any formulary or other method or other means by
which such rate or rates shall be determined, by
reference to an index or other fact or event
ascertainable outside this Indenture or otherwise;
the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record
Date, if any, for the interest payable on such
Securities on any Interest Payment Date; the right
of the Company, if any, to extend the interest
payment periods and the duration of any such
extension as contemplated by Section 311; and the
basis of computation of interest, if other than as
provided in Section 310;
(f) the place or places at which or methods
by which (1) the principal of and premium, if any,
and interest, if any, on Securities of such series
shall be payable, (2) registration of transfer of
Securities of such series may be effected, (3)
exchanges of Securities of such series may be
effected and (4) notices and demands to or upon
the Company in respect of the Securities of such
series and this Indenture may be served; the
Security Registrar and Paying Agent or Agents for
such series; and if such is the case, and if
acceptable to the Trustee, that the principal of
such Securities shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or
the date or dates on which, the price or prices at
which and the terms and conditions upon which the
Securities of such series may be redeemed, in
whole or in part, at the option of the Company and
any restrictions on such redemptions, including
but not limited to a restriction on a partial
redemption by the Company of the Securities of any
series, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any,
of the Company to redeem or purchase the
Securities of such series pursuant to any sinking
fund or other analogous mandatory redemption
provisions or at the option of a Holder thereof
and the period or periods within which or the date
or dates on which, the price or prices at which
and the terms and conditions upon which such
Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of
such series shall be issuable if other than
denominations of $25 and any integral multiple
thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the
principal of and premium, if any, and interest, if
any, on the Securities of such series shall be
payable (if other than in Dollars);
(k) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated
to be payable, the period or periods within which
and the terms and conditions upon which, such
election may be made;
(l) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series are to be payable, or are to be payable at
the election of the Company or a Holder thereof,
in securities or other property, the type and
amount of such securities or other property, or
the formulary or other method or other means by
which such amount shall be determined, and the
period or periods within which, and the terms and
conditions upon which, any such election may be
made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series may be
determined with reference to an index or other
fact or event ascertainable outside this
Indenture, the manner in which such amounts shall
be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to
the Securities of such series, and any covenants
of the Company for the benefit of the Holders of
the Securities of such series, in addition to
those set forth in Article Six and whether any
such covenants may be waived pursuant to Section
607;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or
exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Government
Obligations in respect of the Securities of such
series denominated in a currency other than
Dollars or in a composite currency, and any
additional or alternative provisions for the
reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series are to
be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to
obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in
definitive form in lieu of global form and (iii)
any and all other matters incidental to such
Securities;
(s) if the Securities of such series are to
be issuable as bearer securities, any and all
matters incidental thereto which are not
specifically addressed in a supplemental indenture
as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant
to clause (r) of this paragraph, any limitations
on the rights of the Holders of the Securities of
such Series to transfer or exchange such
Securities or to obtain the registration of
transfer thereof; and if a service charge will be
made for the registration of transfer or exchange
of Securities of such series the amount or terms
thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series;
(v) the designation of the Trust to which
Securities of such series are to be issued; and
(w) any other terms of the Securities of
such series not inconsistent with the provisions
of this Indenture.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in
right of payment to Senior Indebtedness as provided in
Article Fifteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
the Securities of each series shall be issuable in
denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer or by the Secretary 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 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, establishing such terms;
(c) the Securities of such series, executed
on behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect
that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this
Indenture;
(ii) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee
and issued and delivered by the Company in
the manner and subject to any conditions
specified in such Opinion of Counsel, will
have been duly issued under this Indenture
and will constitute valid and legally binding
obligations of the Company, entitled to the
benefits provided by this Indenture, and
enforceable in accordance with their terms,
subject, as to enforcement, to laws relating
to or affecting generally the enforcement of
creditors' rights, including, without
limitation, bankruptcy and insolvency laws
and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required
to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will 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,
each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or 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 delivered
hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by
the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which
need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate
insertions, omissions, substitutions and other
variations as the officers executing such Securities
may determine, as evidenced by their execution of such
Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, after the preparation of definitive Securities
of such series, the temporary Securities of such series
shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon
such surrender of temporary Securities, the Company
shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor
definitive Securities of the same series, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered
hereunder.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept in one of
the offices designated pursuant to Section 602, with
respect to the Securities of each series, a register
(the register kept in accordance with this Section
being referred to as the "Security Register") in which,
subject to such reasonable regulations as it may
prescribe, the Company shall provide for the
registration of Securities of such series and the
registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register
for the Securities of each series, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one of its
offices as the office in which the register with
respect to the Securities of one or more series shall
be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such
series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a
Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new
Securities of the same series, of authorized denomina
tions and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any
registration of transfer or exchange of Securities
shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by
a written instrument of transfer in form satisfactory
to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series,
no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute
or to provide for the registration of transfer of or
the exchange of (a) Securities of any series during a
period of 15 days immediately preceding the date notice
is to be given identifying the serial numbers of such
series called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
new Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company
and the Trustee (a) evidence to their satisfaction of
the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may
be reasonably required by them to save each of them and
any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that
such Security is held by a Person purporting to be the
owner of such Security, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new
Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any
such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, interest on any Security which is payable, and
is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on
the Regular Record Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a date (herein called
a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of
such series and the date of the proposed payment,
and at the same time the Company shall deposit
with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such
money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the
expense of the Company, shall promptly cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address
of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or
their respective Predecessor Securities) are
registered at the close of business on such
Special Record Date 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, interest
on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day
months and for any period shorter than a full month.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of
one or more series, if so specified as contemplated by
Section 301 with respect to such Securities and upon
such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain
outstanding, if the Trust which issued such Preferred
Securities shall be required to pay, with respect to
its income derived from the interest payments on the
Securities of any series, any amounts for or on account
of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any
such case, the Company will pay as interest on such
series such additional interest ("Additional Interest")
as may be necessary in order that the net amounts
received and retained by such Trust after the payment
of such taxes, duties, assessments or governmental
charges shall result in such Trust's having such funds
as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental
charges.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of such series) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture
or (b) pursuant to an election of the Company which is
subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with
an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar
from the Outstanding Securities of such series not
previously called for redemption, by such method as
shall be provided for any particular series, or, in the
absence of any such provision, by such method of random
selection as the Trustee 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 any integral multiple thereof) of the
principal amount of Securities of such series of a
denomination larger than the minimum authorized
denomination for Securities of such series; provided,
however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase
all or any principal amount of the Securities then
Outstanding of any series, and less than all of such
Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the
Securities selected for redemption and, in the case of
any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series are to be redeemed, the identification of
the particular Securities to be redeemed and the
portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due
and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such
Securities are to be surrendered for payment of
the Redemption Price and accrued interest, if any,
unless it shall have been specified as
contemplated by Section 301 with respect to such
Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to
any Securities in accordance with Section 301, with
respect to any notice of redemption of Securities at
the election of the Company, unless, upon the giving of
such notice, such Securities shall be deemed to have
been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been
so received such notice shall be of no force or effect
and the Company shall not be required to redeem such
Securities. In the event that such notice of
redemption contains such a condition and such money is
not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption
was given, that such money was not so received and such
redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have
been redeemed shall promptly return to the Holders
thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the
name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense
of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in
such notice having been satisfied, the Securities or
portions thereof so to be redeemed shall, on the
Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after
such date (unless, in the case of an unconditional
notice of redemption, the Company shall default in the
payment of the Redemption Price and accrued interest,
if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with such notice, such Security or portion
thereof shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect
to such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest
on any Security the Stated Maturity of which
installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the
close of business on the related Regular Record Date
according to the terms of such Security and subject to
the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is
to be redeemed only in part at a Place of Payment
therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge,
a new Security or Securities of the same series, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
the Securities of any series, except as otherwise
specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any
mandatory sinking fund payment may be subject to
reduction as provided in Section 502. Each sinking
fund payment shall be applied to the redemption of
Securities of the series in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously
called for redemption) of a series in respect of which
a mandatory sinking fund payment is to be made and (b)
may apply as a credit Securities of such series which
have been redeemed either at the election of the
Company pursuant to the terms of such Securities or
through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities,
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, the
Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by
the payment of cash;
(e) the portion, if any, of such mandatory
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
pursuant to Section 502 and stating the basis for
such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be
so delivered. If the Company shall not deliver
such Officer's Certificate, the next mandatory
sinking fund payment for such series shall be made
entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 30 days
before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and
at the expense of the Company in the manner
provided in Section 404. Such notice having been
duly given, the redemption of such Securities
shall be made upon the terms and in the manner
stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any (including
Additional Interest), on the Securities of each series
in accordance with the terms of such Securities and
this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series an office or
agency where payment of such Securities shall be made,
where the registration of transfer or exchange of such
Securities may be effected and where notices and
demands to or upon the Company in respect of such
Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of
each such office or agency and prompt notice to the
Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect
of Securities of any series, or shall fail to furnish
the Trustee with the address thereof, payment of such
Securities shall be made, registration of transfer or
exchange thereof may be effected and notices and
demands in respect thereof may be served at the
Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, for
any or all of the foregoing purposes and may from time
to time rescind such designations; provided, however,
that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such
series, no such designation or rescission shall in any
manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each
Place of Payment for such Securities in accordance with
the requirements set forth above. The Company shall
give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in
Section 106, of any such designation or rescission and
of any change in the location of any such other office
or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company,
in which event the Company shall perform all functions
to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its
own Paying Agent with respect to the Securities of any
series, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided.
The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, it
shall, on or before each due date of the principal of
and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such 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, 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 any covenant or restriction
specified with respect to the Securities of any series,
as contemplated by Section 301 as being subject to
waiver pursuant to this Section 607, if before the time
for such compliance the Holders of at least a majority
in aggregate principal amount of the Outstanding
Securities of all series with respect to which
compliance with such covenant or restriction is to be
omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision
or condition and (b) Section 604, 605 or Article Eleven
if before the time for such compliance the Holders of
at least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision
or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the
obligations of the Company and the duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect;
provided, however, so long as a Trust holds Securities
of any series, such Trust may not waive compliance or
waive any default in compliance by the Company with any
covenant or other term contained in this Indenture or
the Securities of such series without the approval of
the holders of at least a majority in aggregate
liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as
provided in the Trust Agreement pertaining to such
Trust.
SECTION 608. Restriction on Payment of Dividends.
So long as any Preferred Securities of any
series remain outstanding, the Company shall not
declare or pay any dividend on, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or make any
guarantee payments with respect to the foregoing (other
than payments under the Guarantee relating to such
Preferred Securities) if at such time (a) the Company
shall be in default with respect to its payment or
other obligations under the Guarantee relating to such
Preferred Securities, (b) there shall have occurred and
be continuing a payment default (whether before or
after expiration of any period of grace) or an Event of
Default hereunder or (c) the Company shall have elected
to extend any interest payment period as provided in
Section 311, and any such period, or any extension
thereof, shall be continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall (i) maintain
direct or indirect ownership of all interests in the
Trust which issued such Preferred Securities, other
than such Preferred Securities, (ii) not voluntarily
(to the extent permitted by law) dissolve, liquidate or
wind up such Trust, except in connection with a
distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust,
(iii) remain the sole Depositor under the Trust
Agreement (the "Depositor") of such Trust and timely
perform in all material respects all of its duties as
Depositor of such Trust, and (iv) use reasonable
efforts to cause such Trust to remain a business trust
and otherwise continue to be treated as a grantor trust
for Federal income tax purposes provided that any
permitted successor to the Company under this Indenture
may succeed to the Company's duties as Depositor of
such Trust; and provided further that the Company may
permit such Trust to consolidate or merge with or into
another business trust or other permitted successor
under the Trust Agreement pertaining to such Trust so
long as the Company agrees to comply with this Section
609 with respect to such successor business trust or
other permitted successor.
SECTION 610. Rights of Holders of Preferred
Securities.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its
obligations under this Indenture will also be for the
benefit of the holders from time to time of Preferred
Securities, and the Company acknowledges and agrees
that if the Property Trustee fails to enforce its
rights with respect to the Securities or the related
Trust Agreement, a holder of Preferred Securities may
institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights with
respect to the Securities or such Trust Agreement, to
the fullest extent permitted by law, without first
instituting any legal proceeding against the Property
Trustee or any other person or entity.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Defeasance.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged,
if there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company),
in trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to
the Maturity of such Securities or portions
thereof, Government Obligations, which shall not
contain provisions permitting the redemption or
other prepayment thereof at the option of the
issuer thereof, the principal of and the interest
on which when due, without any regard to
reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall
be sufficient,
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision
for payment or redemption of less than all the
Securities of any series, such Securities or portions
thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of
such redemption shall have been given or irrevocable
authority shall have been given by the Company to the
Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee
and such Paying Agent:
(x) if such deposit shall have
been made prior to the Maturity of such
Securities, a Company Order stating that the
money and Government Obligations deposited in
accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Government Obligations
shall have been deposited, an Opinion of
Counsel that the obligations so deposited
constitute Government Obligations and do not
contain provisions permitting the redemption
or other prepayment at the option of the
issuer thereof, and an opinion of an
independent public accountant of nationally
recognized standing, selected by the Company,
to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have
been made prior to the Maturity of such
Securities, an Officer's Certificate stating
the Company's intention that, upon delivery
of such Officer's Certificate, its
indebtedness in respect of such Securities or
portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x),
(y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's
Certificate specified in clause (z), if required, shall
not have been delivered, such Securities or portions
thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of
such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture
or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and
603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by
Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are
deemed to have been paid for all purposes of this
Indenture.
If payment at Stated Maturity of less than
all of the Securities of any series is to be provided
for in the manner and with the effect provided in this
Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in
the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series.
In the event that Securities which shall be
deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been
satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within
the 60 day period commencing with the date of the
deposit of moneys or Government Obligations, as
aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities,
to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this
Indenture, as aforesaid, the obligations of the Company
and the Trustee in respect of such Securities under
Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article
Seven shall survive.
The Company shall pay, and shall indemnify
the Trustee or any Paying Agent with which Government
Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge
imposed on or assessed against such Government
Obligations or the principal or interest received in
respect of such Government Obligations, including, but
not limited to, any such tax payable by any entity
deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph),
the Trustee or any Paying Agent, as the case may be,
shall be required to return the money or Government
Obligations, or combination thereof, deposited with it
as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any
satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be
deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's
indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request
cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously
deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force
and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably
request to evidence and acknowledge the same.
Notwithstanding the satisfaction and
discharge of this Indenture as aforesaid, the
obligations of the Company and the Trustee under Sec
tions 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 Government Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest,
if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was
made, all subject, however, to the provisions of
Section 603; provided, however, that, so long as there
shall not have occurred and be continuing an Event of
Default any cash received from such principal or
interest payments on such Government Obligations, if
not then needed for such 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 Government Obligations of the type
described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts
as shall be sufficient together with any other moneys
and the principal of and interest on any other
Government Obligations then held by the Trustee to pay
when due the principal of and premium, if any, and
interest, if any, due and to become due on such
Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an
Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of
and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall
have occurred and be continuing, moneys to be paid over
to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or
cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to 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,
including any Additional Interest, 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 311 of this Indenture
shall not constitute a failure to pay interest for
this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
(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 nonpayment of the principal of Securities
of such series which shall have become due solely
by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause
(a) or (b) of Section 801 shall have occurred and be
continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of
the Securities of the series with respect to which such
Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the
extent permitted by law, interest on premium, if any,
and on any overdue principal and 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 effectual to protect and enforce any such
rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the
Securities shall then be due and payable as therein
expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in
order to have the claims of the Trustee (including
any claim for amounts due to the Trustee under
Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or
other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay
to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any
of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this
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 311) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such
Holder. Any holder of related Preferred Securities
shall have the right to institute suit for the
enforcement of any such payment to such holder with
respect to Securities relating to such Preferred
Securities having a principal amount equal to the
aggregate liquidation preference amount of the related
Preferred Securities held by 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 here
under, 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;
provided, however, that so long as a Trust holds the
Securities of any series, such Trust may not waive any
past default without the consent of at least a majority
in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining
to such Trust.
Upon any such waiver, such default shall
cease to exist, and any and all Events of Default
arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due
regard to the merits and good faith of the claims or
defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than
10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit
may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after
the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the
performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an
Event of Default with respect to Securities of any
series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed
therein, upon certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred
and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of
the rights and powers vested in it by this
Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability
for its own negligent action, its own negligent
failure to act, or its own wilful misconduct,
except that
(1) this subsection shall not be
construed to limit the effect of subsection
(a) of this Section;
(2) the Trustee shall not be
liable for any error of judgment made in good
faith by a Responsible Officer, unless it
shall be proved that the Trustee was
negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be
liable with respect to any action taken or
omitted to be taken by it in good faith in
accordance with the direction of the Holders
of a majority in principal amount of the
Outstanding Securities of any one or more
series, as provided herein, relating to the
time, method and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust or power
conferred upon the Trustee, under this
Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk
its own funds or otherwise incur any
financial liability in the performance of any
of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall
have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture
relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series
to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of
any default of the character specified in Section
801(c), no such notice to Holders shall be given until
at least 75 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time, or
both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and
to the applicable provisions of the Trust Indenture
Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting in
good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, deben
ture, 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, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in
it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless
such Holder shall have offered to the Trustee
reasonable security or indemnity against the
costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to
examine, during normal business hours, the books,
records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
of the Event of Default or (2) written notice of
such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness.
The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any
other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 908
and 913, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any moneys
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and
advances reasonably incurred or made by the
Trustee in accordance with any provision of this
Indenture (including the reasonable compensation
and the expenses and disbursements of its agents
and counsel), except to the extent that any such
expense, disbursement or advance may be
attributable to its negligence, wilful misconduct
or bad faith; and
(c) indemnify the Trustee 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. The Trust Agreement and the Guarantee
Agreement pertaining to each Trust shall be deemed to
be specifically described in this Indenture for the
purposes of clause (i) of the first proviso contained
in Section 310(b) of the Trust Indenture Act.
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 corpora
tion publishes reports of condition at least annually,
pursuant to law or to the requirements of such
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign
immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the
acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of
Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Trustee and to the Company; provided that so long
as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall
not execute any Act to remove the Trustee without the
consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued
by such Trust outstanding, obtained as provided in
the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 33% in principal
amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee,
jointly with the Trustee, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company
does not join in such appointment within 15 days after
the receipt by it of a request so to do, or if an Event
of Default shall have occurred and be continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the
Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held
by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall
be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and
obligations shall be exercised and performed by such
co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument
in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under
this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation
organized and doing business under the laws of the United
States, any State or territory thereof or the District of
Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so pub
lished. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By_____________________
As Authenticating
Agent
By_____________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 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 per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a
noncertificated system of registration for all, or
any series of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
and this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series in any
material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the
Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series (or, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, except to increase the
percentages in principal amount referred to in this
Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, how
ever, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities then outstanding which would be affected
thereby, considered as one class. A supplemental
indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate 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 may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the
case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved
by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In
any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any
meeting adjourned for more than 30 days shall be given as
provided in Section 1302(a) not less than 10 days prior to
the date on which the meeting is scheduled to be recon
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series represented at
the meeting, considered as one class; and the meeting
may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and 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
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article 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.
_________________________
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 LOUISIANA, INC.
By:
ATTEST:
____________________________
_________________________________, Trustee
By:
ATTEST:
_____________________________
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the _____ day of ___________, 1996, before me
personally came ____________________________, to me known,
who, being by me duly sworn, did depose and say that he is
the ________________ of Entergy Louisiana, 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
Parish of Orleans, State of
Louisiana
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________, 1996,
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, State of New York