Exhibit 4(c)
__________________________________________
ENTERGY MISSISSIPPI, INC.
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ______________, _____
__________________________________________
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. DEFINITIONS. 1
"ACT" 2
"AFFILIATE" 2
"AUTHENTICATING AGENT" 2
"AUTHORIZED OFFICER" 2
"BOARD OF DIRECTORS" 3
"BOARD RESOLUTION" 3
"BUSINESS DAY" 3
"COMMISSION" 3
"COMPANY" 3
"COMPANY REQUEST OR COMPANY ORDER" 3
"CORPORATE TRUST OFFICE" 3
"CORPORATION" 3
"DEFAULTED INTEREST" 4
"DISCOUNT SECURITY" 4
"DOLLAR" OR "$" 4
"ELIGIBLE OBLIGATIONS" 4
"EVENT OF DEFAULT" 4
"GOVERNMENTAL AUTHORITY" 4
"GOVERNMENT OBLIGATIONS" 4
"HOLDER" 5
"INDENTURE" 5
"INTEREST PAYMENT DATE" 5
"MATURITY" 5
"OFFICER'S CERTIFICATE" 5
"OPINION OF COUNSEL" 5
"OUTSTANDING" 6
"PAYING AGENT" 7
"PERIODIC OFFERING" 7
"PERSON" 7
"PLACE OF PAYMENT" 7
"PREDECESSOR SECURITY" 7
"REDEMPTION DATE" 8
"REDEMPTION PRICE" 8
"REGULAR RECORD DATE" 8
"REQUIRED CURRENCY" 8
"RESPONSIBLE OFFICER" 8
"SECURITIES" 8
"SECURITY REGISTER AND SECURITY REGISTRAR" 8
"SPECIAL RECORD DATE" 8
"STATED INTEREST RATE" 8
"STATED MATURITY" 9
"TRANCHE" 9
"TRUST INDENTURE ACT" 9
"TRUSTEE" 9
"UNITED STATES" 9
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. 9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. 10
SECTION 104. ACTS OF HOLDERS. 11
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY. 13
SECTION 106. NOTICE TO HOLDERS OF SECURITIES;
WAIVER. 13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT. 14
SECTION 108. EFFECT OF HEADINGS AND TABLE OF
CONTENTS. 14
SECTION 109. SUCCESSORS AND ASSIGNS. 14
SECTION 110. SEPARABILITY CLAUSE. 14
SECTION 111. BENEFITS OF INDENTURE. 14
SECTION 112. GOVERNING LAW. 15
SECTION 113. LEGAL HOLIDAYS. 15
ARTICLE TWO 15
SECURITY FORMS 15
SECTION 201. FORMS GENERALLY. 15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. 16
ARTICLE THREE 16
THE SECURITIES 16
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. 16
SECTION 302. DENOMINATIONS. 20
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING. 20
SECTION 304. TEMPORARY SECURITIES. 23
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER
AND EXCHANGE. 24
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. 25
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED. 26
SECTION 308. PERSONS DEEMED OWNERS. 27
SECTION 309. CANCELLATION BY SECURITY REGISTRAR. 27
SECTION 310. COMPUTATION OF INTEREST. 28
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY. 28
ARTICLE FOUR 28
REDEMPTION OF SECURITIES 28
SECTION 401. APPLICABILITY OF ARTICLE. 28
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE. 28
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED. 29
SECTION 404. NOTICE OF REDEMPTION. 29
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE. 31
SECTION 406. SECURITIES REDEEMED IN PART. 31
ARTICLE FIVE 32
SINKING FUNDS 32
SECTION 501. APPLICABILITY OF ARTICLE. 32
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES. 32
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING
FUND. 32
ARTICLE SIX 33
COVENANTS 33
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND
INTEREST. 33
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY. 33
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE
HELD IN TRUST. 34
SECTION 604. CORPORATE EXISTENCE. 36
SECTION 605. MAINTENANCE OF PROPERTIES. 36
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO
COMPLIANCE. 36
SECTION 607. WAIVER OF CERTAIN COVENANTS. 36
ARTICLE SEVEN 37
SATISFACTION AND DISCHARGE 37
SECTION 701. SATISFACTION AND DISCHARGE OF
SECURITIES. 37
SECTION 702. SATISFACTION AND DISCHARGE OF
INDENTURE. 39
SECTION 703. APPLICATION OF TRUST MONEY. 40
ARTICLE EIGHT 41
EVENTS OF DEFAULT; REMEDIES 41
SECTION 801. EVENTS OF DEFAULT. 41
SECTION 802. ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT. 42
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE. 43
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM. 44
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES. 45
SECTION 806. APPLICATION OF MONEY COLLECTED. 45
SECTION 807. LIMITATION ON SUITS. 46
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND INTEREST 46
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES. 47
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE. 47
SECTION 811. DELAY OR OMISSION NOT WAIVER. 47
SECTION 812. CONTROL BY HOLDERS OF SECURITIES. 47
SECTION 813. WAIVER OF PAST DEFAULTS. 48
SECTION 814. UNDERTAKING FOR COSTS. 48
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS. 49
ARTICLE NINE 49
THE TRUSTEE 49
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES. 49
SECTION 902. NOTICE OF DEFAULTS. 50
SECTION 903. CERTAIN RIGHTS OF TRUSTEE. 51
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES. 52
SECTION 905. MAY HOLD SECURITIES. 52
SECTION 906. MONEY HELD IN TRUST. 52
SECTION 907. COMPENSATION AND REIMBURSEMENT. 52
SECTION 908. DISQUALIFICATION; CONFLICTING
INTERESTS. 53
SECTION 909. CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY. 53
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. 54
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. 56
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. 57
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY. 58
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES. 58
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT. 60
ARTICLE TEN 62
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 62
SECTION 1001. LISTS OF HOLDERS. 62
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY. 62
ARTICLE ELEVEN 62
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER 62
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS. 62
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED. 63
ARTICLE TWELVE 63
SUPPLEMENTAL INDENTURES 63
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS. 63
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT
OF HOLDERS. 66
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES. 67
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES. 67
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT. 68
SECTION 1206. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES. 68
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL
INDENTURE. 68
ARTICLE THIRTEEN 68
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING 68
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE
CALLED. 68
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS. 69
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. 69
SECTION 1304. QUORUM; ACTION. 70
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION
OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. 71
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. 72
SECTION 1307. ACTION WITHOUT MEETING. 72
ARTICLE FOURTEEN 72
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 72
SECTION 1401. LIABILITY SOLELY CORPORATE. 72
<PAGE>
ENTERGY MISSISSIPPI, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, _____
Trust Indenture Act Section Indenture
Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
INDENTURE, dated as of _________________,
between ENTERGY MISSISSIPPI, INC., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the Company), having its
principal office at 639 Loyola Avenue, New Orleans,
Louisiana 70113, and
_______________________________________, a
_____________________, having its principal corporate
trust office at ______________________________, as Trustee
(herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance
from time to time of its unsecured 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:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or
of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have
the meanings assigned to them in this Article and
include the plural as well as the singular;
(b) all terms used herein without
definition which are defined in the Trust Indenture
Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise
defined herein have the meanings assigned to them in
accordance with generally accepted accounting
principles in the United States, and, except as
otherwise herein expressly provided, the term
"generally accepted accounting principles" with
respect to any computation required or permitted
hereunder shall mean such accounting principles as
are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the
execution and delivery of this Indenture; provided,
however, that in determining generally accepted
accounting principles applicable to the Company, the
Company shall, to the extent required, conform to any
order, rule or regulation of any administrative
agency, regulatory authority or other governmental
body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and
"hereunder" and other words of similar import refer
to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine,
are defined in that Article.
"Act"
, when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Affiliate"
of any specified Person means any other Person
directly or indirectly controlling or controlled by or
under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent"
means any Person (other than the Company or an Affiliate
of the Company) authorized by the Trustee to act on behalf
of the Trustee to authenticate one or more series of
Securities.
"Authorized Officer"
means the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, or any
other duly authorized officer of the Company.
"Board of Directors"
means either the board of directors of the Company or any
committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"Board Resolution"
means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and
delivered to the Trustee.
"Business Day"
, when used with respect to a Place of Payment or any
other particular location specified in the Securities or
this Indenture, means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions
or trust companies in such Place of Payment or other
location are generally authorized or required by law,
regulation or executive order to remain closed, except as
may be otherwise specified as contemplated by Section 301.
"Commission"
means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange
Act of 1934, or, if at any time after the date of
execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"Company"
means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request or Company Order"
means a written request or order signed in the name of the
Company by an Authorized Officer and delivered to the
Trustee.
"Corporate Trust Office"
means the office of the Trustee at which at any particular
time its corporate trust business shall be principally
administered, which office at the date of execution and
delivery of this Indenture is located at
____________________________________.
"Corporation"
means a corporation, association, company, joint stock
company or business trust.
"Defaulted Interest"
has the meaning specified in Section 307.
"Discount Security"
means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such
Security at a Stated Interest Rate.
"Dollar" or "$"
means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Eligible Obligations"
means:
(a) with respect to Securities denominated
in Dollars, Government Obligations; or
(b) with respect to Securities denominated
in a currency other than Dollars or in a composite
currency, such other obligations or instruments as
shall be specified with respect to such Securities,
as contemplated by Section 301.
"Event of Default"
has the meaning specified in Section 801.
"Governmental Authority"
means the government of the United States or of any State
or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of
any thereof, or any department, agency, authority or other
instrumentality of any of the foregoing.
"Government Obligations"
means:
(a) direct obligations of, or obligations
the principal of and interest on which are
unconditionally guaranteed by, the United States and
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct ownership
interest in obligations described in clause (a) above
or in any specific interest or principal payments due
in respect thereof; provided, however, that the
custodian of such obligations or specific interest or
principal payments shall be a bank or trust company
(which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or
examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except
as may be otherwise required by law, such custodian
shall be obligated to pay to the holders of such
certificates, depositary receipts or other
instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Holder"
means a Person in whose name a Security is
registered in the Security Register.
"Indenture"
means this instrument as originally executed and delivered
and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall
include the terms of 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 or
delivered to the Security Registrar for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid
pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company
or any other obligor upon the Securities or
any Affiliate of the Company or of such
other obligor (unless the Company, such
Affiliate or such obligor owns all
Securities Outstanding under this
Indenture, or all Outstanding Securities of
each such series and each such Tranche, as
the case may be, determined without regard
to this clause (x)) shall be disregarded
and deemed not to be Outstanding, except
that, in determining whether the Trustee
shall be protected in relying upon any such
request, demand, authorization, direction,
notice, consent or waiver or upon any such
determination as to the presence of a
quorum, only Securities which the Trustee
knows to be so owned shall be so
disregarded; provided, however, that
Securities so owned which have been pledged
in good faith may be regarded as
Outstanding if the pledgee establishes to
the satisfaction of the Trustee the
pledgee's right so to act with respect to
such Securities and that the pledgee is not
the Company or any other obligor upon the
Securities or any Affiliate of the Company
or of such other obligor; and
(y) the principal amount of a
Discount Security that shall be deemed to
be Outstanding for such purposes shall be
the amount of the principal thereof that
would be due and payable as of the date of
such determination upon a declaration of
acceleration of the Maturity thereof
pursuant to Section 802;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Paying Agent"
means any Person, including the Company, authorized by the
Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the
Company.
"Periodic Offering"
means an offering of Securities of a series from time to
time any or all of the specific terms of which Securities,
including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or
Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company
or its agents upon the issuance of such Securities.
"Person"
means any individual, corporation, partnership, limited
liability company, limited liability partnership, joint
venture, trust or unincorporated organization or any
Governmental Authority.
"Place of Payment"
, when used with respect to the Securities of any series,
or Tranche thereof, means the place or places, specified
as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or
Tranche are payable.
"Predecessor Security"
of any particular Security means every previous Security
evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated
and delivered under Section 306 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security shall
be deemed (to the extent lawful) to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date"
, when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price"
, when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date"
for the interest payable on any Interest Payment Date on
the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Required Currency"
has the meaning specified in Section 311.
"Responsible Officer"
, when used with respect to the Trustee, means any officer
of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities"
has the meaning stated in the first recital of this
Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Security Register and Security Registrar"
have the respective meanings specified in Section 305.
"Special Record Date"
for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Interest Rate"
means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest.
Any calculation or other determination to be made under
this Indenture by reference to the Stated Interest Rate on
a Security shall be made without regard to the effective
interest cost to the Company of such Security and without
regard to the Stated Interest Rate on, or the effective
cost to the Company of, any other indebtedness in respect
of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"Stated Maturity"
, when used with respect to any obligation or any
installment of principal thereof or interest thereon,
means the date on which the principal of such obligation
or such installment of principal or interest is stated to
be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension).
"Tranche"
means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal
amount and/or date of issuance.
"Trust Indenture Act"
means, as of any time, the Trust Indenture Act of 1939, or
any successor statute, as in effect at such time.
"Trustee"
means the Person named as the Trustee in the first
paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series
of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States"
means the United States of America, its Territories, its
possessions and other areas subject to its political
jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in
the case of any such application or request as to which
the furnishing of such documents is specifically required
by any provision of this Indenture relating to such
particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing
such certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of
each such Person, such Person has made such
examination or investigation as is necessary to
enable such Person to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such Person, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect to
the document or instrument for which it is substituted.
Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been taken
had the original document or instrument not contained such
error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent
that such action was a result of willful misconduct or bad
faith. Without limiting the generality of the foregoing,
any Securities issued under the authority of such
defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits
of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given
or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent
duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of
such instruments and any such record. Except as
herein otherwise expressly provided, such action
shall become effective when such instrument or
instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and
any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section
901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall
be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by
any Person of any such instrument or writing may be
proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the
Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as
otherwise contemplated in clause (y) of the proviso
to the definition of Outstanding) and serial numbers
of Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or other
Act of a Holder shall bind every future Holder of the
same Security and the Holder of every Security issued
upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such
Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with respect
to the requisite percentage of principal amount of
Securities for the action contemplated by such
instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument
was proven.
(f) Securities of any series, or any
Tranche thereof, authenticated and delivered after
any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee
and the Company, to such action may be prepared and
executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the
Company may, at its option, 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 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.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company by
the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other
direct written electronic means to such telephone number
or other electronic communications address as the parties
hereto shall from time to time designate, or transmitted
by registered mail, charges prepaid, to the applicable
address set opposite such party's name below or to such
other address as either party hereto may from time to time
designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Entergy Mississippi, 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 the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder and the
Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York, except to the extent that the law
of any other jurisdiction shall be mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in
lieu of this Section) payment of interest or principal and
premium, if any, need not be made at such Place of Payment
on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and, if such
payment is made or duly provided for on such Business Day,
no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to
such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules
of any securities exchange or as may, consistently
herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any
series are established in a Board Resolution or in an
Officer's Certificate pursuant to a Board Resolution, such
Board Resolution and Officer's Certificate, if any, shall
be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
____________________________
as Trustee
By:_________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such
series (which shall distinguish the Securities of
such series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1206 and,
except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without
specific identification) to whom interest on
Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if
other than the Persons in whose names such Securities
(or one or more Predecessor Securities) are
registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the
principal of the Securities of such series or any
Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates
shall be determined, by reference to an index or
other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any
provisions for redemption, prepayment, acceleration,
purchase or extension);
(e) the rate or rates at which the
Securities of such series, or any Tranche thereof,
shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest,
if different from the rate or rates at which such
Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if
any), or any formulary or other method or other means
by which such rate or rates shall be determined, by
reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise;
the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record
Date, if any, for the interest payable on such
Securities on any Interest Payment Date; and the
basis of computation of interest, if other than as
provided in Section 310;
(f) the place or places at which or
methods by which (1) the principal of and premium, if
any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security
Registrar for such series; and if such is the case,
that the principal of such Securities shall be
payable without presentment or surrender thereof;
(g) the period or periods within which, or
the date or dates on which, the price or prices at
which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option
of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company of
the Securities of any series, or any Tranche thereof,
resulting in delisting of such Securities from any
national exchange;
(h) the obligation or obligations, if any,
of the Company to redeem or purchase the Securities
of such series, or any Tranche thereof, pursuant to
any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and
the period or periods within which or the date or
dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall
be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities
of such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the
principal of and premium, if any, and interest, if
any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable, at
the election of the Company or a Holder thereof, in a
coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if
any, or interest on the Securities of such series, or
any Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder
thereof, in securities or other property, the type
and amount of such securities or other property, or
the formulary or other method or other means by which
such amount shall be determined, and the period or
periods within which, and the terms and conditions
upon which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if any,
on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index
or other fact or event ascertainable outside this
Indenture, the manner in which such amounts shall be
determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in
addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which
the Securities of such series, or any Tranche
thereof, may be converted into or exchanged for
shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if
any, which shall be considered to be Eligible
Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a
currency other than Dollars or in a composite
currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in
Section 701;
(r) if the Securities of such series, or
any Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of temporary form
and (iii) any and all other matters incidental to
such Securities;
(s) if the Securities of such series, or
any Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause (g)
of Section 1201;
(t) to the extent not established pursuant
to clause (r) of this paragraph, any limitations on
the rights of the Holders of the Securities of such
Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of transfer
or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof;
(v) any collateral security, assurance or
guarantee for the Securities of such series; and
(w) any other terms of the Securities of
such series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental hereto
or the Board Resolution which establishes such series, or
the Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of such
series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall
be determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer. The signature of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time or
from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments
establishing the form or forms and terms of such
series, as provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities shall
not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such
terms or (ii) in the case of Securities of a series
subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which such
terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent
or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in
either case in accordance with the instrument or
instruments delivered pursuant to clause (a) above;
(c) the Securities of such series,
executed on behalf of the Company by an Authorized
Officer;
(d) an Opinion of Counsel to the effect
that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this
Indenture;
(ii) the terms of such Securities
have been duly authorized by the Company
and have been established in conformity
with the provisions of this Indenture; and
(iii) such Securities, when
authenticated and delivered by the Trustee
and issued and delivered by the Company in
the manner and subject to any conditions
specified in such Opinion of Counsel, will
have been duly issued under this Indenture
and will constitute valid and legally
binding obligations of the Company,
entitled to the benefits provided by this
Indenture, and enforceable in accordance
with their terms, subject, as to
enforcement, to laws relating to or
affecting generally the enforcement of
creditors' rights, including, without
limitation, bankruptcy and insolvency laws
and to general principles of equity
(regardless of whether such enforceability
is considered in a proceeding in equity or
at law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel
may opine that:
(x) when the terms of such Securities
shall have been established pursuant to a
Company Order or Orders or pursuant to such
procedures (acceptable to the Trustee) as
may be specified from time to time by a
Company Order or Orders, all as
contemplated by and in accordance with the
instrument or instruments delivered
pursuant to clause (a) above, such terms
will have been duly authorized by the
Company and will have been established in
conformity with the provisions of this
Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee
in accordance with this Indenture and the
Company Order or Orders or specified
procedures referred to in paragraph (x)
above and issued and delivered by the
Company in the manner and subject to any
conditions specified in such Opinion of
Counsel, will have been duly issued under
this Indenture and will constitute valid
and legally binding obligations of the
Company, entitled to the benefits provided
by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or
affecting generally the enforcement of
creditors' rights, including, without
limitation, bankruptcy and insolvency laws
and to general principles of equity
(regardless of whether such enforceability
is considered in a proceeding in equity or
at law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively rely,
as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon
the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first
authentication of Securities of such series unless and
until such opinion or other documents have been superseded
or revoked or expire by their terms. In connection with
the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate
any rules, regulations or orders of any Governmental
Authority having jurisdiction over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the date
of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent
by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities
of any series, or any Tranche thereof, the Company may
execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in
lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, after the preparation of
definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall,
except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive
Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect to
the Securities of each series or any Tranche thereof, a
register (all registers kept in accordance with this
Section being collectively referred to as the "Security
Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide
for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The
Company shall designate one Person to maintain the
Security Register for the Securities of each series on a
consolidated basis, 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 or more of its offices as an
office in which a register with respect to the Securities
of one or more series, or any Tranche or Tranches thereof,
shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of such
series. The Security Register shall be open for
inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, upon surrender for registration of
transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or
Tranche, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of
the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, any Security of such series or
Tranche may be exchanged at the option of the Holder, for
one or more new Securities of the same series and Tranche,
of authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the
Company, the Trustee or the Security Registrar, as the
case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to
Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding
the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche called
for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and Tranche, and of like tenor
and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security is
held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series
and Tranche, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time
enforceable by anyone other than the Holder of such new
Security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and
proportionately with any and all other Securities of such
series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series which
is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable
to the Holder on the related Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company may elect to make payment
of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on a date (herein called a
"Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at
the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall
promptly cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal
of and premium, if any, and (subject to Sections 305 and
307) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche
thereof, interest on the Securities of each series shall
be computed on the basis of a 360-day year consisting of
twelve 30-day months and with respect to any period
shorter than a full month, on the basis of the actual
number of days elapsed in such period.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or
any Tranche thereof, denominated in any currency other
than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to
such Securities as contemplated by Section 301, the
obligation of the Company to make any payment of the
principal thereof, or the premium or interest thereon,
shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other
than the Required Currency, except to the extent that such
tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due
and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange
such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount
of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except
in the case of its negligence or willful misconduct.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section
301 for Securities of such series or Tranche) in
accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such 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,
or any Tranche thereof, are to be redeemed, the particular
Securities to be redeemed shall be selected by the
Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by
such method as shall be provided for any particular
series, or, in the absence of any such provision, by such
method of random selection as the Security Registrar shall
deem fair and appropriate and which may, in any case,
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities of
such series or Tranche of a denomination larger than the
minimum authorized denomination for Securities of such
series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall
have offered to purchase all or any principal amount of
the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as
to which such offer was made shall have been tendered to
the Company for such purchase, the Security Registrar, if
so directed by Company Order, shall select for redemption
all or any principal amount of such Securities which have
not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any Securities
selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any
series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest, if
any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such
Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any, unless
it shall have been specified as contemplated by
Section 301 with respect to such Securities that such
surrender shall not be required,
(f) that the redemption is for a sinking
or other fund, if such is the case, and
(g) such other matters as the Company
shall deem desirable or appropriate.
(h) Unless otherwise specified with
respect to any Securities in accordance with Section
301, with respect to any notice of redemption of
Securities at the election of the Company, unless,
upon the giving of such notice, such Securities shall
be deemed to have been paid in accordance with
Section 701, such notice may state that such
redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if
any, and interest, if any, on such Securities and
that if such money shall not have been so received
such notice shall be of no force or effect and the
Company shall not be required to redeem such
Securities. In the event that such notice of
redemption contains such a condition and such money
is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall
be given, in the manner in which the notice of
redemption was given, that such money was not so
received and such redemption was not required to be
made, and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such
Securities which had been surrendered for payment
upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice of
non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the Company
shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to the
Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of
such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or
Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of
any series, or any Tranche thereof, is herein referred to
as an "optional sinking fund payment." If provided for by
the terms of Securities of any series, or any Tranche
thereof, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 502. Each
sinking fund payment shall be applied to the redemption of
Securities of the series or Tranche in respect of which it
was made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called
for redemption) of a series or Tranche in respect of which
a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche
which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of such mandatory
sinking fund payment; provided, however, that no
Securities shall be applied in satisfaction of a mandatory
sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be
received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any
Tranche thereof, the Company shall deliver to the Trustee
an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by the
payment of cash; and
(e) the portion, if any, of such aggregate
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis
for such credit and that such Securities have not
previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so
delivered.
If the Company shall not deliver such Officer's
Certificate, the next succeeding sinking fund payment for
such series or Tranche shall be made entirely in cash in
the amount of the mandatory sinking fund payment. Not
less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
404. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the Securities
of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such
Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected
and where notices and demands to or upon the Company in
respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice
to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or shall
fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices
and demands in respect thereof may be served at the
Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate
one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof,
for any or all of the foregoing purposes and may from time
to time rescind such designations; provided, however,
that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series
or Tranche, no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of
Payment for such Securities in accordance with the
requirements set forth above. The Company shall give
prompt written notice to the Trustee, and prompt notice to
the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding,
any office or agency required by this Section may be
maintained at an office of the Company, in which event the
Company shall perform all functions to be performed at
such office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any series,
or any Tranche thereof, it shall, on or before each due
date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of
any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such sums to be
held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the
payment of the principal of and premium, if any, or
interest, if any, on such Securities in trust for the
benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any failure
by the Company (or any other obligor upon such
Securities) to make any payment of principal of or
premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of
any such 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 __________________ in each year,
commencing _______________, the Company shall deliver to
the Trustee an Officer's Certificate which need not comply
with Section 102, executed by the principal executive
officer, the principal financial officer or the principal
accounting officer of the Company, as to such officer's
knowledge of the Company's compliance with all conditions
and covenants under this Indenture, such compliance to be
determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in (a) Section 602 or any additional covenant or
restriction specified with respect to the Securities of
any series, or any Tranche thereof, as contemplated by
Section 301 if before the time for such compliance the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with
respect to which compliance with Section 602 or such
additional 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 a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case
of (a) or (b), no such waiver shall extend to or affect
such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have been
paid for all purposes of this Indenture, and the entire
indebtedness of the Company in respect thereof shall be
deemed to have been satisfied and discharged, if there
shall have been irrevocably deposited with the Trustee or
any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior to
the Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain
provisions permitting the redemption or other
prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money,
if any, deposited with or held by the Trustee or such
Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which
shall be sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities
or portions thereof on or prior to Maturity; provided,
however, that in the case of the provision for payment or
redemption of less than all the Securities of any series
or Tranche, such Securities or portions thereof shall have
been selected by the Security Registrar as provided herein
and, in the case of a redemption, the notice requisite to
the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company
to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that
the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been
made prior to the Maturity of such
Securities, a Company Order stating that
the money and Eligible Obligations
deposited in accordance with this Section
shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall
have been deposited, an Opinion of Counsel
that the obligations so deposited
constitute Eligible Obligations and do not
contain provisions permitting the
redemption or other prepayment at the
option of the issuer thereof, and an
opinion of an independent public accountant
of nationally recognized standing, selected
by the Company, to the effect that the
requirements set forth in clause (b) above
have been satisfied; and
(z) if such deposit shall have been
made prior to the Maturity of such
Securities, an Officer's Certificate
stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities
or portions thereof will have been
satisfied and discharged as contemplated in
this Section.
Upon the deposit of money or Eligible
Obligations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for any
reason, the Officer's Certificate specified in clause (z)
shall not have been delivered, such Securities or portions
thereof shall nevertheless be deemed to have been paid for
all purposes of this Indenture, and the Holders of such
Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of
any of the covenants of the Company under Article Six
(except the covenants contained in Sections 602 and 603)
or any other covenants made in respect of such Securities
or portions thereof as contemplated by Section 301, but
the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have
been satisfied and discharged prior to Maturity for any
other purpose, and the Holders of such Securities or
portions thereof shall continue to be entitled to look to
the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall
acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series, or any Tranche thereof,
is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities
of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature
and are not to be redeemed within the 60 day period
commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner
as a notice of redemption with respect to such Securities,
to the Holders of such Securities to the effect that such
deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603,
907 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the
principal or interest received in respect of such Eligible
Obligations, including, but not limited to, any such tax
payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding,
(a) if, at any time after a Security would be deemed to
have been paid for purposes of this Indenture, and, if
such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or
discharged, pursuant to this Section (without regard to
the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or
its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, such Security
shall thereupon be deemed retroactively not to have been
paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be
deemed not to have been effected, and such Security shall
be deemed to remain Outstanding and (b) any satisfaction
and discharge of the Company's indebtedness in respect of
any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed
to have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to
have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall
execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306, 404,
503 (as to notice of redemption), 602, 603, 907 and 915
and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject to
the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for
the benefit of the Holders of the Securities other than
money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or
interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and shall
be held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities
or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the
provisions of Section 603; provided, however, that, so
long as there shall not have occurred and be continuing an
Event of Default any cash received from such principal or
interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent
practicable and upon Company Request and delivery to the
Trustee of the documents referred to in clause (y) of
Section 701, be invested in Eligible Obligations of the
type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as
shall be sufficient, together with any other moneys and
the principal of and interest on any other Eligible
Obligations then held by the Trustee to pay when due the
principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and interest
earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or
pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there
shall not have occurred and be continuing an Event of
Default, any moneys held in accordance with this Section
on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if
any, and interest, if any, then due on such Securities
shall be paid over to the Company free and clear of any
trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an
Event of Default shall have occurred and be continuing,
moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall
have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of the
following events which shall have occurred and be
continuing:
(a) failure to pay interest, if any, on
any Security of such series within sixty (60) days
after the same becomes due and payable; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series when
due and payable; or
(c) failure to perform or breach of any
covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in the
performance of which or breach of which is elsewhere
in this Section specifically dealt with or which has
expressly been included in this Indenture solely for
the benefit of one or more series of Securities other
than such series) for a period of 60 days after there
has been given, by registered or certified mail, to
the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal
amount of the Outstanding Securities of such series,
a written notice specifying such default or breach
and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless the
Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed to
an extension of such period if corrective action is
initiated by the Company within such period and is
being diligently pursued; or
(d) the entry by a court having
jurisdiction in the premises of (1) a decree or order
for relief in respect of the Company in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree
or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the
Company or for any substantial part of its property,
or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or
any such other decree or order shall have remained
unstayed and in effect for a period of 90 consecutive
days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial
part of its property, or the making by it of an
assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay
its debts generally as they become due, or the
authorization of such action by the Board of
Directors; or
(f) any other Event of Default specified
with respect to Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred and
be continuing with respect to Securities of any series at
the time Outstanding, then in every such case the Trustee
or the Holders of not less than 33% in principal amount of
the Outstanding Securities of such series may declare the
principal amount (or, if any of the Securities of such
series are Discount Securities, such portion of the
principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) of all
of the Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon receipt by the
Company of notice of such declaration such principal
amount (or specified amount), together with premium, if
any, and accrued interest, if any thereon, shall become
immediately due and payable; provided, however, that if an
Event of Default shall have occurred and be continuing
with respect to more than one series of Securities, the
Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Securities of all such
series, considered as one class, may make such declaration
of acceleration, and not the Holders of the Securities of
any one of such series.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event
or Events of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have
been waived, and such declaration and its consequences
shall, without further act, be deemed to have been
rescinded and annulled, if
(a) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(i) all overdue interest on all
Securities of such series;
(ii) 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;
(iii) to the extent that payment
of such interest is lawful, interest upon
overdue interest at the rate or rates
prescribed therefor in such Securities;
(iv) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default
with respect to Securities of such series, other than
the non-payment of the principal of Securities of
such series which shall have become due solely by
such declaration of acceleration, shall have been
cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be
continuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event
of Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted
by law, interest on premium, if any, and on any overdue
principal and 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.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of
the Securities in respect of which or for the benefit of
which such money shall have been collected and the
notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First. To the payment of all amounts
due the Trustee under Section 907;
Second. To the payment of the amounts
then due and unpaid upon the Securities for
principal of and premium, if any, and interest,
if any, in respect of which or for the benefit
of which such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal, premium, if any, and
interest, if any, respectively; and
Third. To the payment of any surplus
then remaining to the Company or to whomever may
be lawfully entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously
given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of
such series;
(b) the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
series in respect of which an Event of Default shall
have occurred and be continuing, considered as one
class, shall have made written request to the Trustee
to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been discontinued
or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such
proceeding, the Company, and Trustee and such Holder shall
be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies
of the Trustee and such Holder shall continue as though no
such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right
to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred
and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such
series, considered as one class, shall have the right to
make such direction, and not the Holders of the Securities
of any one of such series; and provided, further, that
(a) such direction shall not be in
conflict with any rule of law or with this Indenture,
and could not involve the Trustee in personal
liability in circumstances where indemnity would not,
in the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any Security
of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified or
amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right
consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit may
be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an
Event of Default with respect to Securities of any
series,
(i) 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
(ii) 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
(i) this subsection shall not be
construed to limit the effect of subsection
(a) of this Section;
(ii) 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;
(iii) 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
(iv) no provision of this Indenture
shall require the Trustee to expend or risk
its own funds or otherwise incur any
financial liability in the performance of
any of its duties hereunder, or in the
exercise of any of its rights or powers, if
it shall have reasonable grounds for
believing that repayment of such funds or
adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner and
to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the
character specified in Section 801(c), no such notice to
Holders shall be given until at least 75 days after the
occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice
or lapse of time, or both, would become, an Event of
Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, or
as otherwise expressly provided herein, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization
and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be charged with
knowledge of any Event of Default with respect to the
Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the Event
of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company, 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 money
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its
negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of or
in connection with the acceptance or administration
of the trust or trusts hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as
such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section 703).
"Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the
Trust Indenture Act and this Indenture. For purposes of
Section 310(b)(1) of the Trust Indenture Act and to the
extent permitted thereby, the Trustee, in its capacity as
trustee in respect of the Securities of any series, shall
not be deemed to have a conflicting interest arising from
its capacity as trustee in respect of the Securities of
any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing
business under the laws of the United States, any
State or Territory thereof or the District of
Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the
Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until
the acceptance of appointment by the successor
Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time
with respect to the Securities of one or more series
by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee
required by Section 911 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to
the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(i) 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
(ii) 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
(iii) 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
appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall
have been so appointed by the Company or the Holders
and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder
of a successor Trustee with respect to the Securities
of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without
any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it,
execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder
of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts 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
successor Trustee, such retiring Trustee, upon
payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder with respect to the Securities of that or
those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any instruments
which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred
to in subsection (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of claims
against the Company or such other obligor. For purposes
of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers
and payable upon demand;
(b) the term "self-liquidating paper"
means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise
previously constituting the security, provided the
security is received by the Trustee simultaneously
with the creation of the creditor relationship with
the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting
the legal requirements of any applicable jurisdiction, the
Company and the Trustee shall have power to appoint, and,
upon the written request of the Trustee or of the Holders
of at least 33% in principal amount of the Securities then
Outstanding, the Company shall for such purpose join with
the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Trustee either to act
as co-trustee, jointly with the Trustee, or to act as
separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest
in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or
desirable, subject to the other provisions of this
Section. If the Company does not join in such appointment
within 15 days after the receipt by it of a request so to
do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make
such appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or separate
trustee so appointed to more fully confirm to such co-
trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to
the extent permitted by law, but to such extent only, be
appointed subject to the following conditions:
(a) the Securities shall be authenticated
and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held by,
or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and
obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by
the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee,
except to the extent that under any law of any
jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an
instrument in writing executed by it, with the
concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an
Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the
Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the
execution and delivery of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-
trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any other such
trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to the Securities of one or more
series, or Tranche thereof, which shall be authorized to
act on behalf of the Trustee to authenticate Securities of
such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and
doing business under the laws of the United States, any
State or territory thereof or the District of Columbia or
the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority,
then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series, or any Tranche thereof, shall be
made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
As Trustee
By
As Authenticating
Agent
By
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, and
at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders, the Commission and each securities exchange
upon which any Securities are listed, 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. The Company
shall notify the Trustee of the listing of any Securities
on any securities exchange.
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 Person, or convey or otherwise transfer or
lease its properties and assets substantially as an
entirety to any Person, unless
(a) the Person formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the
Company substantially as an entirety shall be a
Person organized and existing under the laws of the
United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to
such transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to
the Trustee an Officer's Certificate and an Opinion
of Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Person Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other Person 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 Person formed
by such consolidation or into which the Company is merged
or the Person to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof, or
to surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of
Default with respect to all or any series of
Securities Outstanding hereunder; or
(d) to change or eliminate any provision
of this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for all
but not part of the Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the
acceptance of appointment hereunder by a separate or
successor Trustee with respect to the Securities of
one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 911(b); or
(i) to provide for the procedures required
to permit the Company to utilize, at its option, a
non-certificated system of registration for all, or
any series or Tranche of, the Securities; or
(j) to change any place or places where
(1) the principal of and premium, if any, and
interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or
any series of Securities, or any Tranche thereof, may
be surrendered for registration of transfer, (3) all
or any series of Securities, or any Tranche thereof,
may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any
provisions hereof or the inclusion herein
of any additional provisions, or shall by
operation of law be deemed to effect such
changes or incorporate such provisions by
reference or otherwise, this Indenture
shall be deemed to have been amended so as
to conform to such amendment to the Trust
Indenture Act, and the Company and the
Trustee may, without the consent of any
Holders, enter into an indenture
supplemental hereto to effect or evidence
such changes or additional provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof
which, at the date of the execution and
delivery hereof or at any time thereafter,
are required by the Trust Indenture Act to
be contained herein, this Indenture shall
be deemed to have been amended to effect
such changes or elimination, and the
Company and the Trustee may, without the
consent of any Holders, enter into an
indenture supplemental hereto to evidence
such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent
of Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class,
shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the
principal of, or any installment of principal of or
interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or
currency (or other property), in which any Security
or any premium or the interest thereon is payable, or
impair the right to institute suit for the
enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of
redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder
of such Security, or
(b) reduce the percentage in principal
amount of the Outstanding Securities of any series or
any Tranche thereof, the consent of the Holders of
which is required for any such supplemental
indenture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders
of each Outstanding Security of such series or
Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof,
or except to increase the percentages in principal
amount referred to in this Section or such other
Sections or to provide that other provisions of this
Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
the "Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b)
and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to
Supplemental Indentures.
Securities of any series, or any Tranche
thereof, authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall
so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be
Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a
meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, for
any purpose specified in Section 1301, to be held at
such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at
any other place. Notice of every such meeting,
setting forth the time and the place of such meeting
and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been
requested to call a meeting of the Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by the
Holders of 33% in aggregate principal amount of all
of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee
shall not have given the notice of such meeting
within 21 days after receipt of such request or shall
not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the
Holders of Securities of such series and Tranches in
the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other
place as shall be determined or approved by the
Company, for such meeting and may call such meeting
for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or
Tranches thereof, shall be valid without notice if
the Holders of all Outstanding Securities of such
series or Tranches are present in person or by proxy
and if representatives of the Company and the Trustee
are present, or if notice is waived in writing before
or after the meeting by the Holders of all
Outstanding Securities of such series or any Tranche
or Tranches thereof, or by such of them as are not
present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series and Tranches with respect to which a meeting
shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be
taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In
the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided
in Section 1302(a) not less than ten days prior to the
date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with
respect to which such meeting shall have been called,
considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination
of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions
of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the
appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates
and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the
holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that
written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without
the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy
shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to
Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders shall
be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver
or other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and
Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and
all the Securities are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
_________________________
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, as of the day
and year first above written.
ENTERGY MISSISSIPPI, INC.
By:
Trustee
By:
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, _____, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Entergy Mississippi 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
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, _____, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of ______________________________, 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
