UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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In the Matter of :
SYSTEM ENERGY RESOURCES, INC. : CERTIFICATE PURSUANT
TO RULE 24
File No. 70-8215 :
Public Utility Holding Company :
Act of 1935 :
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This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transactions proposed by System Energy Resources, Inc. ("System
Energy") in the Application-Declaration in the above file, as
amended ("Application-Declaration"), have been carried out in
accordance with the terms and conditions of, and for the purposes
represented by, the Application-Declaration and pursuant to the
order of the Securities and Exchange Commission with respect
thereto dated January 14, 1994 (Release No. 35-25974). System
Energy arranged for GG1B Funding Corporation to issue and sell on
January 18, 1994 two separate series of bonds designated,
respectively, "Secured Lease Obligation Bonds, 7.43% Series due
2011 ("Series 2011 Bonds") and "Secured Lease Obligation Bonds,
8.20% Series due 2014" ("Series 2014 Bonds"). The Series 2011
Bonds and the Series 2014 Bonds were issued in the principal
amounts of $356,056,000 and $79,046,000, respectively.
Attached hereto and incorporated herein by reference
are:
Exhibits:
A-3(e) - Execution form of Collateral Trust
Indenture, dated as of January 1,
1994.
A-3(f) - Execution form of Supplemental
Indenture No. 1 to the Collateral
Trust Indenture, dated as of
January 1, 1994.
B-3(d) - Execution form of Lease Supplement
No. 2 to Facility Lease No. 1,
dated as of January 1, 1994.
B-4(d) - Execution form of Lease Supplement
No. 2 to Facility Lease No. 2,
dated as of January 1, 1994.
B-7(d) - Execution form of Supplemental
Indenture No. 2 to Trust
Indenture, Deed of Trust,
Mortgage, Security Agreement and
Assignment of Facility Lease
No. 1, dated as of January 1,
1994.
B-8(d) - Execution form of Supplemental
Indenture No. 2 to Trust
Indenture, Deed of Trust,
Mortgage, Security Agreement and
Assignment of Facility Lease
No. 2, dated as of January 1,
1994.
B-9(a) - Execution form of Underwriting,
Agreement dated as of January 11,
1994.
B-10(b) - Execution form of Refunding
Agreement No. 1-A, dated as of
January 1, 1994.
B-11(b) - Execution form of Refunding
Agreement No. 2-A, dated as of
January 1, 1994.
B-12(a) - Execution form of Amendment No. 1
to Tax Indemnity Agreement No. 1,
dated as of January 1, 1994.
B-12(b) - Execution form of Amendment No. 1
to Tax Indemnity Agreement No. 2,
dated as of January 1, 1994.
F-1 - Post-Effective opinion of Reid &
Priest, counsel for System Energy.
IN WITNESS WHEREOF, System Energy Resources, Inc. has
caused this certificate to be executed this 31st day of January,
1994.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Glenn E. Harder
Glenn E. Harder
Vice President - Financial
Strategies and Treasurer
Exhibit A-3(e)
COLLATERAL TRUST INDENTURE
dated as of January 1, 1994
AMONG
GG1B FUNDING CORPORATION,
SYSTEM ENERGY RESOURCES, INC.
AND
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as Trustee
___________
Providing for the Issuance from Time to Time of
Securities To Be Issued in One or More Series
Sale and Leaseback of Two Undivided Interests in
Grand Gulf Nuclear Station Unit No. 1
<PAGE>
GG1B FUNDING CORPORATION
SYSTEM ENERGY RESOURCES, INC.
Reconciliation and tie between Indenture
dated as of January 1, 1994
and
Trust Indenture Act of 1939
Section
Section of Actof Indenture
310(a) (1) 9.09
(2) 9.09
(3) 9.15(b)(2)
(4) In applicable
(5) 9.09
(b) 9.08, 9.10
(c) 9.13
311(a) 9.13
(b) 9.13
(c) In applicable
312(a) 10.01
(b) 10.01
(c) 10.01
313(a) 10.02
(b) 10.02
(c) 10.02
(d) 10.02
314(a) 10.02
(b) 5.06
(c) (1) 1.02
(2) 1.02
(3) 2.04(g)(i)
(d) (1) 5.11
(2) In applicable
(3) 2.04(g)(ii)
(e) 1.02
315(a) 9.01, 9.03
(b) 9.02
(c) 9.01
(d) (1) 9.01
(2) 9.01
(3) 9.01
(e) 8.10
316(a) (1) (A) 8.07
(B) 8.08
(2) In applicable
(a) (last sentence) 1.01
("Outstanding")
(b) 8.11
317(a) (1) 8.05(a)
(2) 8.05(d)
(b) 5.03
9.14(a)
318(a) 1.07
____________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to constitute a part of the Indenture.
<PAGE>
COLLATERAL TRUST INDENTURE
Collateral Trust Indenture, dated as of January 1, 1994,
among GG1B Funding Corporation, a Delaware corporation (the
"Company"), having its principal office and mailing address at
Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801, System Energy Resources, Inc., an Arkansas
corporation ("SERI"), having its principal office and mailing
address at Echelon One, 1340 Echelon Parkway, Jackson,
Mississippi 39213 and Bankers Trust Company, a New York banking
corporation, not in its individual capacity but solely as trustee
(hereinafter called the "Trustee") having its corporate trust
office at Four Albany Street, New York, New York 10006,
W I T N E S S E T H:
Whereas, the Company has duly authorized the creation of an
issue of its debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture; and to
secure the Securities and to provide for the authentication and
delivery thereof by the Trustee, the Company has duly authorized
the execution and delivery of this Indenture; and
Whereas, all acts necessary to make this Indenture a valid
instrument for the security of the Securities, in accordance with
its and their terms, have been done;
Now, Therefore, This Indenture Witnesseth, that, to secure
the payment of the principal of and premium, if any, and interest
on all the Securities authenticated and delivered hereunder and
issued by the Company and outstanding, and the performance of the
covenants therein and herein contained, and in consideration of
the premises and of the covenants herein contained and of the
purchase of the Securities by the holders thereof, and of the sum
of one dollar ($1.00) paid to the Company by the Trustee at or
before the delivery hereof, the receipt whereof is hereby
acknowledged, the Company by these presents does grant, bargain,
sell, release, convey, assign, pledge, transfer, mortgage,
hypothecate and confirm unto the Trustee all and singular the
following (which collectively are hereinafter called the "Pledged
Property"), excluding, in any event, any moneys which are
specifically stated herein not to constitute part of the Pledged
Property, to wit:
RECITALS
All Pledged Lessor Notes (as hereinafter defined) as shall
be actually pledged and assigned by the Company to the Trustee
pursuant to the Series Supplemental Indentures or other
supplemental indentures to be executed and delivered as provided
in this Indenture, together with the interest of the Company, if
any, in the Lease Indentures (as hereinafter defined) securing
said Pledged Lessor Notes.
GRANTING CLAUSES
Any property, including cash, that may, from time, to time
hereafter be subjected to the lien and/or pledge hereof by the
Company or which, pursuant to any provision of this Indenture or
any Series Supplemental Indenture or other supplemental
indentures to be executed and delivered as provided in this
Indenture, may become subjected to the lien and/or pledge hereof;
and the Trustee is hereby authorized to receive the same at any
time as additional security hereunder. Such subjection to the
lien hereof of any such property as additional security may be
made subject to any reservations, limitations or conditions which
shall be set forth in a written instrument executed by the
Company and/or by the Trustee respecting the scope or priority of
such lien and/or pledge or the use and disposition of such
property or the proceeds thereof.
To Have and to Hold the Pledged Property unto the Trustee
and its successors and assigns forever subject to the terms of
this Indenture, including, without limitation, Section 12.01.
But In Trust, Nevertheless, for the equal and proportionate
benefit and security of the holders from time to time of all the
Securities authenticated and delivered hereunder and issued by
the Company and outstanding, without any priority of any one
Security over any other.
And Upon The Trusts and subject to the covenants and
conditions hereinafter set forth.
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 1.01. Definition.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act (as hereinafter defined), either directly or
by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) all reference in this Indenture to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
Indenture; and
(5) 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, has the
meaning specified in Section 1.04.
"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 acting as
Authenticating Agent hereunder pursuant to Section 9.14.
"Authorized Agent" means any Paying Agent or Security
Registrar or Authenticating Agent or other agent appointed by the
Trustee in accordance with this Indenture to perform any function
which this Indenture authorizes the Trustee or such agent to
perform.
"Board of Directors" means, when used with respect to the
Company, the board of directors of the Company and, when used
with respect to SERI, the board of directors of SERI, or, in
either case, any committee of that board duly authorized to act
for it hereunder.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company or
SERI, as the case may be, to have been duly adopted by the Board
of Directors of such entity and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or
Sunday or other day on which banks in New Orleans, Louisiana, New
York, New York or the cities in which the Indenture Trustee's
Offices (as defined in the respective Lease Indentures) are
located, are authorized or obligated to be closed.
"Change" with respect to any instrument means any consent,
amendment, waiver, approval, notice or direction or the
execution, grant or giving of any thereof.
"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 execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" or "Company Order" means a written
request or order, as the case may be, signed in the name of the
Company by its President or one of its Vice Presidents, and by
its Treasurer, Secretary, or one of its Assistant Treasurers or
Assistant Secretaries, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time corporate trust business
of the Trustee shall be administered, which at the date of this
Indenture is Four Albany Street, New York, NY 10015, Attention:
Corporate Trust & Agency Group, or such other office as may be
designated by the Trustee to the Company, SERI and each
Securityholder.
"Event or Default" has the meaning specified in Section
8.01.
"Extension Letter" means the Extension Letter, to be dated
the date of the original issuance of a series of Pledged Lessor
Notes and addressed to the Trustee by the parties to the
Participation Agreement (other than the Original Loan
Participants named therein) in accordance with which such series
of Pledged Lessor Notes was issued, extending to the Trustee the
representations, warranties and covenants of such parties (other
than each Owner Participant) referred to in Section 11(c) of such
Participation Agreement, and in the case of each Owner
Participant, the representations, warranties and agreements set
forth in Sections 2(b) and 2(c) of the Assignment and Assumption
Agreement entered into by each such Owner Participant pursuant to
Section 15(c) of the Participation Agreement in connection with
the transfer of the Original Owner Participant's beneficial
interest in the Trust Estate (as such term is defined in the
Participation Agreement).
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the Security Register.
"Indenture" means this instrument as originally executed
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.
"Initial Interest Payment Date" with respect to any series
of Securities means the date of the Stated Maturity of the
initial installment of interest on Securities of such series.
"Installment Payment Amount", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means the amount of the
installment payment of principal due and payable on each
Installment Payment Date other than the Stated Maturity date
thereof.
"Installment Payment Date", when used with respect to any
Security the principal of which is payable in installments
without presentment or surrender, means each date on which an
installment payment of principal is due and payable on such
Security, as set forth in the Series Supplemental Indenture
creating the Securities of such series.
"Lease" means each Lease identified in Exhibit A hereto, as
such Lease may be amended or supplemented from time to time
pursuant to the applicable provisions thereof; "Leases" means
each and every Lease.
"Lease Indenture" means each Lease Indenture identified in
Exhibit A hereto, as such Lease Indenture may be amended or
supplemented from time to time pursuant to the applicable
provisions thereof; "Lease Indentures" means each and every Lease
Indenture.
"Lease Indenture Estate" shall have the meaning set forth
in each Lease Indenture.
"Lease Indenture Trustee" means each Lease Indenture
Trustee identified in Exhibit A hereto, until a successor Lease
Indenture Trustee shall have become such pursuant to the
applicable provisions of the Lease Indenture to which such Lease
Indenture Trustee is a party, and thereafter "Lease Indenture
Trustee" means the successor Lease Indenture Trustee; "Lease
Indenture Trustees" means each and every Lease Indenture Trustee.
"Lease Payments" with respect to any Lease shall mean
amounts payable under such Lease in respect of (i) basic rent,
(ii) casualty value, (iii) special casualty value, (iv) any
amount determined by reference to casualty value or special
casualty value or (v) any other amounts payable in connection
with termination of such Lease, in each case as more fully
described in and assigned pursuant to the related Lease
Indenture; "Lease Payments" with respect to all Leases means the
aggregate of Lease Payments under any and all Leases.
"Lessor" or "Owner Trustee" means any Lessor or Owner
Trustee identified in Exhibit A hereto, until a successor shall
have become such pursuant to the applicable provisions of the
related Trust Agreement identified in such schedule, and
thereafter "Lessor" or "Owner Trustee" means such successor;
"Lessors" or "Owner Trustees" means each and every Lessor or
Owner Trustee.
"Lessor Note" means any promissory note issued by a Lessor
under a Lease Indenture.
"Lien of this Indenture" or "lien hereof" means the lien
and security interest created by these presents, or created by
any concurrent or subsequent conveyance to the Trustee (whether
made by the Company or any other Person and whether pursuant to a
Series Supplemental Indenture or otherwise), or otherwise
crested, constituting any property a part of the Pledged Property
held by the Trustee for the benefit of the Securities Outstanding
hereunder.
"Obligor", when used with reference to the Securities or
this Indenture, means SERI and any successor to the obligations
of SERI under a Lease, and does not include the Trustee, a Lease
Indenture Trustee, an Owner Trustee or an Owner Participant so
long as they have not assumed such obligations; provided,
however, that no reference to SERI as an Obligor herein shall be
construed as implying any guaranty or assumption of the
Securities or the obligations represented thereby by SERI.
"Officers' Certificate" means a certificate signed by the
President or any Vice President and the Treasurer, the Secretary,
any Assistant Treasurer or any Assistant Secretary of SERI, any
Lessor or the Company, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel for
any Person either expressly referred to herein or otherwise
satisfactory to the Trustee which may include, without
limitation, counsel to the Company, any Lessor, any Lease
Indenture Trustee, any Owner Participant or SERI, whether or not
such counsel is an employee of any of them.
"Outstanding" when used with respect to Securities means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof deemed to have been
paid within the meaning of Section 12.01 hereof; and
(iii) Securities which have been paid pursuant to Section
2.09 or in exchange for or in lieu of which other
Securities have been issued, authenticated and delivered
pursuant to this Indenture, other than any Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any
series, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders, Securities owned by the Company
or SERI, or any Affiliate of either thereof, (unless such Persons
own all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series, as the case may be),
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 a Responsible
Officer of the Trustee actually 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 SERI, or any Affiliate of
either thereof.
"Owner Participant" means any Owner Participant identified
in Exhibit A hereto, until a transferee, successor or assignee
thereof shall have become such pursuant to the applicable
provisions of the Participation Agreement to which such Owner
Participant is a party, and thereafter "Owner Participant" means
such transferee, successor or assignee; "Owner Participants"
means each and every Owner Participant.
"Participation Agreement" means each Participation
Agreement identified in Exhibit A, hereto, as such Participation
Agreement may be amended from time to time pursuant to the
applicable provisions thereof; "Participation Agreements" means
each and every Participation Agreement.
"Paying Agent" means any Person acting as Paying Agent
hereunder pursuant to Section 9.14.
"Person" means any individual, partnership, corporation,
trust, unincorporated association or joint venture, a government
or any department or agency thereof, or any other entity.
"Place of Payment", when used with respect to the
Securities of any series, means the office or agency maintained
pursuant to Section 5.02 and such other place or places, if any,
where the principal of and premium, if any, and interest on the
Securities of such series are payable as specified in the Series
Supplemental Indenture setting forth the terms of the Securities
of such series.
"Pledged Lessor Note" means each Lessor Note identified in
a schedule to a Series Supplemental Indenture, as such Lessor
Note may be amended or supplemented from time to time pursuant to
the applicable provisions thereof, of the related Lease Indenture
and of this Indenture; "Pledged Lessor Notes" means each and
every Pledged Lessor Note.
"Pledged Property" has the meaning set forth in the
Granting Clauses.
"Predecessor Securities" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; for the
purposes of this definition, any Security authenticated and
delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Instruments" means the Pledged Lessor Notes, the
Lease Indentures, the Participation Agreements and the Leases.
"Redeemed Securities" shall have the meaning specified in
Section 7.02.
"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 and the terms of such Security.
"Regular Record Date" for the Stated Maturity of any
installment of interest on the Securities of any series or for
the Installment Payment Date of any installment of principal of
the Securities and any series for which principal is payable from
time to time without presentation or surrender means the 1st day
(whether or not a Business Day) of the month in which such Stated
Maturity or Installment Payment Date, as the case may be, occurs,
or any other date specified for such purpose in the Series
Supplemental Indenture setting forth the terms of the Securities
of such series.
"Responsible Officer" shall mean when used with respect to
the Trustee, any officer within the Corporate Trust Office of the
Trustee including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer of the
Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Security" or "Securities" shall have the meaning set forth
in the recitals hereto.
"Security Register" has the meaning specified in Section
2.08.
"Security Registrar" means any Person acting as Security
Registrar hereunder pursuant to Section 9.14.
"SERI" shall mean System Energy Resources, Inc., an
Arkansas corporation, and its permitted successors and assigns.
"SERI Request" means a written request or order, signed in
the name of SERI by its President or one of its Vice Presidents
or Assistant Vice Presidents and by its Treasurer or Secretary or
one of its Assistant Treasurers or Assistant Secretaries or any
authorized agent of SERI, and delivered to the Trustee.
"Series Supplemental Indenture" means an indenture
supplemental to this Indenture, for the purpose of, among other
things, specifying, in accordance with Article Two hereof, the
form of the Securities of any series and/or for the purpose of,
among other things, subjecting to the Lien of this Indenture the
Pledged Lessor Notes related to such series; "Series Supplemental
Indentures" means each and every Series Supplemental Indenture.
"Sinking Fund" has the meaning specified in Section 7.02.
"Sinking Fund Redemption Date" shall have the meaning
specified in Section 7.02.
"Sinking Fund Requirements" shall have the meaning
specified in Section 7.02.
"Special Record Date" for the payment of any defaulted
interest or any defaulted Installment Payment Amount means a date
fixed by the Trustee pursuant to Section 2.10.
"Stated Maturity", when used with respect to the principal
of any Security or any installment of interest thereon, means the
date specified in such Security as the fixed date on which such
principal or such installment of interest is due and payable;
provided, however, that, with respect to any Security the
principal of which is payable in installments without presentment
or surrender, Stated Maturity shall mean the date specified in
such Security as the fixed date on which the final payment of
principal of such Security is due and payable.
"Trust Indenture Act" or "TIA" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed, except as provided in Section 11.06.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company, any Lessor
or SERI to the Trustee to take any action under any provision of
this Indenture, the Company, such Lessor or SERI, as the case may
be, shall furnish to the Trustee an Officers' 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
(other than certificates provided pursuant to Section 10.02
herein) shall include:
(a) a statement that each individual 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
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.03. 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,
of any Lessor or of SERI may be based, insofar as it
relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows
that the certificate or opinion or representations with
respect to the matters upon which his certificate or
opinion is 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,
of any Lessor or of SERI, as the case may be, stating that
the information with respect to such factual matters is in
the possession of the Company, such Lessor or SERI, as the
case may be, unless such counsel knows that the certificate
or opinion or representations with respect to such matters
are erroneous.
Any Opinion of Counsel stated to be based on the opinion
of other counsel shall be accompanied by a copy of such
other opinion.
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.
Section 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be 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 and to SERI. 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 shall be sufficient for
any purpose of this Indenture and (subject to Section 9.01)
conclusive in favor of the Trustee, the Company and SERI,
if made in the manner provided in this Section. The record
of any meeting of Holders of Securities shall be proved in
the manner provided in Section 13.06.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before
any such notary or other such officer. If 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. The
fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date or dates of
holding the same, shall be proved by the Security Register
and the Trustee shall not be affected by notice to the
contrary.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of
any Security shall bind the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in
lieu thereof, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments shall have
been delivered 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 the Holder of any Security may
be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved
by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of
the Trustee and the Company, to such action may be prepared
and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of
such series.
Section 1.05. Notices, etc., to Trustee, Company and SERI.
Any request, demand, authorization, direction, notice,
consent, 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,
(a) the Trustee by any Holder, by the Company, by SERI
or by an Authorized Agent shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust
Office, or
(b) the Company by the Trustee, by any Holder, by SERI
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee and SERI by
the Company for such purpose, or
(c) SERI by the Trustee, by any Holder, by the Company
or by an Authorized Agent shall be sufficient for every
purpose hereunder if in writing and mailed, first-class
postage prepaid, to SERI addressed to it at the address of
its principal office specified in the first paragraph of
this instrument or at any other address previously
furnished in writing to the Trustee and the Company by SERI
for such purpose.
Section 1.06. Notices to Holders; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address 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, then such
notification as shall be made by overnight courier at the
expense of the Company shall constitute a sufficient
notification for every purpose hereunder.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event,
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.
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, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been
duly given.
Section 1.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required
to be included in this Indenture by, or is otherwise
governed by, any provision of the Trust Indenture Act, such
required or governed provision shall control; and if any
provision hereof otherwise conflicts with the Trust
Indenture Act, the Trust Indenture Act shall control.
Section 1.08. Effect of Heading 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 1.09. Successors and Assigns.
All covenants, agreements, representations and
warranties in this Indenture by the Company, SERI and the
Trustee, shall bind and, to the extent permitted hereby,
shall inure to the benefit of and be enforceable by their
respective successors and assigns, whether so expressed or
not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, or the
Holders of Securities as expressly provided herein, any
benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.12. Governing Law.
This Indenture and each Security are being and will be
executed and delivered in the State of New York, shall be
deemed to be contracts made in such State and for all
purposes shall be construed in accordance with and governed
by the laws of the State of New York, except to the extent
that laws of other jurisdictions are mandatorily
applicable.
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Installment
Payment Date or the Stated Maturity of principal of or any
installment of interest on any Security, or any date on
which any defaulted interest or principal is proposed to be
paid, shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or such Security)
payment of interest and/or principal and premium, if any,
shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on or at such
nominal Redemption Date, Stated Maturity, Installment
Payment Date or date on which the defaulted interest or
principal is proposed to be paid, and no interest shall
accrue on the amount so payable for the period from and
after such Redemption Date, Stated Maturity, Installment
Payment Date or date for the payment of defaulted interest
or principal, as the case may be.
ARTICLE TWO
The Securities
Section 2.01. Form of Security to Be Established by Series
Supplemental Indenture.
The Securities of each series shall be substantially in
the form (not inconsistent with this Indenture, including
Section 2.05 hereof) established in the Series Supplemental
Indenture relating to the Securities of such series.
Section 2.02. Form of Trustee's Authentication.
The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within mentioned Indenture.
________________________________________________
as Trustee
By______________________________________________
Authorized Officer
Dated
Section 2.03. Amount Unlimited; Issuable in Series; Limitations
on Issuance.
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. There
shall be established in one or more Series Supplemental
Indentures, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities) and the form or forms of Securities of
such series;
(2) any limit upon the aggregate principal amount of
the Securities of such series that 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 2.07, 2.08, 2.09, 6.06 or
11.07 and except for Securities which pursuant to Section
2.04 hereof, are deemed never to have been authenticated
and delivered hereunder);
(3) the date on which the principal of the Securities
of such series is payable: and the date or dates on or as
of which the Securities of such series shall be dated, if
other than as provided in Section 2.13;
(4) the rate at which the Securities of such series
shall bear interest, or the method by which such rate shall
be determined, 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 for
the determination of Holders to whom interest is payable;
and the basis of computation of interest, if other than as
provided in Section 2.13;
(5) if other than as provided in Section 5.02, the
place or places where (1) the principal of and premium, if
any, and interest on Securities of such series shall be
payable, (2) Securities of such series may be surrendered
for registration of transfer or exchange and (3) notices
and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served;
and, if such is the case, the circumstances under which the
principal of such Securities shall be payable without
presentment or surrender;
(6) the price or prices at which, the period or
periods within which and the terms and conditions upon
which Securities of such series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any
sinking fund, installment payment or analogous provisions
or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and
the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid in whole or
in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of
such series shall be issuable;
(9) any other terms of Securities of such series
(which terms shall not be inconsistent with the provisions
of this Indenture); and
(10) any trustees, authenticating or paying agents,
warrant agents, transfer agents or registrars with respect
to the Securities of such series.
Concurrently with the initial authentication and delivery
of the Securities of each series, the Company shall cause to be
delivered to the Trustee Lessor Notes (a) issued as separate
series under one or more Lease Indentures, (b) payable as to
principal on such dates and in such amounts that on the Stated
Maturity of principal and each Sinking Fund Redemption Date or
Installment Payment Date of such Securities there shall be
payable on the Lessor Notes an amount in respect of principal
equal to the principal amount of such Securities then to mature
or to be payable in installments of principal or be redeemed, (c)
bearing interest at the same rate and payable at the same times,
as the corresponding Securities of such series, (d) containing
provisions for redemption, including redemption premiums,
correlative to the provisions for redemption (other than pursuant
to a Sinking Fund) of the Securities of such series and (e)
registered in the name of the Trustee.
Section 2.04. Authentication and Delivery of Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
shall thereupon authenticate and deliver such Securities in accor
dance with such Company Order, without any further action (other
than as set forth in Section 2.04(b)) by the Company. Subject to
Section 9.14(b) hereof, no Security shall be secured by or
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, in the form provided for herein,
executed manually by the Trustee by one of its Responsible
Officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee (and, if applicable, the Authenticating
Agent) shall be entitled to receive, and (subject to Section
9.01) shall be fully protected in relying upon:
(a) an executed Series Supplemental Indenture;
(b) an Officers' Certificate of the Company (i)
certifying as to resolutions of the Board of Directors of
the Company authorizing the execution and delivery by the
Company of such Series Supplemental Indenture and the
issuance of such Securities, (ii) certifying that all
conditions precedent under this Indenture to the Trustee's
(or, if applicable, the Authenticating Agent's)
authentication and delivery of such Securities have been
complied with and (iii) certifying that the terms of the
documents referred to in clauses (c) and (d) below are not
inconsistent with the terms of this Indenture as then and
theretofore supplemented;
(c) fully executed counterparts (but not the originals
thereof) of (i) the Lease Indentures under which were
issued the Pledged Lessor Notes relating to the Securities
of such series and (ii) the Leases relating to such Pledged
Lessor Notes;
(d) the originals of the Pledged Lessor Notes relating
to the Securities of such series in an aggregate principal
amount not less than the aggregate principal amount of such
series of Securities proposed to be authenticated and
delivered;
(e) signed copies, either addressed to the Trustee or
accompanied by statements that the Trustee may rely on such
documents, of all certificates and opinions of counsel
delivered (i) to the Company in connection with its
purchase of the Pledged Lessor Notes relating to the
Securities of such series, (ii) to the Owner Trustee and/or
the Lease Indenture Trustee in connection with the issuance
of such Pledged Lessor Notes, and (iii) to the extent not
covered by such opinions, opinions of Counsel to the
Company or SERI (x) to the effect that (1) the form or
forms and the terms of such Securities have been
established by a Series Supplemental Indenture as permitted
by Sections 2.01 and 2.03 in conformity with the provisions
of this Indenture, (2) such Securities, when authenticated
and delivered by the Trustee (or, if applicable, the
Authenticating Agent) and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Company, except to the extent that the
enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereafter in effect relating to
creditors' rights generally and (3) all requirements of the
laws of the States of New York, Arkansas and Mississippi
and of the General Corporation Law of the State of Delaware
and of this Indenture, in respect of the execution and
delivery by the Company of the Securities, have been
complied with and (y) concerning such other matters as the
Trustee may reasonably request;
(f) duly executed Extension Letters relating to the
Pledged Lessor Notes; and
(g) in circumstances where the Pledged Lessor Notes
relating to such series of Securities are executed and
delivered for the purposes described in clause (ii) of
paragraph (1) of Section 3.5 of any Lease Indenture, (i) a
certificate of an independent public accountant acceptable
to the Trustee (who shall not be an employee of the
Company, or SERI or any Affiliate of either thereof) to the
effect that the principal amount of Securities to be
authenticated does not exceed the Undivided Interest
Percentage (as defined in such Lease Indenture) of total
cost (including allowance for funds used during
construction, or any analogous amount, to the extent
permitted by generally accepted accounting principles) of
any related Capital Improvement (as defined in such Lease
Indenture) financed with the proceeds of such Pledged
Lessor Notes and (ii) a certificate of an independent
engineer, appraiser or other expert acceptable to the
Trustee (who may be an officer or employee of SERI except
as would be required by Section 314(d)(3) of the Trust
Indenture Act) to the effect that the Undivided Interest
Percentage of the fair value of any such Capital
Improvement as of its respective date of incorporation or
installation was not less than the Undivided Interest
Percentage of the total cost) including allowance for funds
used during construction, or any analogous amount, to the
extent permitted by generally accepted accounting
principles) of such Capital Improvement as of the date
financed with the proceeds of such Pledged Lessor Notes.
Receipt by the Trustee of the Officers' Certificate
referred to in clause (b) above shall be conclusively presumed
for all purposes of this Indenture to establish that the
documents referred to in such Officers' Certificate comply with
the requirements of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 2.12
together with a written statement (which need not comply with
Section 1.02 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 2.05. Form and Denominations.
The Securities of each series shall be in registered form
and may have such letters, numbers or other marks of
identification and such legends or endorsements thereon as may be
required to comply with the rules of any securities exchange or
to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Board of Directors of
the Company or by the officers executing such Securities, as
evidenced by their execution thereof.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution thereof.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided herein or in the Series Supplemental Indenture
setting forth the terms of the Securities of such series.
In the absence of any provision contained in any Series
Supplemental Indenture, the Securities are issuable only in
denominations of $1,000 and/or any integral multiple thereof.
Section 2.06. Execution of Securities.
The Securities shall be executed on behalf of the Company
by its President or one of its Vice Presidents, under its
corporate seal affixed thereto or reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries. The
signature of any or all such officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time relevant to the authorization
thereof the proper 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.
Section 2.07. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities of
such series which are printed, lithographed, typewritten,
photocopied or otherwise produced many authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued (with or without the recital of specific
redemption or sinking fund provisions) and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by
their execution thereof.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained for such
purpose at the Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall
execute, and the Trustee shall authenticate and deliver in
exchange therefor, definitive Securities of such series of
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such
series and of like tenor.
Section 2.08. Registration, Transfer and Exchange.
The Company shall cause to be kept at the office of the
Security Registrar a register in which, subject to such
reasonable regulations as the Company may prescribe, the Company
shall provide for the registration of Securities and of
registration of transfers and exchanges of Securities and, with
respect to Securities of any series the principal of which is
payable without presentation or surrender, the amount of the
unpaid principal amount of such Securities. This register and,
if there shall be more than one Security Registrar, the combined
registers maintained by all such Security Registrars, are herein
sometimes referred to as the "Security Register".
Upon surrender for registration of transfer of any Security
of any series at any office or agency maintained for such purpose
pursuant to Section 5.02, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at any office or agency maintained for such purpose
pursuant to Section 5.02. 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 issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
security and 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 exchange shall (if so required by the Company or the
Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and Security Registrar or any
transfer agent, duly executed, by the Holder thereof or his
attorney duly authorized in writing.
Except as may be otherwise provided in the Series
Supplemental Indenture relating to the Securities of any series,
no service charge shall be made for any transfer or exchange of
Securities, but the Security Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of
Securities other than exchanges pursuant to Sections 2.07, 6.06
or 11.07 not involving any transfer.
Neither the Company, the Trustee nor the Security Registrar
shall be required (i) to execute and deliver, issue, register the
transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 6.02 or 7.02
and ending at the close of business on the day of such mailing or
(ii) to issue, register the transfer of or exchange any Security
so selected for redemption in whole or in part, except the
unredeemed portion of any Security selected for redemption in
part.
Section 2.09. Mutilated, Destroyed, Lost and Stolen Securitie.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Trustee, the Company and
SERI (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 required by them to save any of
them and any agent of any of them harmless, then, in the absence
of notice to the Trustee, the Company or SERI that such Security
has been acquired by a bona fide purchaser, the Company shall
execute, and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of
the same series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen security 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 expenses connected therewith.
Every new Security 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, and shall be entitled to all the
security and benefits of this Indenture equally and
proportionately with any and all other Securities 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 2.10. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, at any Stated Maturity of
an installment of interest 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. At the option of the Company, payment of
interest on any Security may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register or in such other manner as shall
be established in a Series Supplemental Indenture creating the
series of which such Security is a part.
Any Installment Payment Amount or any interest on any
Security of any series which is payable, but is not punctually
paid or duly provided for, at any Installment Payment Date or any
Stated Maturity of an installment of interest, as the case may
be, shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder
to the extent that the Company has elected to pay such defaulted
interest or principal as provided in clause (a) or (b) below:
(a) The Company may elect, which election shall be at
the direction of any Owner Trustee whose Pledged Lessor
Note is in default in respect of the payment of interest or
principal and which is proposing to make payment of all or
part of such defaulted interest or principal, to make
payment of any defaulted interest or principal to the
Persons in whose names the Securities of such series in
respect of which interest is in default (or their
respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment
of such defaulted interest or principal, which shall be
fixed in the following manner. Such Owner Trustee shall
notify the Trustee and, if other than the Trustee, the
Paying Agent, in writing of the amount of defaulted
interest or principal proposed to be paid on each such
Security and the date of the proposed payment, and at the
same time there shall be deposited with the Trustee an
amount of money equal to the aggregate amount proposed to
be paid in respect of such defaulted interest or principal,
as the case may be, or there shall be made 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 or principal as in this clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such defaulted interest or
principal which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify
the Company, SERI and the Security Registrar of such
Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of
such defaulted interest or principal and the Special Record
Date therefor to be mailed, first-class postage prepaid, to
each Holder 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 or principal and the
Special Record Date therefor having been mailed as
aforesaid, such defaulted interest shall be paid to the
Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (b).
(b) The Company may make, or cause to be made, payment
of any defaulted Installment Payment Amount or any
defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities in respect of which such
principal or interest is in default 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 paragraph, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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, and each such
Security shall bear interest from whatever date shall be
necessary so that neither gain nor loss in interest shall result
from such registration of transfer, exchange or replacement.
Section 2.11. Persons Deemed Owners.
The Person in whose name any Security is registered shall
be deemed to be the owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and
(subject to Section 2.10) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, regardless of any notice to anyone to the contrary.
Section 2.12. Cancellation.
All Securities surrendered for payment, redemption, credit
against any Sinking Fund payment or registration of transfer or
exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The
Company may at any time deliver to the Trustee 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 all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All Securities cancelled
by the Trustee shall be disposed of in accordance with the
customary practice of the Trustee, and the Trustee shall promptly
deliver a certificate of disposition to the Company, unless, by a
timely Company Order, the Company shall direct that canceled
Securities be disposed of otherwise. The Trustee shall promptly
deliver written evidence of any cancellation of a Security in
accordance with this Section 2.12 to the Company.
Section 2.13. Dating of Securities; Computation of Interest.
(a) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, each
Security of any series shall be dated the date of its
authentication.
(b) Except as otherwise provided in the Series
Supplemental Indenture creating a series of Securities, interest
on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
Section 2.14. Source of Payments; Rights and Liabilities of
Lessors, Owner Participants and Lease Indenture
Trustees.
Except as otherwise specifically provided in this
Indenture, all payments of principal and premium, if any, and
interest to be made in respect of the Securities or under this
Indenture shall be made only from Pledged Property or the income
and proceeds received by the Trustee therefrom. Each Holder, by
its acceptance of a Security shall be deemed to have agreed that
(a) it will look solely to the Pledged Property or the income and
proceeds received by the Trustee therefrom to the extent
available for distribution to such Holder as herein provided and
(b) none of any Owner Participant, any Owner Trustee, any Lease
Indenture Trustee or the Trustee is liable to any Holder or, in
the case of any Owner Participant, Owner Trustee or Lease
Indenture Trustee, to the Trustee for any amounts payable under
any Security or, except as provided herein with respect to the
Trustee, for any liability under this Indenture. No Owner
Participant, Owner Trustee or Lease Indenture Trustee shall have
any duty or responsibility under this Indenture or the Securities
to any Holder or to the Trustee.
Section 2.15. Application of Proceeds from the Sale of
Securities.
The Company shall pay, or cause to be paid, the proceeds of
the issuance and sale of the Securities of each series to each
Lease Indenture Trustee under a Lease Indenture under which
Pledged Lessor Notes shall have been issued and delivered to the
Trustee in connection with the issuance of such Securities, for
the account of the related Owner Trustee which issued such
Pledged Lessor Notes, each such Lease Indenture Trustee to
receive an amount equal to the aggregate principal amount of such
Pledged Lessor Notes.
Section 2.16. Principal Amount of Securities Payable Without
Presentment or Surrender.
All references in this Indenture to the principal amount of
any Security shall, when used with respect to Securities of any
series the principal of which is payable without presentation or
surrender shall mean the unpaid principal amount thereof, except
that, for purposes of Sections 2.07, 2.08,2.09 and 6.06 of this
Indenture, principal amount shall, when used with respect to any
such Security, refer to the original principal amount thereof
prior to the payment of any Installment Payment Amounts.
Notwithstanding anything herein or in any Security to the
contrary, with respect to each Security of any series the
principal of which is payable without presentation or surrender,
the unpaid principal amount thereof recorded on the Security
Register shall be controlling as to the remaining unpaid
principal amount thereof.
ARTICLE THREE
Provisions as to Pledged Property
Section 3.01. Holding of Pledged Securities.
The Trustee is authorized in its discretion to cause to be
registered (as to principal) in its name, as Trustee, or in the
name of its nominee, any and all coupon bonds which it may
receive as part of the Pledged Property, or it may cause the same
to be exchanged for registered bonds without coupons of any
denomination. The Trustee is authorized in its discretion to
cause to be registered in its name, as Trustee, or in the name of
its nominee, any, and all registered bonds which it may receive
as part of the Pledged Property, or may cause such registered
bonds to be exchanged for coupon bonds. The Company will deliver
promptly to the Trustee such documents, certificates and opinions
as the Trustee may reasonably request in connection with
subjection of any securities to the lien of this Indenture to the
extent contemplated hereby.
Section 3.02. Disposition of Payments on Pledged Property.
Unless and until all Outstanding Securities have been paid
in full or provision for the payment of such Securities has been
made in accordance with this Indenture, the Trustee shall be
entitled to receive all principal, premium, if any, and interest
paid in respect of any Pledged Lessor Notes and interest paid on
bonds or other obligations or indebtedness which may be subject
to the lien of this Indenture and shall apply the same to the
payment of the principal of and premium, if any, and interest on
the Securities when and as they become due and payable pursuant
to, and in accordance with, this Indenture. The Trustee shall
duly note on the schedules attached to the Pledged Lessor Notes
or by other appropriate means all payments of principal, premium,
if any, and interest made on the Pledged Lessor Notes.
Section 3.03. Exercise of Rights and Powers Under Pledged Lessor
Notes and Lease Indentures.
The Trustee shall not take any action as the holder of the
Pledged Lessor Notes to direct any Lease Indenture Trustee in any
respect or to vote any Pledged Lessor Note or any portion thereof
except as specified in this Section. The Trustee shall give
notice to the Holders of the occurrence of any event of default
or default under any Lease Indenture, and of every Event of Loss
or Deemed Loss Event occurring under a Lease (as such terms are
therein defined), but only to the extent the same shall actually
be known by a Responsible Officer. The Trustee may, at any time,
and shall, upon the written request of any Lease Indenture
Trustee made to the Trustee to give any direction or to vote its
interest in the Pledged Lessor Notes, request from Holders
directions as to (a) whether or not to direct such Lease
Indenture Trustee to take or refrain from taking any action which
holders of Pledged Lessor Notes have the option to direct and (b)
how to vote any Pledged Lessor Note if a vote has been called for
with respect thereon. In addition, any Holder may at any time
request the Trustee to direct, or to participate in the direction
of, any action under any Lease Indenture to the extent that the
Trustee may do so under such Lease Indenture. Upon receiving
from Holders any written directions as to the taking or the
refraining from taking, of any action, or the voting of any
Pledged Lessor Note, the Trustee shall specify to the related
Lease Indenture Trustee the principal amount of the Pledged
Lessor Note which is in favor of the action or vote, the
principal amount of the Pledged Lessor Note which is opposed to
the action or vote, and the principal amount of the Pledged
Lessor Note which is not taking any position for the action or
vote. Such principal amounts shall be determined by allocating
to the total principal amount of the Pledged Lessor Notes with
respect to which direction is to be given the proportionate
principal amount of Securities taking corresponding positions or
not taking any position, based on the aggregate principal amount
of Outstanding Securities. In addition, the Trustee shall
certify to the Lease Indenture Trustee that the principal amounts
of Securities taking such corresponding positions or not taking
any position were determined in accordance with the provisions of
this Indenture.
Section 3.04. Certain Actions in Case of Judicial Proceedings.
In case all or any part of the property of any Lessor or
any other Person which may be deemed an obligor in respect of the
Pledged Lessor Notes shall be sold at any judicial or other
involuntary sale, the Trustee shall receive any portion of the
proceeds of such sale payable in respect of the Pledged Property,
and such proceeds shall be held as provided in Section 3.05.
Section 3.05. Cash Held by Trustee Treated as a Deposit.
Any and all cash held by the Trustee under any provision of
this Indenture shall be treated by the Trustee, until required to
be paid out hereunder, as a deposit, in trust, without any
liability for interest.
Section 3.06. Substituted Lessee.
No Person shall be substituted as lessee under a Lease
pursuant to Section 6.8(c) of a Lease Indenture unless (i) the
same Person is substituted as lessee under each Lease pursuant to
that Section 6.8(c), and (ii) such Person assumes all of SERI's
obligations hereunder. If any Person is substituted as lessee in
accordance with the preceding sentence, SERI shall be deemed to
be released and discharged from any further obligation hereunder
upon the assumption by such Person of SERI's obligations
hereunder.
ARTICLE FOUR
Withdrawal of Collateral
Section 4.01. Withdrawal of Collateral.
Except as provided in Section 4.02, none of the Pledged
Property shall be subject to withdrawal unless and until all
Outstanding Securities have been paid in full or provision for
such payment has been made in accordance with the terms of this
Indenture and the Trustee shall have received the documents and
opinions required by Section 4.02 or Article Twelve.
Section 4.02. Reassignment of Pledged Lessor Notes upon Payment.
Upon receipt of payment in full of the principal of and
premium, if any, and interest on any Pledged Lessor Note held by
the Trustee, the Trustee shall deliver to the Company said
Pledged Lessor Note and any instrument of transfer or assignment
necessary to reassign to the Company said Pledged Lessor Note and
the interest of the Company, if any, in the Lease Indenture
relating thereto; provided, however, that nothing herein
contained shall prevent the Trustee from presenting any Pledged
Lessor Note to the related Lease Indenture Trustee for final
payment in accordance with the applicable provisions of the
related Lease Indenture.
ARTICLE FIVE
Covenants
Section 5.01. Payment of Principal, Premium, if any, and
Interest.
The Company shall duly and punctually pay, or cause to be
paid, the principal of and premium, if any, and interest on the
Securities in accordance with the terms of the Securities and
this Indenture, subject, however, to Section 2.14 hereof.
Section 5.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York, and in such other Places of Payment as shall be
specified for the Securities of any series, an office or agency
where Securities may be presented or surrendered for payment of
principal, premium, if any, and interest, where Securities may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of
Securities and this Indenture may be served. The Corporate Trust
Office is hereby initially designated as one such office or
agency. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of
each such office or agency and prompt notice to the Holders in
the manner specified in Section 1.06. If at any time the Company
shall fail to maintain any such office or agency, or shall fail
to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served by the Corporate Trust Office, and the Company hereby
appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that 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 1.06, of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 5.03. Money for Security Payments to be Held in Trust.
All moneys deposited with the Trustee or with any Paying
Agent for the purpose of paying the principal of or premium (if
any) or interest on Securities shall be deposited and held in
trust for the benefit of the Holders of the Securities entitled
to such principal, premium (if any) or interest, subject to the
provisions of this Indenture. Moneys so deposited and held in
trust shall not be a part of the Pledged Property but shall
constitute a separate trust fund for the benefit of the Holders
of the relevant Securities.
The Company may at any time direct any Paying Agent to pay
to the Trustee all sums held in trust by such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent, and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent in
trust for the payment of the principal of or premium, if any, or
interest on any Security and remaining unclaimed for three years
(or such lesser period as may be required by law to give effect
to this provision) after such principal, premium or interest has
become due and payable shall be paid to the Company on Company
Request (to the extent such monies shall have been deposited by
the Company) or to any other Person on its written request (to
the extent such monies shall have been deposited by such other
Person), and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company or such
other Person, as the case may be, for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such repayment, shall, at the expense of the Company or, to
the extent such monies are to be paid to another Person, such
other Person, cause to be published once, in an Authorized
Newspaper in The City of New York and each other city, if any, in
which a Place of Payment is located, notice that such money
remains unclaimed and that, after a date specified herein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company or such other Person. As used herein, "Authorized
Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily
published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in The
City of New York and each other city, if any, in which a Place of
Payment is located. In case by reason of the suspension of
publication of any Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice as
herein provided, then such notification as shall be given with
the approval of the Trustee shall constitute sufficient notice.
Section 5.04. Maintenance of Corporate Existence.
The Company, at its own cost and expense, will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises,
except as otherwise specifically permitted in this Indenture,
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof will not have any material adverse
effect on the Holders of the Securities.
Section 5.05. Protection of Pledged Property.
The Company and SERI will from time to time execute and
deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of
further assurance and other instruments as shall be necessary to
(i) make more effective the pledge and assignment
hereunder of all or any portion of the Pledged Property,
(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof,
(iii) perfect, publish notice of or protect the validity of
any grant made or to be made by this Indenture,
(iv) enforce any of the Securities, or
(v) preserve and defend title to any Securities or other
instrument included in the Pledged Property and the rights
of the Trustee, and of the Holders, in such Securities or
other instrument against the claims of all persons and
parties.
Each of the Company and SERI hereby designates the Trustee its
agent and attorney-in-fact to execute any financing statement,
continuation statement or other instrument required pursuant to
this Section.
Section 5.06. Opinions as to Pledged Property.
Promptly after the execution and delivery of this Indenture
and of each Series Supplemental Indenture or other supplemental
indenture or other instrument of further assurance, the Company
shall furnish to the Trustee such Opinion or Opinions of Counsel
as the Trustee may reasonably request stating that, in the
opinion of such Counsel, this Indenture and all such Series
Supplemental Indentures, other supplemental indentures and other
instruments of further assurance have been properly recorded,
filed, re-recorded and re-filed to the extent necessary to make
effective the lien intended to be created by this Indenture, and
reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, and stating
that all financing statements and continuation statements have
been executed and filed that are then necessary fully to preserve
and protect the rights of the Holders and the Trustee, or stating
that, in the opinion of such Counsel, no such action is necessary
to make such lien effective.
On or before May 1, in each calendar year, beginning with
the first calendar year commencing more than three months after
the date of authentication and delivery of any Securities, the
Company shall furnish to the Trustee such Opinion or Opinions of
Counsel as are reasonably satisfactory to the Trustee, either
stating that, in the opinion of such Counsel, such action has
been taken with respect to the recording, filing, re-recording
and re-filing of this Indenture, any Series Supplemental
Indenture and any other requisite documents and with respect to
the execution and filing of any financing statements and
continuation statements as is then necessary to maintain the lien
and security interest created by this Indenture with respect to
the Pledged Property and reciting the details of such action or
stating that, in the opinion of such Counsel, no such action is
then necessary to maintain such lien and security interest. Such
Opinion or Opinions of Counsel shall also describe the recording,
filing, re-recording and re-filing of this Indenture, any Series
Supplemental Indenture and any other requisite documents and the
execution and filing of and financing statements and continuation
statements that will, in the opinion of such Counsel, be required
to maintain the lien of this Indenture with respect to the
Pledged Property until in the following calendar year.
Section 5.07. Performance of Obligations.
Neither the Company nor SERI will take or omit to take any
action the taking or omission of which would release any Person
from any of such Person's covenants or obligations under
instruments included in the Pledged Property, or which would
result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effective
ness of, any such instrument, except as expressly provided in
this Indenture or such instrument.
Section 5.08. Negative Covenants.
During such time as any Security issued hereunder is
Outstanding, the Company will not:
(a) sell, transfer, exchange or otherwise dispose of
any portion of the Pledged Property except as expressly
permitted by this Indenture;
(b) (i) engage in any business or activity (A) other
than in connection with, or relating to, the issuance of
Securities pursuant to this Indenture and application of
the proceeds thereof as herein provided or (B) which would
cause the Company to be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended
or (ii) amend Article Third, Fourth or Sixth of its
Certificate of Incorporation as in effect on the date of
execution and delivery of this Indenture; notwithstanding
the foregoing, however, the Company may, with respect to
the Securities of one or more series enter into credit or
liquidity support facilities (including, but without
limitation, bank letters of credit, bank lines of credit,
surety bonds and bonds of insurance);
(c) issue bonds, notes or other evidences of
indebtedness other than (A) Securities issued hereunder or
(B) evidences of indebtedness permitted by clause (b)
above;
(d) assume or guarantee any indebtedness of any
Person;
(e) dissolve or liquidate in whole or in part;
(f) take any action which would (i) permit the
validity or effectiveness of this Indenture or the pledge
and assignment of any of the Pledged Property to be
impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any
covenant or obligation under this Indenture, (ii) permit
any lien, charge, security, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Pledged
Property or any part thereof or any interest therein or the
proceeds thereof or (iii) permit the lien of this Indenture
not to constitute a valid first priority security interest
in the Pledged Property; or
(g) institute any proceedings to be adjudicated a
bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a
petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other
applicable federal or state law or law of the District of
Columbia, or consent to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Company or any substantial part of its property, or make an
assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they
become due, or take any corporate action in furtherance of
the foregoing.
Section 5.09. Annual Statement as to Compliance.
(a) Each of SERI and the Company shall deliver to the
Trustee, on or before 120 days after the end of each of its
fiscal years, a written statement (which need not comply
with Section 1.02) signed by its President or one of its
Vice Presidents and by its Treasurer or one of its
Assistant Treasurers or its Comptroller or one of its
Assistant Comptroller, stating, as to each signer thereof,
that
(i) a review of the activities of SERI or the Company,
as the case may be, required during such year of SERI or
the Company, as the case may be, under this Indenture has
been made under their supervision; and
(ii) to the best of their knowledge, based on such
review, SERI or the Company, as the case may be, has
fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and
status thereof.
(b) Each of SERI and the Company shall deliver to the
Trustee, promptly after having obtained knowledge thereof,
written notice of any Event of Default under Section 8.01 or
event which with the giving of notice or lapse of time, or both,
would become an Event of Default.
Section 5.10. Delivery of Certificate of Independent Public
Accountant.
SERI shall cause to be delivered to the Trustee any
certificate of an independent certified public accountant (who
shall not be an employee of the Company, SERI or any Affiliate of
either of them) delivered to any Lease Indenture Trustee pursuant
to Section 2.4(c) of any Lease Indenture.
Section 5.11. Delivery of Certificate of Engineer, Appraiser or
Other Expert.
In connection with any release from the security and other
interest created by Section 2.1 of any Lease Indenture of a
portion of the Lease Indenture Estate (as defined in such Lease
Indenture) pursuant to Section 2.3 of such Lease Indenture, at
its own expense SERI shall cause to be delivered to the Trustee a
certificate of an engineer, appraiser or other expert as to the
fair value of any portion of the Lease Indenture Estate to be
released from the lien of such Lease Indenture and such
certificate shall state that in the opinion of the Person making
the same the proposed release will not impair the security under
such Lease Indenture in contravention of the provisions thereof.
If the fair value of the portion of the Lease Indenture Estate to
be released and all other portions of the Lease Indenture Estate
released since the commencement of the then current calendar
year, as set forth in the certificate required pursuant to this
Section 5.11, is 10%, or more of the aggregate principal amount
of Securities at the time Outstanding, such certificate shall be
made by an independent engineer, appraiser or other expert;
provided, however, that a certificate of an independent engineer,
appraiser or other expert shall not be required in the case of
any release of portions of the Lease Indenture Estate if the fair
value thereof as set forth in the certificate or opinion required
by this Section 5.11 is less than $25,000 or less than 1% of the
aggregate principal amount of Securities at the time Outstanding.
ARTICLE SIX
Redemption of Securities
Section 6.01. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity of principal shall be redeemable in accordance
with their terms and (except as otherwise specified in the Series
Supplemental Indenture creating such series) in accordance with
this Article.
Section 6.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
otherwise than through a Sinking Fund shall be evidenced by a
Company Order. 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), deliver to the Trustee a
Company Order specifying such Redemption Date and the series and
principal amount of 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 Officers' Certificate evidencing compliance with
such restriction or condition. The election by SERI to terminate
a Lease pursuant to Section 13(f) or (g) or Section 14 thereof,
or Section 10(b)(3)(ix) of the related Participation Agreement,
shall constitute an election by the Company to redeem Securities
(but shall not relieve the Company of its obligation hereunder to
deliver to the Trustee the Company Order herein provided for)
subject, however, except in the case of a termination pursuant to
Section 14 of such Lease, to the right of SERI to assume the
Lessor Notes related to such Lease on the Lease termination date,
in which event there shall be no redemption of Securities solely
as a consequence of such termination.
Section 6.03. Selection by Trustee of Securities to be Redeemed.
(a) If any Lease is to be terminated pursuant to Section
13(f) or (g) or Section 14 thereof, or Section 10(b)(3)(ix) of
the related Participation Agreement, and all Lessor Notes issued
under the related Lease Indenture are to be prepaid, the Company
shall redeem Securities which (i) are of the series corresponding
to the series of Pledged Lessor Notes to be so prepaid and (ii)
have amounts of principal payable on Stated Maturities and
Sinking Fund Redemption Dates or Installment Payment Dates which
correspond to the amounts and dates for the payment of the
principal of such Pledged Lessor Notes plus any accrued interest
to the Redemption Date, such redemption of Securities to be made
on the date on which such Lessor Notes are to be so prepaid.
(b) If less than all the Securities are to be redeemed
otherwise than as contemplated in subsection (a) of this Section
6.03 and otherwise than through a Sinking Fund, the particular
Securities to be redeemed shall be selected from the series and
Stated Maturities, and in the principal amounts, designated to
the Trustee in the Company Order required by Section 6.02.
(c) Subject to the provisions of subsections (a) and (b)
of this Section 6.03, if less than all the Securities of any
series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by lot in
such manner as shall provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of such series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of such series except as otherwise specified in the
Series Supplemental Indenture creating such series; provided,
however, that if the Company, SERI or an Affiliate or nominee of
either thereof shall be the Holder of Securities of any series to
be redeemed through a Sinking Fund, the Trustee, if so directed
in a Company Order or SERI Order, as the case may be, shall first
select such Securities for redemption. Any such Company Order or
SERI Order shall state that such redemption is in accordance with
Section 10(b)(3)(vi) of each Participation Agreement.
If more than one Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or Section
10(b)(3)(ix) of the related Participation Agreement, and the
Lessor Notes relating to each such Lease are to be prepaid on the
same date, the Trustee shall separately designate the Securities
to be redeemed in respect of each such Lease termination.
The Trustee shall promptly notify the Company 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 6.04. Notice of Redemption.
Notice of redemption (including Sinking Fund redemption)
shall be given in the manner provided in Section 1.06 to the
Holders of Securities to be redeemed not less than 20 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any
series are to be redeemed, the identification of the
particular Securities to be redeemed, including the series
and Stated Maturity of principal, and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price
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
(f) that the redemption is pursuant to the operation
of a Sinking Fund, if such is the case.
With respect to any notice of redemption of Securities
otherwise than through a Sinking Fund, unless, upon the giving of
such notice, such Securities shall be deemed to have been paid in
accordance with Section 12.01, such notice shall state that such
redemption shall be conditional upon the receipt by the Trustee,
on or prior to the date fixed for such redemption of money
sufficient to pay the principal of and premium, if any, and
interest 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.
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 Trustee in the name
and at the expense of the Company.
Section 6.05. 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) such Securities or portions thereof 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 at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however
that 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
2.10.
Section 6.06. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefore (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), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE SEVEN
Sinking Funds
Section 7.01. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series
except as otherwise specified in the Series Supplemental
Indenture creating the Securities of such series.
Section 7.02. Sinking Funds for Securities.
Any Series Supplemental Indenture may provide for a sinking
fund for the retirement of the Securities of the series created
thereby (herein called a "Sinking Fund") in accordance with which
the Company will be required to redeem on the dates set forth
therein (hereinafter called "Sinking Fund Redemption Dates")
Securities of principal amounts set forth therein (hereinafter
called "Sinking Fund Requirements").
If there shall have been a redemption, otherwise than
through a Sinking Fund, of less than all the Securities of a
series to which a Sinking Fund is applicable (such redeemed
Securities being hereinafter called the "Redeemed Securities"),
the Sinking Fund Requirements relating to the Securities of such
series for each Sinking Fund Redemption Date thereafter shall be
deemed to have been satisfied to the extent of an amount equal to
the quotient resulting from the division of (A) the product of
(w) the principal amount of the Redeemed Securities and (x) such
Sinking Fund Requirement by (B) the sum of (y) the aggregate
principal amount of Securities of such series then Outstanding
(after giving effect to such redemption) and (z) the principal
amount of such Redeemed Securities; provided, however, that the
remaining Sinking Fund Requirements determined as set forth in
this paragraph shall be rounded to the nearest integral multiple
of the minimum authorized denomination for Securities of such
series, subject to necessary adjustment so that the aggregate
principal amount of such satisfaction of Sinking Fund
Requirements shall be equal to the aggregate principal amount of
such Redeemed Securities, such adjustment to such Sinking Fund
Requirements to be made in the inverse order of the respective
Sinking Fund Redemption Dates corresponding thereto and;
provided, further, that, notwithstanding the provisions of the
foregoing proviso, any such adjustment shall be made in a manner
such that, after giving effect thereto, the provisions of clause
(b) of the last paragraph of Section 2.03 hereof shall continue
to be complied with.
Particular Securities to be redeemed through a Sinking Fund
shall be selected in the manner provided in Section 6.03, and
notice of such redemption shall be given in the manner provided
in Section 6.04.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 8.01. Events of Default.
"Events of Default", wherever used herein, means any one of
the following events:
(a) failure to pay any interest on any Security when
it becomes due and payable, and the continuation of such
failure for a period of 10 days; or
(b) failure to pay principal of or premium, if any, on
any Security when it becomes due and payable, whether at
its Stated Maturity of principal, on any applicable
Redemption Date or Installment Payment Date or at any other
time, and the continuation of such failure for a period of
10 days; or
(c) failure on the part of either the Company or SERI
to perform or observe any covenant or agreement herein to
be performed or observed by it, and the continuation of
such failure for a period of 30 days after notice thereof
shall have been given to the Company or SERI, as the case
may be, by the Trustee, or to the Company or SERI, as the
case may be, and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities,
specifying such failure and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; provided, however, that the continuation of such
failure for a period of 30 days or more after such notice
has been so given (but in no event for a period which is
greater than one year after such notice has been given)
shall not constitute an Event of Default if (i) such
failure can be remedied but cannot be remedied within such
30 days, (ii) the Company or SERI, as the case may be, is
diligent in pursuing a remedy of such failure and (iii)
such failure does not impair in any respect the lien and
security interest created hereby; or
(d) the occurrence of an "Event of Default" under any
Lease Indenture; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the
Federal Bankruptcy Act or any other applicable federal or
state law or law of the District of Columbia, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any
substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuation of
any such decree or order unstayed and in effect for a
period of 75 consecutive days; or
(f) the institution by the Company of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable federal
or state law or law of the District of Columbia, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other 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 taking of
corporate action by the Company in furtherance of any such
action.
Section 8.02. Acceleration of Maturity; Rescission and
Annulment.
Upon the occurrence of an Event of Default, (a) if such
Event of Default is one referred to in clause (a), (b),
(c), (e) or (f) of Section 8.01, the Trustee may, and upon
the direction of the Holders of not less than a majority in
principal amount of the Securities Outstanding shall, and
(b) if such Event of Default is the one referred to in
clause (d) of Section 8.01 (including without limitation an
event of default under any Lease which has resulted in an
Event of Default referred to in clause (a) or (b) of
Section 8.01) under circumstances in which the related
Pledged Lessor Notes have been declared immediately due and
payable, the Trustee shall declare the principal of all the
Securities to be due and payable immediately, by a notice
in writing to the Company and SERI, and upon any such
declaration such principal shall become immediately due and
payable; provided that no such declaration shall be made
(and no action under Section 8.03 or 8.05 shall be taken)
in cases in which the Event of Default is one referred to
in clause (a) or (b) of Section 8.01 which resulted
directly from a failure of SERI to make any payment of rent
under any Lease until such time as the Lessor under such
Lease has been given the opportunity to exercise its rights
under Section 6.8 of the related Lease Indenture.
At any time after such a declaration of acceleration has
been made and before any sale of the Pledged Property, or
any part thereof, shall have been made pursuant to any
power of sale as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Securities
Outstanding, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if
(1) there shall have been paid to or deposited with
the Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
Securities,
(B) the principal of and premium, if any, on any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the
respective rates provided in the Securities for late
payments of principal or premium,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest
at the respective rates provided in the Securities for
late payments of interest, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel, and
(2) all Events of Default, other than the non-payment
of the principal of Securities which have become due solely
by such acceleration, have been cured or waived as provided
in Section 8.08.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
If a declaration of acceleration shall have been rescinded
and annulled as provided in the next preceding paragraph, and if,
prior to such rescission and annulment, the maturity of the
Pledged Lessor Notes issued under any Lease Indenture had been
accelerated as a result of an "Event of Default" thereunder, the
Trustee, as the holder of such Pledged Lessor Notes, shall direct
the Lease Indenture Trustee under such Lease Indenture to rescind
and annul such acceleration of such Pledged Lessor Notes and to
terminate any proceedings to enforce remedies under such Lease
Indenture and the related Lease.
Section 8.03. Trustee's Power of Sale of Pledged Property;
Notice Required; Power to Bring Suit.
If an Event of Default shall have occurred and be
continuing, subject to the provisions of Sections 8.06 and 8.07
and the proviso to the first paragraph of Section 8.02, the
Trustee, by such officer or agent as it may appoint, may:
(1) sell, to the extent permitted by law, without
recourse, for cash or credit or for other property, for
immediate or future delivery, and for such price or prices
and on such terms as the Trustee in its discretion may
determine, the Pledged Property as an entirety, or in any
such portions as the Holders of a majority in aggregate
principal amount of the Securities then Outstanding shall
request by an Act of Holders, or, in the absence of such
request, as the Trustee in its discretion shall deem
expedient in the interest of the Securityholders, at public
or private sale; and/or
(2) proceed by one or more suits, actions or
proceedings at law or in equity or otherwise or by any
other appropriate remedy, to enforce payment of the
Securities or Pledged Lessor Notes, or to foreclose this
Indenture or to sell the Pledged Property under a judgment
or decree of a court or courts of competent jurisdiction,
or by the enforcement of any such other appropriate legal
or equitable remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce
any of its rights or powers or any of the rights or powers
of the Holders.
ln the event that the Trustee shall deem it advisable to
sell any of or all the Pledged Property in accordance with the
provisions of this Section, the Company and SERI agree that if
registration of any such Pledged Property shall be required, in
the opinion of counsel for the Trustee, under the Securities Act
of 1933 or other applicable law, and regulations promulgated
thereunder, and if SERI shall not effect, or cause to be
effected, such registration promptly, the Trustee may sell any
such Pledged Property at a private sale, and no Person shall
attempt to maintain that the prices at which such Pledged
Property is sold are inadequate by reason of the failure to sell
at public sale, or hold the Trustee liable therefor.
Section 8.04. Incidents of Sale of Pledged Property.
Upon any sale of all or any part of the Pledged Property
made either under the power of sale given under this Indenture or
under judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this Indenture,
the following shall be applicable:
(1) Securities Due and Payable. The principal of and
premium, if any, and accrued interest on the Securities, if
not previously due, shall immediately become and be due and
payable.
(2) Trustee Appointed Attorney of Company to Make
Conveyances. The Trustee is hereby irrevocably appointed
the true and lawful attorney of the Company, in its name
and stead, to make all necessary deeds, bills of sale and
instruments of assignment, transfer or conveyance of the
property thus sold, and for that purpose the Trustee may
execute all such documents and instruments and may
substitute one or more persons with like power. The
Company hereby ratifies and confirms all that its said
attorneys, or such substitute or substitutes, shall
lawfully do by virtue hereof.
(3) Company to Confirm Sales and Conveyances. If so
requested by the Trustee or by any purchaser, the Company
shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such
purchaser or purchasers all proper deeds, bills of sale,
instruments of assignment, conveyance or transfer and
releases as may be designated in any such request.
(4) Holders and Trustee May Purchase Pledged Property.
Any Holder or the Trustee may bid for and purchase any of
the Pledged Property and, upon compliance with the terms of
sale, may hold, retain, possess and dispose of such Pledged
Property in his or its own absolute right without further
accountability.
(5) Purchaser at Sale May Apply Securities to Purchase
Price. Any purchaser at any such sale may, in paying the
purchase price, deliver any of the Securities then
Outstanding in lieu of cash and apply to the purchase price
the amount which shall, upon distribution of the net
proceeds of such sale, after application to the costs of
the action and any other sums which the Trustee is
authorized to deduct under this Indenture, be payable on
such Securities so delivered in respect of principal,
premium, if any, and interest. In case the amount so
payable on such Securities shall be less than the amount
due thereon, duly executed and authenticated Securities
shall be delivered in exchange therefor to the Holder
thereof for the balance of the amount due on such
Securities so delivered by such Holder.
(6) Receipt of Trustee Shall Discharge Purchaser. The
receipt of the Trustee or of the officer making such sale
under judicial proceedings shall be a sufficient discharge
to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such
purchaser or his personal representative or assigns shall
not be obliged to see to the application of such purchase
money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(7) Sale To Divest Rights of Company in Property Sold.
Any such sale shall operate to divest the Company of all
right, title, interest, claim and demand whatsoever, either
at law or in equity or otherwise, in and to the Pledged
Property so sold, and shall be a perpetual bar both at law
and in equity or otherwise against the Company, and its
successors and assigns, and any and all persons claiming or
who may claim the Pledged Property sold or any part thereof
from, through or under the Company, or its successors and
assigns.
(8) Application of Moneys Received upon Sale. Any
moneys collected by the Trustee upon any sale made either
under the power of sale given by this Indenture or under
judgment or decree in any judicial proceedings for
foreclosure or otherwise for the enforcement of this
Indenture, shall be applied as provided in Section 8.12.
Section 8.05. Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. If there shall be a
failure to make payment of the principal of any Security at
its Stated Maturity or upon Sinking Fund redemption,
declaration of acceleration or otherwise,or if there shall
be a failure to pay the premium, if any, or interest on any
Security when the same becomes due and payable, then the
Trustee, if any such failure shall continue for 15 days, in
its own name, and as trustee of an express trust, shall be
entitled, and empowered subject to the proviso to the first
paragraph of Section 8.02, to institute any suits, actions
or proceedings at law, in equity or otherwise, for the
collection of the sums so due and unpaid on the Securities,
and may prosecute any such claim or proceeding to judgment
or final decree, and may enforce any such judgment or final
decree and collect the moneys adjudged or decreed to be
payable in any manner provided by law, whether before or
after or during the pendency of any proceedings for the
enforcement of the Lien of this Indenture, or of any of the
Trustee's rights or the rights of the Securityholders under
this Indenture, and such power of the Trustee shall not be
affected by any sale hereunder or by the exercise of any
other right, power or remedy for the enforcement of the
provisions of this Indenture or for the foreclosure of the
lien hereof.
(b) Trustee May Recover Unpaid Indebtedness after Sale
of Pledged Property. In the case of a sale of the Pledged
Property and of the application of the proceeds of such
sale to the payment of the indebtedness secured by this
Indenture, the Trustee in its own name, and as trustee of
an express trust, shall be entitled and empowered, by any
appropriate means, legal, equitable or otherwise, to
enforce payment of, and to receive all amounts then
remaining due and unpaid upon, all or any of the
Securities, for the benefit of the Holders thereof, and
upon any other portion of the indebtedness remaining
unpaid, with interest at the rates specified in the
respective Securities on the overdue principal of, and
premium, if any, and (to the extent that payment of such
interest is legally enforceable) on the overdue
installments of interest.
(c) Recovery of Judgment Does Not Affect Lien of this
Indenture or Other Rights. No recovery of any such
judgment or final decree by the Trustee and no levy of any
execution under any such judgment upon any of the Pledged
Property, or upon any other property, shall in any manner
or to any extent affect the Lien of this Indenture upon any
of the Pledged Property, or any rights, powers or remedies
of the Trustee, or any liens, rights, powers or remedies of
the Holders, but all such liens, rights, powers and
remedies shall continue unimpaired as before.
(d) Trustee May File Proofs of Claim; Appointment of
Trustee as Attorney-in-Fact in Judicial Proceedings. The
Trustee in its own name, or as trustee of an express trust,
or as attorney-in-fact for the Holders, or in any one or
more of such capacities (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 for the payment of overdue principal, premium, if
any, or interest), shall be entitled and empowered to file
such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of
the Trustee and of the Holders (whether such claims be
based upon the provisions of the Securities or of this
Indenture) allowed in any equity, receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization or
any other judicial proceedings relative to the Company or
any obligor on the Securities (within the meaning of the
TIA), the creditors of the Company or any such obligor, the
Pledged Property or any other property of the Company or
any such obligor, and any 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
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel (it being agreed by the parties hereto that such
amounts shall be considered administrative expenses for the
purposes of any bankruptcy proceeding). The Trustee is
hereby irrevocably appointed (and the successive respective
Holders of the Securities, by taking and holding the same,
shall be conclusively deemed to have so appointed the
Trustee) the true and lawful attorney-in-fact of the
respective Holders, with authority to (i) make and file in
the respective names of the Holders (subject to deduction
from any such claims of the amounts of any claims filed by
any of the Holders themselves), any claim, proof of claim
or amendment thereof, debt, proof of debt or amendment
thereof, petition or other document in any such proceedings
and to receive payment of any amounts distributable on
account thereof, (ii) execute any such other papers and
documents and to do and perform any and all such acts and
things for and on behalf of such Holders, as may be
necessary or advisable in order to have the respective
claims of the Trustee and of the Holders against the
Company or any such obligor, the Pledged Property or any
other property of the Company or any such obligor allowed
in any such proceeding and (iii) receive payment of or on
account of such claims and debt; provided, however, that
nothing contained in this Indenture shall be deemed to give
to the Trustee any right to accept or consent to any plan
of reorganization or otherwise by action of any character
in any such proceeding to waive or change in any way any
right of any Securityholder. Any moneys collected by the
Trustee under this Section shall be applied as provided in
Section 8.12.
(e) Trustee Need Not Have Possession of Securities.
All rights of action and of asserting claims under this
Indenture or under any of the Securities enforceable by the
Trustee may be enforced by the Trustee without possession
of any of such Securities or the production thereof at the
trial or other proceedings relative thereto.
(f) Suit To Be Brought for Ratable Benefit of Holders.
Any suit, action or other proceeding at law, in equity or
otherwise which shall be instituted by the Trustee under
any of the provisions of this Indenture shall be for the
equal, ratable and common benefit of all the Holders,
subject to the provisions of this Indenture.
(g) Trustee May Be Restored to Former Position and
Rights in Certain Circumstances. In case the Trustee shall
have proceeded to enforce any right under this Indenture by
suit, foreclosure or otherwise and such proceedings shall
have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then
in every such case, the Company, SERI and the Trustee shall
be restored without further act to their respective former
positions and rights hereunder, and all rights, remedies
and powers of the Trustee shall continue as though no such
proceedings had been taken.
Section 8.06. Holders May Demand Enforcement of Rights by
Trustee.
If an Event of Default shall have occurred and shall be
continuing, the Trustee shall, upon the written request of
the Holders of a majority in aggregate principal amount of
the Securities then Outstanding and upon the offering of
security or indemnity as provided in Section 9.03(e), but
subject in all cases to the provisions of Section 3.03 and
the proviso to the first paragraph of Section 8.02, proceed
to institute one or more suits, actions or proceedings at
law, in equity or otherwise, or take any other appropriate
remedy, to enforce payment of the principal of or premium
(if any) or interest on the Securities or Pledged Lessor
Notes or to foreclose this Indenture or to sell the Pledged
Property under a judgment or decree of a court or courts of
competent jurisdiction or under the power of sale herein
granted, or take such other appropriate legal, equitable or
other remedy, as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the
rights or powers of the Trustee or the Securityholders, or,
in case such Securityholders shall have requested a
specific method of enforcement permitted hereunder, in the
manner requested, provided that such action shall not be
otherwise than in accordance with law and the provisions of
this Indenture, and the Trustee, subject to such indemnity
provisions, shall have the right to decline to follow any
such request if the Trustee in good faith shall determine
that the suit, proceeding or exercise of the remedy so
requested would involve the Trustee in personal liability
or expense.
Section 8.07. Control by Holders.
The Holders of not less than a majority in principal
amount of the Outstanding Securities 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,
provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Section 8.08. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default
hereunder and its consequences, except that only the
Holders of all Securities affected thereby may waive a
default
(1) in the payment of the principal of or premium, if
any, or interest on such Securities or
(2) in respect of a covenant or provision hereof which
under Article Eleven cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected.
Upon any such waiver, such default shall cease to exist,
and any Event 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 8.09. Proceedings Instituted by Holder.
A Holder shall not have the right to institute any suit,
action or proceeding at law or in equity or otherwise for the
foreclosure of this Indenture, for the appointment of a receiver
or for the enforcement of any other remedy under or upon this
Indenture, unless:
(1) such Holder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then Outstanding shall have
requested the Trustee in writing to institute such action,
suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 9.03(e);
(3) the Trustee shall have refused or neglected to
institute any such action, suit or proceeding for 60 days
after receipt of such notice, request and offer of
indemnity; and
(4) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
Outstanding Securities.
It is understood and intended that no one or more of the
Holders shall have any right in any manner whatever hereunder or
under the Securities to (i) surrender, impair, waive, affect,
disturb or prejudice the Lien of this Indenture on any property
subject thereto or the rights of the Holders of any other
Securities, (ii) obtain or seek to obtain priority or preference
over any other such Holder or (iii) enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all the Holders subject to
the provisions of this Indenture.
Section 8.10. Undertaking To Pay Court Costs.
All parties to this Indenture, and each Holder by his
acceptance of a Security, shall be deemed to have agreed that any
court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this
Indenture, or in any suit, action or proceeding against the
Trustee for any action taken or omitted by it as Trustee
hereunder, the filing by any party litigant in such suit, action
or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, action or proceeding,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that the
provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by the Trustee, (b) any suit,
action or proceeding instituted by any Holder or group of Holders
holding in the aggregate more than 10% in aggregate principal
amount of the Securities then Outstanding or (c) any suit, action
or proceeding instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest on
any of the Securities, on or after the respective due dates
expressed therein.
Section 8.11. Right of Holders To Receive Payment Not To Be
Impaired.
Anything in this Indenture to the contrary notwithstanding,
the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and interest on such Security,
on or after the respective due dates expressed in such Security
(or, in case of redemption, on the Redemption Date fixed for such
Security), or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 8.12. Application of Moneys Collected by Trustee.
Any moneys collected or to be applied by the Trustee
pursuant to this Article, together with any other moneys which
may then be held by the Trustee under any of the provisions of
this Indenture as security for the Securities (other than moneys
at the time required to be held for the payment of specific
Securities at their Stated Maturities or at a time fixed for the
redemption thereof) shall be applied in the following order from
time to time, on the date or dates fixed by the Trustee and, in
the case of a distribution of such moneys on account of
principal, premium, if any, or interest upon presentation of the
several Outstanding Securities, and stamping thereon of payment,
if only partially paid, and upon surrender thereof, if fully
paid:
First: to the payment of all taxes, assessments or
liens prior to the Lien of this Indenture, except those
subject to which any sale shall have been made, all
reasonable costs and expenses of collection, including the
reasonable costs and expenses of handling the Pledged
Property and of any sale thereof pursuant to the provisions
of this Article and of the enforcement of any remedies
hereunder or under any Lease Indenture, and to the payment
of all amounts due the Trustee or any predecessor Trustee
under Section 9.07, or through the Trustee by any Holder or
Holders;
Second: in case the principal of the Outstanding
Securities or any of them shall not have become due, to the
payment of any interest in default, in the order of the
maturity of the installments of such interest, with
interest at the rates specified in the respective
Securities in respect of overdue payments (to the extent
that payment of such interest shall be legally enforceable)
on the overdue installments thereof;
Third: in case the principal of any of but not all the
Outstanding Securities shall have become due at their
Stated Maturities, on a Redemption Date or otherwise, first
to the payment of accrued interest in the order of the
maturity of the installments thereof with interest at the
respective rates specified in the Securities in respect of
payments on overdue principal, premium, if any, and (to the
extent that payment of such interest shall be legally
enforceable) on overdue installments of interest, and next
to the payment of the principal of all Securities then due;
Fourth: in case the principal of all the Outstanding
Securities shall have become due at their Stated
Maturities, by declaration, on a Redemption Date or
otherwise, to the payment of the whole amount then due and
unpaid upon the Securities then Outstanding for principal,
premium, if any, and interest, together with interest at
the respective rates specified in the Securities in respect
of overdue payments on principal, premium, if any, and (to
the extent that payment of such interest shall be legally
enforceable) on overdue installments of interest; and
Fifth: in case the principal of all the Securities
shall have become due at their Stated Maturities, by
declaration, upon redemption or otherwise, and all of such
Securities shall have been fully paid, together with all
interest (including any interest on overdue payments) and
premium, if any, thereon, any surplus then remaining shall
be paid to the Company, its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, or
as a court of competent jurisdiction may direct;
provided, however, that all payments to be made pursuant to this
Section shall be made ratably to the persons entitled thereto,
without discrimination or preference.
Section 8.13. Securities Held by Certain Persons Not To Share in
Distribution.
Any Securities known to the Trustee to be owned or held by,
or for the account or benefit of, the Company, SERI, or any
Affiliate of either thereof shall not be entitled to share in any
payment or distribution provided for in this Article until all
Securities held by other Persons have been paid in full and all
amounts owing to the Trustee (including without limitation, fees
and expenses of its counsel) pursuant to the Indenture or
otherwise have been paid in full.
Section 8.14. Waiver of Appraisement, Valuation, Stay, Right to
Marshalling.
To the extent it may lawfully do so, each of the Company
and SERI, for itself and for any Person who may claim through or
under it, hereby:
(1) agrees that neither it nor any such Person will
set up, plead, claim or in any manner whatsoever take
advantage of, any appraisement, valuation, stay, extension
or redemption laws, now or hereafter in force in any
jurisdiction, which may delay, prevent or otherwise hinder
(i) the performance or enforcement or foreclosure of this
Indenture, (ii) the sale of any of the Pledged Property or
(iii) the putting of the purchaser or purchasers thereof
into possession of such property immediately after the sale
thereof:
(2) waives all benefit or advantage of any such laws;
(3) waives and releases all rights to have the Pledged
Property marshalled upon any foreclosure, sale or other
enforcement of this Indenture; and
(4) consents and agrees that all the Pledged Property
may at any such sale be sold by the Trustee as an entirety.
Section 8.15. Remedies Cumulative; Delay or Omission Not a
Waiver.
Every remedy given hereunder to the Trustee or to any of
the Holders shall not be exclusive of any other remedy or
remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise. The
Trustee may exercise all or any of the powers, rights or
remedies given to it hereunder or which may now or
hereafter be given by statute, law, or equity or otherwise,
in its absolute discretion. No course of dealing between
the Company or SERI and the Trustee or the Holders or any
delay or omission of the Trustee or of any Holder to
exercise any right, remedy or power accruing upon any Event
of Default shall impair any such right, remedy or power or
shall be construed to be a waiver of any such Event of
Default or of any right of the Trustee or of the Holders or
acquiescence therein, and, subject to the provisions of
Section 8.07, every right, remedy and power given by this
Article 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.
ARTICLE NINE
The Trustee
Section 9.01. Certain Duties and Responsibilities.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act.
(b) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this
Section.
Section 9.02. Notice of Defaults.
In addition to its obligation to give notice to Holders
as provided in Section 3.03, the Trustee shall give the
Holders notice of default hereunder 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 8.01(c) no such notice to
Holders shall be given until at least 30 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 9.03. Certain Rights of Trustee.
Subject to the provisions of Section 9.01 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in
reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture 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 or SERI
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or a SERI Request or SERI
Order, in the case of a request or direction of either the
Company or SERI, as the case may be, and any resolution of
the Board of Directors of the Company or SERI may be
sufficiently evidenced by a Board Resolution of the Company
or SERI, as the case may be;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers'
Certificate of the Company or SERI;
(d) the Trustee may consult with counsel and the
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 of the Holders
pursuant to this Indenture, unless such Holders 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 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 be entitled to examine
the books, records and premises of the Company or SERI,
personally or by agent or attorney at the sole cost and
expense of the Company or SERI, as the case may be;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by
it hereunder;
(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 (i)
a Responsible Officer of the Trustee assigned to the
Corporate Trust & Agency Group of the Trustee (or any
successor division or department of the Trustee) shall have
actual knowledge of the Event of Default or (ii) 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; and
(i) In the event that the Trustee is also acting as
Paying Agent or Security Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this
Article Nine shall also be afforded to such Paying Agent or
Security Registrar.
Section 9.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities,
except the certificates of authentication, shall not be
taken as the statements of the Trustee, and the Trustee
assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Pledged Property or the
Securities, except that the Trustee hereby represents and
warrants that this Indenture has been executed and
delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf. The
Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 9.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar,
any Authenticating Agent or any other agent of the Company
or SERI, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to
Sections 9.08 and 9.13, may otherwise deal with the Company
and SERI with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other
agent.
Section 9.06. Funds May Be Held by Trustee or Paying
Agent.
Any monies held by the Trustee or the Paying Agent
hereunder as part of the Pledged Property may, until paid
out by the Trustee or the Paying Agent as herein provided,
be carried by the Trustee or the Paying Agent on deposit
with itself, and neither the Trustee nor the Paying Agent
shall have any liability for interest upon any such monies.
Section 9.07. Compensation and Reimbursement of Trustee
and Authorized Agents.
Each of the Company and SERI shall be liable, jointly
and severally, to:
(a) pay, or cause to be paid, to each of the Trustee
and any Authorized Agent 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) reimburse, or cause to be reimbursed, each of the
Trustee and any Authorized Agent upon its request for all
expenses, disbursements and advances incurred or made by it
in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its own negligence, willful misconduct or bad faith; and
(c) indemnify, or cause to be indemnified, each of the
Trustee, any predecessor Trustee and any Authorized Agent
for, and hold it harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust or the
performance of its duties hereunder, including the 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.
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, except funds held in trust under Section
12.03.
Section 9.08. 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.
Section 9.09. 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 of America, 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
U.S. 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. No obligor upon the Securities or person directly or
indirectly controlling, controlled by, or under common control
with such obligor shall serve as Trustee upon such Securities.
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 9.10 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 under Section 9.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company and SERI. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Company, SERI and 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.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee, the Company and SERI.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 9.08
after written request therefor by any Owner Trustee, the
Company, SERI or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
9.09 and shall fail to resign after written request
therefor by any Lessor or by any such Securityholder, 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, (i) SERI, acting after consultation with
the Company, may remove the Trustee by Board Resolution or (ii)
subject to Section 8.10, any Holder who has been a bona fide
Holder of a Security 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 and the
appointment of a successor Trustee.
(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, SERI, acting after consultation with the
Company, shall promptly appoint by Board Resolution a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the
Company, SERI and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the
successor Trustee appointed by SERI. If no successor Trustee
shall have been so appointed by SERI, acting after consultation
with the Company, or by the Holders, and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
(g) No Trustee under the Indenture shall be personally
liable for any action or omission of any successor Trustee.
Section 9.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, SERI 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
request of any Owner Trustee, the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 9.07. Upon request of any such
successor Trustee, SERI and the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts.
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 9.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
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 of the
corporate agency or 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 authenti
cated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 9.13. Preferential Collection of Claims against any
Obligor.
If the Trustee shall be or become a creditor of any obligor
(within the meaning of the Trust Indenture Act) upon the
Securities, the Trustee shall be subject to any and all
applicable provisions of the Trustee Indenture Act regarding the
collection of claims against such obligor.
Section 9.14. Authorized Agents.
(a) There shall at all times hereunder be a Paying Agent
authorized by the Company to pay the principal of and premium, if
any, and interest on any Securities and a Security Registrar for
the purpose of registration of and registration of transfer and
exchange of Securities. The Trustee is hereby initially
appointed as Paying Agent and Security Registrar hereunder.
The Company may appoint one or more Paying Agents. Any
Paying Agent (other than one simultaneously serving as the
Trustee) from time to time appointed hereunder shall 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 will:
(1) hold all sums held by it for the payment of
principal of and premium, if any, and interest on
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;
(2) give the Trustee within five days thereafter
notice of any default by any obligor upon the Securities in
the making of any such payment of principal, premium, if
any, or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
Notwithstanding any other provision of this Indenture, any
payment required to be made to or received or held by the Trustee
may, to the extent authorized by written instructions of the
Trustee, be made to or received or held by a Paying Agent in the
Borough of Manhattan, The City of New York, for the account of
the Trustee.
(b) In addition, at any time when any of the Securities
remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities of one or more
series which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original
issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 2.09, 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 (it being understood that
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). If an appointment of an Authenticating
Agent with respect to the Securities of one or more series shall
be made pursuant hereto, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication 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
(c) Any Authorized Agent shall be (i) acceptable to the
Company and SERI, (ii) a bank or trust company, (iii) a
corporation organized and doing business under the laws of the
United States or of any State, Territory or the District of
Columbia, with a combined capital and surplus of at least
$50,000,000, and (iv) authorized under such laws to exercise
corporate trust powers, subject to supervision or examination by
federal or state authorities. If such Authorized Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authorized 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 Authorized
Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authorized Agent shall resign
immediately in the manner and with the effect specified in this
Section.
(d) Any corporation into which any Authorized Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any Authorized Agent shall be a party, or any
corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible
under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or such
Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, SERI and the
Company. The Company may, and at the request of the Trustee or
SERI shall, at any time, terminate the agency of any Authorized
Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of
an Authorized Agent or in case at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions
of such Authorized Agent shall have been appointed), the Company
shall promptly appoint one or more qualified successor Authorized
Agents approved by the Trustee and SERI to perform the functions
of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under
this Section. The Company shall give written notice of any such
appointment to all Holders as their names and addresses appear on
the Security Register. In the event that an Authorized Agent
shall resign or be removed, or be dissolved, or if the property
or affairs of such Authorized Agent shall be taken under the
control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and
the Company shall not have appointed such Authorized Agent's
successor or successors, the Trustee shall ipso facto be deemed
to be such Authorized Agent for all purposes of this Indenture
until the Company appoints a successor or successors to such
Authorized Agent.
Section 9.15. Co-Trustee or Separate Trustee
(a) If at any time or times it shall be necessary or
prudent in order to conform to any law of any jurisdiction in
which property shall be held subject to the lien hereof, or the
Trustee shall be advised by counsel satisfactory to it, that it
is so necessary or prudent in the interest of Holders or the
Holders of a majority in principal amount of Outstanding
Securities shall in writing so request, the Trustee, the Company
and SERI shall execute and deliver all instruments and agreements
necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Trustee either to act as
co-trustee or co-trustees of all or any part of the Pledged
Property jointly with the Trustee originally named herein or any
successor or successors, or to act as separate trustee or
trustees of all or any such property. In the event SERI and the
Company shall have not joined in the execution of such
instruments and agreements within 10 days after the receipt of a
written request from the Trustee so to do, or in case an Event of
Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section without the
concurrence of SERI or the Company; and SERI and the Company each
hereby appoint the Trustee its agent and attorney to act for it
under the foregoing provisions of this Section in either of such
contingencies.
(b) Every additional trustee hereunder shall, to the
extent permitted by law, be appointed and act, and such
additional trustee and its successors shall act, subject to the
following provisions and conditions, namely:
(1) the Securities shall be authenticated and
delivered, and all powers duties, obligations and rights
conferred upon the Trustee in respect of the custody,
control and management of moneys, papers or securities,
shall be exercised, solely by the Trustee, unless otherwise
expressly permitted by the terms hereof;
(2) all rights, powers, duties and obligations
conferred or imposed upon the Trustee (other than those
referred to in the preceding clause (1)), shall be
conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees jointly,
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by
such additional trustee or trustees;
(3) no power given hereby to, or which it is provided
hereby may be exercised by, any such additional trustee or
trustees, shall be exercised hereunder by such additional
trustee or trustees, except jointly with, or with the
consent in writing of, the Trustee, anything herein
contained to the contrary notwithstanding;
(4) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee
hereunder; and
(5) SERI, the Company and the Trustee, at any time, by
an instrument in writing, executed by them jointly, may
remove any such additional trustee, and in that case, by an
instrument in writing executed by them jointly, may appoint
a successor or successors to such additional trustee or
trustees, as the case may be, anything herein contained to
the contrary notwithstanding; provided, however, that if
SERI, the Company and the Trustee remove any such
additional trustee which has been appointed at the request
of the Holders pursuant to clause (a) above, then such
parties shall appoint a successor or successors to such
additional trustee so removed unless the Holders of a
majority in principal amount of Outstanding Securities
shall have agreed in writing that no such successor or
successors need be appointed. In the event that SERI and
the Company shall not have joined in the execution of any
such instrument within 10 days after the receipt of a
written request from the Trustee to do so, the Trustee
shall have the power to remove any such additional trustee
and to appoint a successor additional trustee without the
concurrence of SERI and the Company, each hereby appointing
the Trustee its agent and attorney to act for it in such
connection in such contingency. In the event that the
Trustee alone shall have appointed an additional trustee or
trustees or co-trustee or co-trustees as above provided, it
may at any time, by an instrument in writing, remove any
such additional trustee or co-trustee, the successor to any
such trustee or co-trustee so removed, to be appointed by
SERI, the Company and the Trustee, or by the Trustee alone,
as hereinbefore in this Section provided.
ARTICLE TEN
Holders' Lists and Reports
by Trustee and SERI
Section 10.01. SERI to Furnish Trustee Names and Addresses of
Holders.
Semiannually, not later than March 31 and September 30 in
each year, commencing March 31, 1994 and at such other
times as the Trustee may request in writing, SERI 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 to preserve by it, all
to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however,
that so long as the Trustee is the sole Security Registrar,
or is otherwise furnished a copy of the Security Register,
no such list need be furnished by SERI.
Section 10.02. Reports by Trustee and SERI.
If required by Section 313 (a) of the Trust Indenture Act,
within thirty days after December 1 in each year commencing
December 1, 1994, the Trustee shall transmit to the Holders
and the Commission a report with respect to any events
described in Section 313(a) of the Trust Indenture Act, in
such manner and to the extent required by the Trust
Indenture Act. The Trustee shall transmit to the Holders
and the Commission, and SERI shall file with the Trustee
and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in
such manner, as shall be required by the Trust Indenture
Act.
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without Consent of
Holders
Without the consent of the Holders of any Securities, SERI,
when authorized by a Board Resolution, the Company, when
authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more
indentures supplemental hereto (a "Series Supplemental
Indenture" in the case of item (a) below), in form
satisfactory to the Trustee, for any of the following
purposes:
(a) to establish the form and terms of Securities of
any series of Securities permitted by Sections 2.01 and
2.03; or
(b) to evidence the succession of another corporation
to SERI and the assumption by any such successor of the
covenants of SERI herein contained, or to evidence the
succession of another corporation to the Company and the
assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(c) to evidence the succession of a new trustee
hereunder or a co-trustee or separate trustee pursuant to
Section 9.15 hereof;
(d) to add to the covenants of the Company or SERI,
for the benefit of the Holders of the Securities, or to
evidence the surrender of any right or power herein
conferred upon the Company or SERI; or
(e) to convey, transfer and assign to the Trustee, and
to subject to the Lien of this Indenture, with the same
force and effect as though included in the Granting Clauses
hereof, additional Pledged Lessor Notes or additional
properties or assets, and to correct or amplify the
description of any property at any time subject to the Lien
of this Indenture or to assure, convey and confirm unto the
Trustee any property subject or required to be subject to
the Lien of this Indenture; or
(f) to permit or facilitate the issuance of Securities
in uncertificated form; or
(g) to change or eliminate any provision of this
Indenture; provided, however, that if such change or
elimination shall adversely affect the interests of the
Holders of Securities of any series, such change or
elimination shall become effective with respect to such
series only when no Security of such series remains
Outstanding; or
(h) 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
provisions with respect to matters or questions arising
under this Indenture, provided such action shall not
adversely affect the interest of the Holders of the
Securities 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, SERI and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof; 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 or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at
such date, this Indenture shall be deemed to have
been amended to effect such changes or elimination,
and the Company, SERI and the Trustee may, without
the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
Section 11.02. Supplemental Indenture 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, SERI and the
Trustee, the Company and SERI, when authorized by a
Board Resolution, may, and the Trustee, subject to
Sections 11.03 and 11.04, shall, 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 Outstand
ing hereunder and if a proposed supplemental
indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than
all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that no such
supplemental indenture shall, without the consent of
the Holder of each Outstanding Security or coupon of
each series directly affected thereby:
(a) change the Stated Maturity of the principal of, or
any installment of interest on, or any Installment Payment
Date, or the dates or circumstances of payment of premium,
if any, on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium payable upon
the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or
the premium, if any, or the interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment of principal or interest on or after the
Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date) or such payment of premium,
if any, on or after the date such premium becomes due and
payable or change the dates or the amounts of payments to
be made through the operation of a Sinking Fund or through
installment payments of principal in respect of such
Securities, or
(b) permit the creation of any lien prior to or,
except with respect to additional series of Securities
issued in accordance with the terms of this Indenture, pari
passu with the Lien of this Indenture with respect to any
of the Pledged Property, or terminate the Lien of this
Indenture on any Pledged Property (except in each case as
permitted by, and pursuant to, Article Four) or deprive any
Holder of the security afforded by the Lien of this
Indenture, or
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of
Section 13.04 for quorum or voting, or
(d) modify any of the provisions of this Section or
Section 8.08, except to increase any percentage or
percentages referred to in this Section or to provide that
certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of
each Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
Upon receipt by the Trustee of Board Resolutions of the
Company and SERI and such other documentation as the Trustee may
reasonably require and upon the filing with the Trustee of
evidence of the Act of said Holders, the Trustee shall join in
the execution of such supplemental indenture or other instrument,
as the case may be, subject to the provisions of Sections 11.03
and 11.04.
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.
Section 11.03. Documents Affecting Immunity or Indemnity.
If in the opinion of the Company or the Trustee any
document required to be executed by it pursuant to the terms of
Section 11.02 affects any interest, right, duty, immunity or
indemnity in favor of the Company or the Trustee under this
Indenture or any of the Participation Agreements, the Company or
the Trustee, as the case may be, may in its discretion decline to
execute such document.
Section 11.04. Election 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 receive, and (subject to Section 9.01) 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.
Section 11.05. 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, subject to the provisions of this Article, be bound
thereby.
Section 11.06. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as then in
effect.
Section 11.07. Reference in Securities to Supplemental
Indentures
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by any Owner Trustee, the Company or SERI, bear
a notation in form approved by such Lessor, the Company, SERI and
the Trustee as to any matter provided for in such supplemental
indenture; and, in such case, suitable notation may be made upon
Outstanding Securities after proper presentation and demand. If
any Owner Trustee, the Company or SERI shall so determine, new
Securities so modified as to conform, in the opinion of such
Owner Trustee, the Company, SERI and the Trustee, 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.
ARTICLE TWELVE
Satisfaction and Discharge
Section 12.01. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall, prior to the Stated Maturity of principal
thereof, 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:
(a) if the Company shall have irrevocably deposited
with the Trustee, in trust, money in an amount which shall
be sufficient to pay when due the principal of and premium,
if any, and interest due and to become due on such
Securities or portions thereof on and prior to the Stated
Maturity of principal thereof or upon redemption or each
principal Installment Payment Date; or
(b) if the Pledged Lessor Notes, of the series
corresponding to the series of which such Security or
Securities are a part, shall be deemed to have been paid in
accordance with Section 2.4(c) of the Lease Indenture or
Lease Indentures under which such Pledged Lessor Notes were
issued;
provided, however, that, in case of redemption of Securities, 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:
(x) if any such deposit of money shall have been made
prior to the Stated Maturity of principal or Redemption
Date of such Securities, a Company Order stating that such
money shall be held by the Trustee, in trust, as provided
in Section 12.03, and
(y) if such Pledged Lessor Notes are so deemed to have
been paid, a copy of each certificate or opinion delivered
to the Lease Indenture Trustees pursuant to Section 2.4(c)
of the related Lease Indentures.
Upon satisfaction of the aforesaid conditions with respect
to any Security or Securities or portion thereof, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that such Security or Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof is deemed
to have been satisfied and discharged.
If payment at Stated Maturity of principal of less than all
of the Securities of any series is to be provided for in the
manner and with the effect provided in this Section, the Trustee
shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 6.03 for selection
for redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to have
been paid as provided in this Section do not mature and are not
to be redeemed within the sixty (60) day period commencing with
the date of the deposit with the Trustee of moneys, or the date
on which Pledged Lessor Notes are deemed to have been paid, as
the case may be, 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 Securities are deemed to have been paid and
the circumstances thereof.
Notwithstanding the satisfaction and discharge of any
Securities as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 2.07, 2.08,
2.09, 5.02, 5.03, 9.07 and 9.14 and this Article Twelve shall
survive.
Section 12.02. 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) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.09 and (B)
Securities deemed to have been paid in accordance
with Section 12.01) have been delivered to the
Trustee for cancellation; or
(ii) all Securities not theretofore delivered to
the Trustee for cancellation shall be deemed to have
been paid in accordance with Section 12.01;
(b) all other sums due and payable hereunder have been
paid; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
the satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, SERI and
the Trustee under Sections 2.07, 2.08, 2.09, 5.02, 5.03, 9.07 and
9.14 and this Article Twelve shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to or upon the order of the Company, 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 held by
the Trustee pursuant to Section 12.03 and the Pledged Lessor
Notes.
Section 12.03. Application of Trust Money.
The money deposited with the Trustee pursuant to Section
12.01 shall not 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 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 5.03;
provided, however, that, if not then needed for such purpose,
such money shall, to the extent practicable, be invested in
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America or certificates of an ownership interest in the
principal of or interest on any of such obligations, in any case
maturing at such times and in such amounts as shall be sufficient
to pay when due the principal of and premium, if any, and
interest due and to become due on such Securities or portions
thereof on and prior to the Stated Maturity, Installment Payment
Dates or Redemption Date thereof, and so long as there shall not
have occurred and be continuing an Event of Default, interest
earned from such investment shall be paid over to or upon the
order of the Company as received by the Trustee, less any fees
and expenses of the Trustee (including without limitation the
fees and expenses of its counsel) incurred in connection
therewith free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held by the Trustee in accordance with this Section on the
Stated Maturity, Installment Payment Dates or Redemption Date of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest then due on such
Securities shall be paid over to or upon the order of the Company
less any fees and expenses of the Trustee (including without
limitation the fees and expenses of its counsel) incurred in
connection therewith free and clear of any trust, lien or pledge
under this Indenture.
ARTICLE THIRTEEN
Meetings of Holders of Securities; Action without Meeting
Section 13.01. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 13.02. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series for any purpose
specified in Section 13.01, 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 and
SERI, 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
to the Company, SERI, each Owner Trustee, each Owner Participant
and the Holders, in the manner provided in Sections 1.05 and 1.06
and, in the case of each Owner Trustee or Owner Participant, in
the manner specified in Section 18 of the Participation
Agreement, not less than 21 nor more than 180 days prior to the
date fixed for the meeting .
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series by the Company, by SERI or by the Holders of 33% in
aggregate principal amount of all of such series, considered as
one class, for any purpose specified in Section 13.01, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of 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, SERI or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved
by the Company and SERI, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series shall be valid without notice if the Holders of
all Outstanding Securities of such series are present in person
or by proxy and if representatives of the Company, SERI and the
Trustee are present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding Securities of
such series, or by such of them as are not present at the meeting
in person or by proxy, and by the Company, SERI and the Trustee.
Section 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or
(b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company, SERI, any Owner Trustee
and any Owner Participant and their respective counsel.
Section 13.04. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for
a meeting of Holders of Securities of such series: provided,
however, that if any action is to be taken at such meeting which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class, shall
constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as 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 a
period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting.
Except as provided by Section 13.05(e), notice of the reconvening
of any adjourned meeting shall be given as provided in Section
13.02(a), except that such notice need be given only once not
less than five 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 which shall constitute a quorum.
Except as limited by Section 11.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series,
considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
with respect to which such meeting shall have been held, whether
or not present or represented at the meeting.
Section 13.05. 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 1.04 and the
appointment of any proxy shall be proved in the manner specified
in Section 1.04. 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
1.04 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, SERI or by Holders of
Securities as provided in Section 13.02(b), in which case the
Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting,
considered as one class.
(d) At any meeting each Holder of a Security 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 13.02 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series represented at the
meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
Section 13.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities or of
their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series with
respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports in quadruplicate of all votes cast at the meeting. A
record, a least in quadruplicate, of the proceedings of each
meeting of Holders of Securities 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 13.02 and, if applicable, Section 13.04.
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 each of the Company and SERI, 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 13.07. Action Without Meeting.
In lieu of a vote of Holders of Securities 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 of Securities by written
instruments as provided in Section 1.04.
ARTICLE FOURTEEN
Liability of the Company Solely Corporate; No Liability of SERI
Section 14.01. Liability of the Company Solely Corporate.
No recourse shall be had for the payment of the principal
of or premium, if any, or interest 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 of the Company, 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.
Section 14.02. No Liability of SERI.
In no event shall any provision of this Indenture or the
Securities constitute a guaranty or assumption by SERI of the
Securities or the indebtedness represented thereby (it being
understood that, in accordance with Section 3.9 of each Lease
Indenture or Section 7(b)(4)(H) of the Participation Agreement,
SERI may assume, or be deemed to have assumed, the Pledged Lessor
Notes).
_____________
This instrument may be executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
In Witness Whereof, the parties have caused this Indenture
to be duly executed as of the day and year first above written.
GG1B Funding Corporation
By
Title: Vice President
System Energy Resources, Inc.
By
Title: Vice President and Treasurer
Bankers Trust Company, not in its individual
capacity but solely as Trustee
By
Title: Vice President
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
______________, within my jurisdiction, the within named
____________, who acknowledged that he is a Vice President of
GG1B Funding Corporation, a Delaware corporation, and that for
and on behalf of the said corporation, and as its act and deed,
he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of Louisiana )
) ss.:
Parish of Orleans )
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this __th day of
______________, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President
and the Treasurer of System Energy Resources, Inc., an Arkansas
corporation, and that for and on behalf of the said corporation,
and as its act and deed, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_______________, within my jurisdiction, the within named
____________________, who acknowledged that he is a Vice
President of Bankers Trust Company, a New York banking
corporation, and that for and on behalf of the said corporation,
and as its act and deed,he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
State of New York )
) ss.:
County of New York )
Personally appeared before me, the undersigned authority in
and for the said county and state, on this __th day of
_____________, within my jurisdiction, the within named
, who acknowledged that he is a Vice President of Bankers Trust
Company, a New York banking corporation, Trustee under the above
and foregoing instrument, and that for and on behalf of the said
corporation, and as its act and deed in said capacity as Trustee
and its having been duly authorized so to do, he executed the
above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
/s/
Notary Public
My Commission Expires:
<PAGE>
EXHIBIT A
IDENTIFICATION OF CERTAIN DOCUMENTS
AND PARTIES THERETO
PART I
Lease _ Facility Lease No. 1, dated as of December 1, 1988,
as amended and supplemented, between SERI and the Owner Trustee,
as Lessor (a "Lessor").
Lease Indenture _ Trust Indenture, Deed of Trust, Mortgage,
Security Agreement and Assignment of Facility Lease No. 1, dated
as of December 1, 1988, as amended and supplemented ("Lease
Indenture No. 1"), between the Owner Trustee and Bankers Trust
Company and Stanley Burg, as trustees (together, a "Lease
Indenture Trustee").
Owner Trustee _ Meridian Trust Company and Stephen J. Kaba
(successor to Stephen M. Carta) as trustees under Trust Agreement
No. 1, dated as of December 1, 1988, with Resources Capital
Management Corporation (an "Owner Participant") as successor in
interest to Public Service Resources Corporation.
Participation Agreement _ Participation Agreement No. 1,
dated as of December 1, 1988, among the Owner Participant, the
Original Loan Participants named in Schedule 1-B thereto,
Meridian Trust Company and Stephen J. Kaba (successor to Stephen
M. Carta), individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and SERI.
PART II
Lease _ Facility Lease No. 2, dated as of December 1, 1988,
as amended and supplemented, between SERI and the Owner Trustee,
as Lessor (a "Lessor").
Lease Indenture _ Trust Indenture, Deed of Trust. Mortgage,
Security Agreement and Assignment of Facility Lease No. 2, dated
as of December 1, 1988, as amended and supplemented ("Lease
Indenture No. 2"), between the Owner Trustee and Bankers Trust
Company and Stanley Burg, as trustees (together, a "Lease
Indenture Trustee").
Owner Trustee _ Meridian Trust Company and Stephen J. Kaba
(successor to Stephen M. Carta) as trustees under Trust Agreement
No. 2, dated as of December 1, 1988, with Textron Financial
Corporation (an "Owner Participant") as successor in interest to
Lease Management Realty Corporation IV.
Participation Agreement _ Participation Agreement No. 2,
dated as of December 1, 1988, among the Owner Participant, the
Original Loan Participants named in Schedule l-B thereto,
Meridian Trust Company and Stephen J. Kaba (successor to Stephen
M. Carta), individually and as Owner Trustee, Bankers Trust
Company and Stanley Burg, individually and as Indenture Trustee,
and SERI.
EXHIBIT A-3(f)
SUPPLEMENTAL INDENTURE NO. 1
dated as of January 1, 1994
to
COLLATERAL TRUST INDENTURE
dated as of January 1, 1994
among
GG1B FUNDING CORPORATION,
SYSTEM ENERGY RESOURCES, INC.
and
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Trustee
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of
January 1, 1994, among GG1B Funding Corporation, a Delaware
corporation (the "Company"), SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation ("SERI"), and BANKERS TRUST COMPANY, a New
York banking corporation, not in its individual capacity but
solely as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Company and SERI have heretofore executed
and delivered to the Trustee a Collateral Trust Indenture, dated
as of January 1, 1994 (the "Original Indenture"), to provide for
the issue from time to time of the Company's debentures, notes or
other evidences of indebtedness to be issued in one or more
series (the "Securities"); and
WHEREAS, Sections 2.03 and 11.01 of the Original
Indenture provide, among other things, that the Company, SERI and
the Trustee may enter into indentures supplemental to the
Original Indenture for, among other things, the purpose of
establishing the form and terms of Securities of any series as
permitted by said Sections 2.03 and 11.01; and
WHEREAS, the Company and SERI (a) desire the issuance
by the Company of two series of Securities to be designated as
hereinafter provided and (b) have requested the Trustee to enter
into this Supplemental Indenture No. 1 for the purpose of
establishing the form and terms of the Securities of such series
(said Original Indenture, as supplemented by this Supplemental
Indenture No. 1, being hereinafter called the "Indenture"); and
WHEREAS, all action on the part of the Company and SERI
necessary to authorize the execution and delivery of this
Supplemental Indenture No. 1 and the issuance of the aforesaid
Securities has been duly taken; and
WHEREAS, all acts and things necessary to make the
Securities of the series herein created and established, when
executed by the Company and authenticated and delivered by the
Trustee as provided in the Original Indenture, the valid, binding
and legal obligations of the Company, and to constitute these
presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed, and the
execution of this Supplemental Indenture No. 1 and the creation
and issuance under the Indenture of such Securities have in all
respects been duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1
WITNESSETH:
That in order to establish the form and terms of and to
authorize the authentication and delivery of the Securities of
the series herein created and established, and in consideration
of the acceptance of such Securities by the holders thereof and
of the sum of one dollar duly paid to the Company by the Trustee
at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company and SERI each covenant and agree with
the Trustee, for the equal and proportionate benefit of the
respective holders from time to time of the Securities, as
follows:
ARTICLE ONE
THE BONDS
SECTION 1.01. Terms of the Bonds.
There are hereby created and established two separate
series of Securities designated, respectively, "Secured Lease
Obligation Bonds, 7.43% Series due 2011" (hereinafter sometimes
called the "Series 2011 Bonds") and "Secured Lease Obligation
Bonds, 8.20% Series due 2014" (hereinafter sometimes called the
"Series 2014 Bonds" ). The Series 2011 Bonds and the Series 2014
Bonds are hereinafter sometimes referred to, collectively, as the
"Bonds". The Bonds of each series shall be issued in the
aggregate principal amounts, shall bear interest at the rates per
annum and shall have the Stated Maturities of principal set forth
below:
Original Interest Final
Principal Amount Rate Maturity
Series 2011 $356,056,000 7.43% January 15, 2011
Bonds 79,046,000 8.20% January 15, 2014
Series 2014
Bonds
$435,102,000
The Series 2011 Bonds and the Series 2014 Bonds shall be
substantially in the form of Exhibit A hereto. The interest on
the Bonds of each series of Bonds shall be due and payable as and
from the most recent interest payment date to which interest has
been paid or duly provided for or, with respect to any Bond
issued prior to the first interest payment date, the date of
original issuance thereof, semiannually on January 15 and July 15
in each year (commencing July 15, 1994), until the principal
amount of the Bonds of such series is paid in full or duly
provided for. The interest so payable shall be paid to the
person in whose name a Bond is registered at the close of
business on the Regular Record Date for such interest, which, for
each applicable interest payment date, shall be the January 1 (in
respect of a January 15 interest payment date) or July 1 (in
respect of a July 15 interest payment date), as the case may be
(whether or not a Business Day), next preceding such interest
payment date.
SECTION 1.02. Installment Payments of Principal.
(a) Installment Payments. On each Installment Payment
Date set forth below, the Company shall pay an installment of
principal of each Bond of each series equal in amount to the
Installment Payment Percentage set forth below for such
Installment Payment Date multiplied by the Original Principal
Amount (as hereinafter defined) of such Bond. "Original
Principal Amount", when used with respect to the Bonds of either
series, means the principal amount identified as such on the face
of such Bond.
Installment Installment Payment Percentage
Payment Date
Series 2011 Series 2014
Bonds Bonds
July 15, 1995 1.4675456%
July 15, 1996 2.8658604%
July 15, 1997 3.0787941%
January 15, 1998 2.7515896%
July 15, 1998 0.6581805%
January 15, 1999 2.9639208%
July 15, 1999 0.7070832%
January 15, 2000 3.2327951%
July 15, 2000 0.6048021%
January 15, 2001 5.4591407%
January 15, 2002 7.9291912%
January 15, 2003 6.9943107%
January 15, 2004 3.5119740%
January 15, 2005 8.0857947%
January 15, 2006 6.4564431%
January 15, 2007 6.5538376%
January 15, 2008 7.4992341%
January 15, 2009 7.9875859%
January 15, 2010 11.7157832%
January 15, 2011 9.4761335%
January 15, 2012 10.5577562%
January 15, 2013 38.6912684%
January 15, 2014 50.7509754%
(b) Certain Adjustments to Installment Payments.
(i) The principal amount of Bonds of either series to be paid in
installments on the Installment Payment Dates for such series may
be adjusted (an "Installment Payment Adjustment") at the
discretion of the Company, such adjustment to be correlative, as
to amounts and dates, to any adjustment to the principal
amortization schedule of the Pledged Lessor Notes of the
corresponding series issued under any Lease Indenture pursuant to
Section 2(b) of Supplemental Indenture No. 2 to such Lease
Indenture; provided, however, that (A) no Installment Payment
Adjustment shall be made by the Company which will increase or
decrease the average life of the Bonds of any series (calculated
in accordance with generally accepted financial practice) from
the date of initial issuance by more than 6 months and (B) the
Company shall elect to make such adjustment upon (and only upon)
the direction of the Owner Trustee in accordance with
Section 2(e) of the Participation Agreement. If the Company
shall elect to make the foregoing adjustment, the Company shall
deliver to the Trustee and SERI at least 30 days prior to the
first Installment Payment Date proposed to be affected by such
adjustment, a Company Request (A) stating that the Company has
elected to make an Installment Payment Adjustment as contemplated
in this Section, (B) setting forth a revised Installment Payment
Percentage Schedule applicable to the Bonds of each series as to
which an Installment Payment Adjustment is to be made,
(C) attaching a copy of the revised principal schedule or
schedules for the Pledged Lessor Notes of the corresponding
series, and (D) attaching calculations showing that (x) the
average life of the Bonds of the affected series will not be
reduced or increased except as permitted by this subsection (b),
(y) the aggregate principal amount of the Pledged Lessor Notes
identified on Schedule 1 hereto equals the aggregate principal
amount of the Bonds and (z) the principal amortization schedules
of such Pledged Lessor Notes are such as to provide funds
sufficient to repay in full, as and when due, the principal of
the Bonds as and when scheduled to become due, whether upon
payment of applicable Installment Payment Amounts on Installment
Payment Dates or at Stated Maturity. The Trustee may conclusively
rely on such Company Request and shall have no duty with respect
to the calculations referred to in the foregoing clause (D),
other than to make them available for inspection by any Holder of
Bonds at the Corporate Trust Office upon reasonable notice. The
Trustee shall, at the expense of SERI, send to each Holder of
Bonds of the series in respect of which an Installment Payment
Adjustment has been made at least 20 days before the first
Installment Payment Date to be affected thereby, by first class
mail, a copy of a schedule of principal amounts of Bonds to be
repaid upon payment of applicable Installment Payment Amounts on
Installment Payment Dates after giving effect to such Installment
Payment Adjustment.
(ii) In the event that there shall have been any
partial redemption of the Bonds of either series (other than
pursuant to principal installment payments), each Installment
Payment Amount for each Bond of a series subsequent to such
redemption shall be reduced by (i) in the case of a partial
redemption pursuant to Section 1.05 hereof, an amount equal to
the amount obtained by multiplying such Installment Payment
Amount as in effect prior to such redemption by a fraction of
which the numerator shall be the aggregate principal amount of
Bonds of such series redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid
principal amount of Bonds of such series Outstanding immediately
prior to such redemption and (ii) in the case of a partial
redemption pursuant to Section 1.03 hereof, an amount such that
the aggregate of all principal installment payments to be made on
the Bonds of such series on the relevant Installment Payment Date
shall be equal to the amount of principal of the Pledged Lessor
Notes to be paid on such date under the remaining Lease
Indenture, any such reduction to be made on a prorata basis, as
nearly as practicable, among the Holders of the Bonds of such
series.
SECTION 1.03. Redemption upon Lease Termination.
If any Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the related Participation Agreement, and
all Lessor Notes issued under the related Lease Indenture are to
be prepaid, Bonds, equal in principal amount to the Pledged
Lessor Notes issued under such Lease Indenture shall be redeemed,
on the date on which such Lessor Notes are to be prepaid, at a
Redemption Price equal to the unpaid principal amount thereof
plus accrued interest to the Redemption Date, all subject,
however, except in the case of a termination pursuant to
Section 14 of such Lease, to the right of SERI to assume such
Lessor Notes in which event there shall be no redemption of Bonds
as a consequence of such termination.
SECTION 1.04. Sinking Fund Redemption.
There shall be no Sinking Fund for the retirement of
the Bonds of either series.
SECTION 1.05. Other Redemption.
Except as provided in Sections 1.02, 1.03 or 1.04, the
Bonds shall not be subject to prepayment or redemption prior to
January 15, 2004. On and after January 15, 2004, the Bonds of
each series shall be subject to redemption, at the option of the
Company, in whole at any time or in part from time to time, at
the Redemption Prices (expressed as a percentage of the unpaid
principal amount) set forth below with respect to each series
plus accrued interest to the Redemption Date:
SERIES 2011 BONDS
If Redeemed in the
12 Month Period Redemption
Beginning January 15 Price
2004 102.477%
2005 101.981
2006 101.486
2007 100.991
2008 100.495
and thereafter at 100% of the unpaid principal amount thereof
plus accrued interest to the Redemption Date.
SERIES 2014 BONDS
If Redeemed in the
12 Month Period Redemption
Beginning January 15 Price
2004 104.100%
2005 103.690
2006 103.280
2007 102.870
2008 102.460
2009 102.050
2010 101.640
2011 101.230
2012 100.820
2013 100.410
Section 1.06. Selection by Trustee of Bonds to be
Redeemed.
Subject to the provisions of subsection (a) and (b) of
Section 6.03 of the Original Indenture, if fewer than all of the
Bonds of either series are to be redeemed, the particular Bonds
of such series to be redeemed shall be selected not more than 45
days prior to the Redemption Date by the Trustee by prorating, as
nearly as practicable, the principal amount of such Bonds to be
redeemed among the Holders of such Bonds.
ARTICLE TWO
PLEDGE OF LESSOR NOTES
Section 2.01. Pledge of Lessor Notes.
To secure the payment of the principal of and premium,
if any, and interest on all the Securities from time to time
Outstanding under the Indenture, and the performance of the
covenants therein and herein contained, the Company by these
presents does grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, pledge, confirm to the Trustee
and create a security interest in favor of the Trustee, for the
benefit of the Holders, in the Lessor Notes identified on
Schedule 1 hereto (herein referred to as the "Pledged Lessor
Notes"), to be held by the Trustee, in trust, for the uses and
purposes, and subject to the covenants and conditions, set forth
in the Original Indenture.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. Execution as Supplemental Indenture.
This Supplemental Indenture No. 1 is executed and shall
be construed as an indenture supplemental to the Original
Indenture and, as provided in the Original Indenture, this
Supplemental Indenture No. 1 forms a part thereof.
SECTION 3.02. Definitions.
Capitalized terms used which are not defined herein
shall have the meanings ascribed thereto in the Original
Indenture.
SECTION 3.03. Counterpart Execution.
This Supplemental Indenture No. 1 may be executed in
any number of counterparts and by each of the parties hereto or
thereto on separate counterparts, all such counterparts together
constituting but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company, SERI and the Trustee
have caused this Supplemental Indenture No. 1 to be duly executed
as of the day and year first above written.
GG1B FUNDING CORPORATION
By
Title: Vice President
SYSTEM ENERGY RESOURCES, INC.
By
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely
as Trustee
By
Title: Vice President
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of ____________, within my jurisdiction, the within named
_____________, who acknowledged that he is a Vice President of
GG1B Funding Corporation, a Delaware corporation, and that for
and on behalf of the said corporation, and as its act and deed,
he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
<PAGE>
STATE OF LOUISIANA )
)ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the said parish and state, on this ____ day
of _____________, within my jurisdiction, the within named
___________, who acknowledged that he is a ______________________
_________ of SYSTEM ENERGY RESOURCES, INC., an Arkansas
corporation, and that for and on behalf of the said corporation,
and as its act and deed, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
Notary Public
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of ________________, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, and that
for and on behalf of the said corporation, and as its act and
deed, he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said county and state, on this ____ day
of _______________, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, Trustee
under the above and foregoing instrument, and that for and on
behalf of the said corporation, and as its act and deed in said
capacity as Trustee and its having been duly authorized so to do,
he executed the above and foregoing instrument, after first
having been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
<PAGE>
SCHEDULE 1
PLEDGED LESSOR NOTES
Lessor Notes Issued Under Lease Indenture No. 1
Principal Interest
Series Number Amount Rate Maturity
2011 R-1A $287,387,000 7.43% January 15, 2011
2014 R-1B 60,662,000 8.20 January 15, 2014
Lessor Notes Issued Under Lease Indenture No. 2
Principal Interest
Series Number Amount Rate Maturity
2011 R-2A $68,669,000 7.43% January 15, 2011
2013 R-2B 18,424,000 8.20 January 15, 2013
<PAGE>
EXHIBIT A
FORM OF BOND
[FRONT]
NUMBER
R-
________________________
SECURED LEASE OBLIGATION BOND,
% SERIES DUE
INTEREST RATE MATURITY DATE CUSIP
%
REGISTERED HOLDER:
ORIGINAL PRINCIPAL AMOUNT:DOLLARS
GG1B Funding Corporation, a Delaware corporation
(hereinafter called the "Company", which term includes any
successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to the
Registered Holder named above, or registered assigns, the unpaid
portion of the Original Principal Amount (stated above) in
installments on each Installment Payment Date as set forth on the
reverse hereof with the final installment due and payable on the
Maturity Date (stated above) and to pay interest (computed on the
basis of a 360-day year consisting of twelve 30-day months) on
the principal amount remaining unpaid from time to time from the
most recent interest payment date to which interest has been paid
or duly provided for or, if this Bond is dated prior to July 15,
1994, the date of the original issuance of Bonds of this series,
semiannually on January 15 and July 15 in each year, commencing
July 15, 1994, at the Interest Rate (stated above) per annum,
until the principal hereof is paid in full or made available for
payment. The interest or Installment Payment Amount so payable
shall, as provided in such Indenture, be paid to the person in
whose name this Bond (or one or more Predecessor Securities, as
defined in such Indenture) is registered at the close of business
on the Regular Record Date (all capitalized terms used herein and
not defined herein shall have the meanings ascribed to them in
the Indenture referred to on the reverse hereof) for such
interest or installment of principal, which shall be the
January 1 (with respect to a January 15 interest payment date) or
July 1 (with respect to a July 15 interest payment date), as the
case may be (whether or not a Business Day), next preceding such
interest payment date or Installment Payment Date. Any such
interest or Installment Payment Amount not so punctually paid or
duly provided for shall forthwith cease to be payable to the
Registered Holder on such Regular Record Date, and may be paid to
the person in whose name this Bond (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest or
defaulted installment to be fixed by the Trustee (as defined on
the reverse hereof), notice of which shall be given to the
Holders of the Bonds not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Bonds may be listed, and upon such notice
as may be required by such exchange, all as more fully provided
in such Indenture. Payment of the principal of, and premium, if
any, and interest on this Bond shall be made upon presentation
and surrender hereof at the Corporate Trust Office of the Trustee
in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of debts, except
that payment of interest and Installment Payment Amounts (other
than that payable on the Stated Maturity hereof) shall be made,
without presentation or surrender hereof, by check mailed to the
address of the Holder entitled thereto as such address shall
appear in the Security Register.
As provided in the Indenture, in any case where any
Redemption Date, Installment Payment Date or the Stated Maturity
of principal of or any installment of interest on any bond, or
any date on which any defaulted interest or principal is proposed
to be paid, shall not be a Business Day, then (notwithstanding
any other provision of the Indenture or this Bond) payment of
interest and/or principal and premium, if any, shall be due and
payable on the next succeeding Business Day with the same force
and effect as if made on or at such nominal Redemption Date,
Stated Maturity, Installment Payment Date or date on which the
defaulted interest or principal is proposed to be paid and no
interest shall accrue on the amount so payable for the period
from and after such Redemption Date, Stated Maturity, Installment
Payment Date or date for the payment of defaulted interest or
principal, as the case may be.
Reference is hereby made to the further provisions of
this Bond set forth on the reverse hereof which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee by manual signature, this Bond shall
not be entitled to any benefit under such Indenture, or be valid
or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Bond to
be duly executed under its corporate seal.
Dated:
GG1B FUNDING CORPORATION
By
Vice President
Attest
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture
, as Trustee
By
Authorized Officer
Dated __________________________
<PAGE>
[BACK]
GG1B FUNDING CORPORATION
SECURED LEASE OBLIGATION BOND,
% SERIES DUE
This Bond is one of an authorized issue of Securities
of the Company known as its "Secured Lease Obligation Bonds,
% Series due " (the "Bonds"). The Bonds are issued under and
secured by a Collateral Trust Indenture, dated as of January 1,
1994 (the "Original Indenture"), among the Company, System Energy
Resources, Inc., an Arkansas corporation ("System Energy"), and
Bankers Trust Company, not in its individual capacity but solely
as trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), as supplemented by
Supplemental Indenture No. 1, dated as of January 1, 1994, among
such parties (together, and as thereafter amended in accordance
with its terms, the "Indenture"). The Indenture permits the
issuance of additional series of Securities for the purposes and
as provided therein. All Bonds are secured equally and ratably
with one another and with any other Securities of the Company
issued under the Indenture, as amended or supplemented.
Reference is hereby made to the Indenture and any supplements or
amendments thereto for a description of the nature and extent of
the Securities issued thereunder, the property assigned, pledged
and transferred thereunder and the respective rights of the
Holders of the Bonds and of the Trustee and the Company in
respect of such security and the terms upon which the Bonds are
and are to be authenticated and delivered. The Holder of this
Bond, by its acceptance hereof, is deemed to have consented and
agreed to all the terms and provisions of the Indenture.
The unpaid principal of and premium, if any, and
interest on this Bond are payable from and secured by the assets
subject to the lien of the Indenture and the income and proceeds
received by the Trustee therefrom and all payments of principal,
premium, if any, and interest shall be made in accordance with
the terms of the Indenture.
The Indenture provides that certain promissory notes
("Pledged Lessor Notes") are subject to the lien of the Indenture
and that additional Pledged Lessor Notes, as and when issued, can
be made subject to the lien of the Indenture pursuant to
Indenture supplements. The Pledged Lessor Notes subject to the
lien of the Indenture on the date of the initial issuance of
Bonds were issued by Meridian Trust Company, as owner trustee
under each of Trust Agreement No. 1 and Trust Agreement No. 2
(each, a "Trust Agreement" and, together, the "Trust
Agreements"), each such Trust Agreement with the institutional
investor party thereto (each such institutional investor, an
"Owner Participant"). Such Pledged Lessor Notes were issued
under either Trust Indenture, Deed of Trust, Mortgage, Security
Agreement and Assignment of Facility Lease No. 1 or Trust
Indenture, Deed of Trust, Mortgage, Security Agreement and
Assignment of Facility Lease No. 2, each such indenture between
an owner trustee, as owner trustee and lessor (a "Lessor") and
Bankers Trust Company and Stanley Burg, not in their individual
capacities but solely as Corporate Indenture Trustee and
Individual Indenture Trustee, respectively, (each of such
indentures, as it was executed and delivered and as thereafter
amended in accordance with its terms, being herein called a
"Lease Indenture" and each trustee thereunder being herein called
a "Lease Indenture Trustee"). Reference is made to each Lease
Indenture for a description of the nature and extent of property
assigned, pledged, transferred and mortgaged thereunder and the
rights of the holders of Pledged Lessor Notes. Except as
expressly provided in a Lease Indenture, all payments of
principal, premium, if any, and interest to be made on a Pledged
Lessor Note issued under such Lease Indenture will be made only
from the assets subject to the lien of such Lease Indenture or
the income and proceeds received by the Lease Indenture Trustee
therefrom, including, in the case of each Lease Indenture, the
rights of the Lessor which is a party thereto to receive basic
rentals and certain other payments under a Facility Lease with
System Energy relating to an undivided interest in certain assets
constituting part of the Grand Gulf Nuclear Station Unit No. 1
(each of such Facility Leases, as it was executed and delivered
and as thereafter amended in accordance with its terms being
herein called a "Lease"), which basic rentals and other payments
will be at least sufficient to provide for the scheduled payments
of the principal of and interest on each Pledged Lessor Note
issued under such Lease Indenture. Each Holder of this Bond, by
its acceptance hereof, is deemed to have agreed (x) that it will
look solely to the assets subject to the lien of the Indenture or
the income or proceeds received by the Trustee therefrom, to the
extent available for distribution to the Holder hereof as
provided in the Indenture, and (y) that none of any Owner
Participant, any Lessor, any Lease Indenture Trustee or the
Trustee is liable to the Holder hereof or, in the case of any
Owner Participant, Lessor or Lease Indenture Trustee, to the
Trustee, for any amounts payable on this Bond, or, except as
provided in the Indenture with respect to the Trustee, for any
liability under the Indenture.
With certain exceptions as therein provided, the
supplementation of the Indenture for the purpose of adding any
provisions thereto, or changing in any manner or eliminating any
of the provisions thereof, will require the consent of the
Holders of not less than a majority in aggregate unpaid principal
amount of all Securities of all series at the time Outstanding
under the Indenture considered as one class; provided, however,
that if there shall be Securities of more than one series
Outstanding under the Indenture 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
unpaid principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required. The Indenture also contains provisions permitting the
Holders of not less than a majority in unpaid principal amount of
the Securities at the time Outstanding, on behalf of the Holders
of all of the Securities, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver
by the Holder of this Bond shall be conclusive and binding upon
such Holder and upon all future Holders of this Bond and of any
Bond issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Bond.
On each Installment Payment Date set forth below, the
Company shall pay an installment of principal of this Bond equal
(subject to adjustment as hereinafter described) in amount to the
Installment Payment Percentage set forth below for such
Installment Payment Date multiplied by the Original Principal
Amount stated on the face of this Bond.
Installment Installment Outstanding
Payment Date Payment Percentage Balance Factor
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
July 15,
January 15,
The "Outstanding Balance Factor" as used in the foregoing table
is for descriptive purposes only, and, unless there has been a
partial redemption or a default or another installment payment
adjustment, when multiplied by the Original Principal Amount of
this Bond, represents the remaining unpaid principal amount of
this Bond as of the Installment Payment Date indicated after
payment of the principal installment on such date.
As provided in the Indenture, the amount of installment
payments of principal for the Bonds may be adjusted, subject to
certain restrictions, at the discretion of the Company in
connection with certain recalculations of basic rent pursuant to
either of the Leases; provided, however, that no installment
payment adjustment shall be made by the Company which will
increase or decrease the average life of the Bonds of any series
(calculated in accordance with generally accepted financial
practice) from the date of initial issuance by more than 6
months.
In the event of any partial redemption of Bonds (other
than pursuant to the aforementioned principal installment
payments) the amount of each installment payment of principal to
be paid thereafter pursuant to the installment payment schedule
indicated above shall be adjusted in accordance with the
Indenture.
Notwithstanding anything to the contrary set forth
herein or in the Indenture, the unpaid principal amount hereof
recorded on the Security Register maintained by the Security
Registrar shall be controlling as to the remaining unpaid
principal amount hereof.
If any Lease is to be terminated pursuant to
Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the related Participation Agreement, and
all Lessor Notes issued under the related Lease Indenture are to
be prepaid, Bonds, equal in principal amount to the Pledged
Lessor Notes issued under such Lease Indenture, shall be
redeemed, on the date on which such Lessor Notes are to be
prepaid, at a redemption price equal to the unpaid principal
amount thereof plus accrued interest to the Redemption Date, all
subject, however, except in the case of a termination pursuant to
Section 14 of such Lease, to the right of System Energy to assume
such Lessor Notes in which event there shall be no redemption of
Bonds as a consequence of such termination.
Except as described above, the Bonds shall not be
subject to prepayment or redemption prior to . On
and after , the Bonds shall be subject to
redemption, at the option of the Company, in whole at any time or
in part from time to time, at the Redemption Prices (expressed as
a percentage of the unpaid principal amount) set forth below plus
accrued interest to the redemption date:
If Redeemed in the
Twelve Month Period
Beginning January 15 Redemption Price
and thereafter at 100% of the unpaid principal amount thereof
plus accrued interest to the redemption date.
In the event that any of the Bonds are called for
redemption, notice shall be given to the Holders in accordance
with Section 6.04 of the Original Indenture not less than 20 nor
more than 60 days prior to the redemption date.
With respect to any notice of redemption of Bonds (and
not with respect to installment payments of principal payable on
Installment Payment Dates) unless, upon the giving of such
notice, such Bonds shall be deemed to have been paid in
accordance with the provisions of the Indenture, such notice
shall state that such redemption shall be conditional upon the
receipt by the Trustee, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest on such Bonds 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.
Bonds (or portions thereof as aforesaid) for which
redemption and payment provision is made in accordance with the
Indenture shall thereupon cease to be entitled to the lien of the
Indenture and shall cease to bear interest from and after the
date fixed for redemption.
If an Event of Default shall occur, the unpaid
principal of this Bond may become or be declared due and payable
in the manner and with the effect provided in the Indenture.
This Bond is transferable by the Holder hereof in
person or by attorney authorized in writing, at the Corporate
Trust Office of the Security Registrar (or if such office is not
in the Borough of Manhattan, The City of New York, at either such
office or an office to be maintained in such Borough). Upon
surrender for registration of transfer of this Bond, the Company
shall execute, and the Trustee (or any Authenticating Agent)
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Bonds of the same
series, of authorized denominations and of like tenor and
aggregate principal amount.
The Bonds are issuable only as registered Bonds without
coupons in denominations of $1,000 and/or any integral multiple
thereof. As provided in and subject to the provisions of the
Indenture, Bonds may be exchanged for other Bonds of the same
series, of authorized denominations, and of like tenor and
aggregate principal amount, upon surrender at any office
maintained for such purpose pursuant to the Indenture.
No service charge will be made to any Holder of Bonds
for any such transfer or exchange but the Security Registrar may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The person in whose name this Bond is registered shall
be deemed to be the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes whether or
not this Bond be overdue, regardless of any notice to anyone to
the contrary.
As provided in the Indenture, the Indenture and the
Bonds shall be construed in accordance with and governed by the
laws of the State of New York.
Exhibit B-3(d)
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 2 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 1, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 2 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 2 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
LEASE SUPPLEMENT NO. 2
dated as of January 1, 1994
to
FACILITY LEASE NO. 1
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities,
but solely as Owner Trustee under
Trust Agreement No. 1
dated as of December 1, 1988,
with Resources Capital Management Corporation,
as successor in interest to
Public Service Resources Corporation,
Lessor
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Original Facility Lease Recorded on December 28,
1988 at Deed Book Volume 12V,
Page 408 Claiborne County,
Mississippi, Chancery Clerk's Office
<PAGE>
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE
AS SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 2 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 1, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 2 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 2 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS THE ORIGINAL COUNTERPART. RECEIPT OF THIS
ORIGINAL COUNTERPART IS HEREBY ACKNOWLEDGED BY BANKERS TRUST
COMPANY, AS CORPORATE INDENTURE TRUSTEE.
By:
Authorized Officer
LEASE SUPPLEMENT NO. 2
dated as of January 1, 1994
to
FACILITY LEASE NO. 1
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities, but solely as
Owner Trustee under Trust Agreement No. 1,
dated as of December 1, 1988,
with Resources Capital Management Corporation,
as successor in interest to
Public Service Resources Corporation,
Lessor
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Original Facility Lease Recorded on December 28,
1988 at Deed Book Volume 12V,
Page 408; Claiborne County,
Mississippi, Chancery Clerk's Office
<PAGE>
LEASE SUPPLEMENT NO. 2, dated as of January 1, 1994
("Lease Supplement No. 2"), to FACILITY LEASE NO. 1, dated as of
December 1, 1988, as supplemented (the "Facility Lease"), between
MERIDIAN TRUST COMPANY, a Pennsylvania trust company, not in its
individual capacity, but solely as Corporate Owner Trustee and
STEPHEN J. KABA not in his individual capacity, but solely as
successor Individual Owner Trustee (together, the "Lessor"),
under the Trust Agreement (such term, and all other capitalized
terms used herein without definition, being defined as provided
in Section 1 below), and SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest; and
WHEREAS, the Lessee, the Lessor, the Owner Participant,
the Funding Corporation and the Indenture Trustee have entered
into Refunding Agreement No. 1-A, dated as of January 1, 1994,
providing for the issuance by the Owner Trustee of a new series
of Fixed Rate Notes (the "Refunding Notes") to refund the
Outstanding Notes; and
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into Supplemental Indenture No. 2, dated as of
January 1, 1994, to the Indenture creating the Refunding Notes
for such purpose and establishing the terms, conditions and
designations thereof; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return in the event, among
other things, of the issuance of the Refunding Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals shall have the
meanings assigned to such terms in Appendix A to the Facility
Lease. Appendix A to the Lease is hereby amended such that
Funding Corporation, as defined therein shall mean GG1B Funding
Corporation.
SECTION 2. Amendments; Schedules.
(a) Section 3(h) of the Lease is hereby amended by
deleting such section in its entirety and substituting therefore
the following: "(h) Intentionally omitted."
(b) As of the date first written above and until and
unless further amended, Schedules 1 through 5 of the Facility
Lease are hereby amended as follows:
(i) Schedule 1 to the Facility Lease entitled
"Basic Rent Percentages" is deleted in its entirety and is hereby
replaced with Schedule 1 hereto.
(ii) Schedule 2 to the Facility Lease entitled
"Schedule of Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 2 hereto.
(iii) Schedule 3 to the Facility Lease entitled
"Schedule of Special Casualty Values" is deleted in its entirety
and is hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 to the Facility Lease entitled
"Schedule of Net Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
(v) Schedule 5 to the Facility Lease entitled
"Schedule of Net Special Casualty Values" is deleted in its
entirety and is hereby replaced with Schedule 5 hereto.
(c) Schedule PS to the Facility Lease is attached
hereto.
(d) Section 3(i) of the Facility Lease is amended by
inserting the following paragraph after Section 3(i)(D):
Nothing in this Section 3(i) is intended
to or shall create any right or entitlement
of the Lessee or any Person other than the
Owner Participant, contingent or otherwise,
in or to the proceeds of a drawing of the
Equity Portion of Rent under the Letter of
Credit.
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Lease Supplement No.
2 may be executed in any number of counterparts and by each of
the parties hereto or thereto on separate counterparts, all such
counterparts together constituting but one and the same
instrument.
(b) Execution as Lease Supplement. This Lease
Supplement No. 2 is executed and shall be construed as a
supplement and amendment to the Facility Lease and shall form a
part thereof. On and from the delivery of this Lease Supplement
No. 2, any reference in any Transaction Document to the Facility
Lease shall be deemed to refer to the Facility Lease as
supplemented and amended by this Lease Supplement No. 2.
(c) Original Counterpart. The single executed original
of this Lease Supplement No. 2 marked "THIS COUNTERPART IS THE
ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this Lease
Supplement No. 2. To the extent that the Facility Lease, as
supplemented by this Lease Supplement No. 2, constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as
in effect in any applicable jurisdiction, no security interest in
the Facility Lease, as so supplemented, may be created or
continued through the transfer or possession of any counterparts
of the Facility Lease and supplements thereto other than the
"Originals" of any thereof.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Lease Supplement No. 2 to be duly executed by an
officer thereunto duly authorized, as of the date set forth
above.
MERIDIAN TRUST COMPANY,
not in its individual
capacity but solely as
Corporate Owner Trustee
By:
Name: Stephen J. Kaba
Title: Vice President
Stephen J. Kaba, not in
his individual capacity
but solely as successor
Individual Owner Trustee
<PAGE>
ATTEST: SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _________, 19__, within my jurisdiction, the within named
STEPHEN J. KABA, who acknowledged that he is a Vice President of
MERIDIAN TRUST COMPANY, a Pennsylvania trust company, Corporate
Owner Trustee under that certain Trust Agreement No. 1, dated as
of December 1, 1988 among Public Service Resources Corporation,
as Original Owner Participant, MERIDIAN TRUST COMPANY, as
Corporate Owner Trustee, and STEPHEN J. KABA, as successor
Individual Owner Trustee to the original Individual Owner
Trustee, Stephen M. Carta, and that for and on behalf of the said
trust company, and as its act and deed in said capacity as
Corporate Owner Trustee and its having been duly authorized so to
do, he executed the above and foregoing instrument after first
having been duly authorized by said trust company so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _________, 19__, within my jurisdiction, the within named
STEPHEN J. KABA, who acknowledged that he is the successor
Individual Owner Trustee under that certain Trust Agreement No.
1, dated as of December 1, 1988 among Public Service Resources
Corporation, as Original Owner Participant, MERIDIAN TRUST
COMPANY, as Corporate Owner Trustee, and STEPHEN J. KABA, as
successor Individual Owner Trustee to the original Individual
Owner Trustee, Stephen M. Carta, and that in his capacity as
Individual Owner Trustee he executed the above and foregoing
instrument after first having been duly authorized to do so.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the said Parish and State, on this ____ day
of ____________, 19__, within my jurisdiction, the within named
_____ ______, who acknowledged that he is a
___________________________ of SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation, and that for and on behalf of the said
corporation, and as its act and deed he executed the above and
foregoing instrument, after first having been duly authorized by
said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
SCHEDULE 1
TO LEASE
SUPPLEMENT
NO. 2
PSRC
BASIC RENT PERCENTAGES
BASIC RENT ADVANCE ARREARS PERCENTAGE OF
PAYMENT DATE FACILITY COST
1 18 1994 0.082194228% 0.000000000% 0.082194228%
7 15 1994 0.000000000% 3.309552295% 3.309552295%
1 15 1995 4.144728223% 0.000000000% 4.144728223%
7 15 1995 0.000000000% 4.397375763% 4.397375763%
1 15 1996 3.249361315% 0.000000000% 3.249361315%
7 15 1996 0.000000000% 5.292742670% 5.292742670%
1 15 1997 3.173449687% 0.000000000% 3.173449687%
7 15 1997 0.000000000% 5.368654295% 5.368654295%
1 15 1998 5.541197790% 0.000000000% 5.541197790%
7 15 1998 0.000000000% 3.000906195% 3.000906195%
1 15 1999 5.639210803% 0.000000000% 5.639210803%
7 15 1999 0.000000000% 2.902893183% 2.902893183%
1 15 2000 5.744787155% 0.000000000% 5.744787155%
7 15 2000 0.000000000% 2.797316830% 2.797316830%
1 15 2001 6.910158080% 0.000000000% 6.910158080%
7 15 2001 0.000000000% 2.644524778% 2.644524778%
1 15 2002 8.898447278% 0.000000000% 8.898447278%
7 15 2002 2.412191558% 0.000000000% 2.412191558%
1 15 2003 7.524235490% 0.000000318% 7.524235808%
7 15 2003 2.222279113% 0.000000000% 2.222279113%
1 15 2004 3.900953613% 0.000000000% 3.900953613%
7 15 2004 0.000000000% 2.509240715% 2.509240715%
1 15 2005 8.503052633% 0.000000000% 8.503052633%
7 15 2005 0.000001002% 1.937296680% 1.937297683%
1 15 2006 8.665912498% 0.000000000% 8.665912498%
7 15 2006 0.000001385% 1.774435815% 1.774437200%
1 15 2007 8.836690453% 0.000000000% 8.836690453%
7 15 2007 0.000001453% 1.603657475% 1.603658928%
1 15 2008 9.015847195% 0.000000000% 9.015847195%
7 15 2008 0.000000000% 1.424500668% 1.424500668%
1 15 2009 9.205870323% 0.000000000% 9.205870323%
7 15 2009 0.000000000% 1.234478992% 1.234478992%
1 15 2010 9.513433473% 0.000000000% 9.513433473%
7 15 2010 0.000000000% 0.926915843% 0.926915843%
1 15 2011 9.818973815% 0.000000000% 9.818973815%
7 15 2011 0.000000000% 0.621375500% 0.621375500%
1 15 2012 9.820336493% 0.000000000% 9.820336493%
7 15 2012 0.001362678% 0.620012823% 0.621375500%
1 15 2013 9.358348995% 0.000000000% 9.358348995%
7 15 2013 0.000000000% 1.080637643% 1.080637643%
1 15 2014 10.440349315% 0.000000000% 10.440349315%
7 15 2014 0.000000000% 0.000000000% 0.000000000%
1 15 2015 6.780254070% 0.000000000% 6.780254070%
7 15 2015 0.000000000% 3.660095245% 3.660095245%
<PAGE>
SCHEDULE 2
TO LEASE
SUPPLEMENT
NO. 2
PSRC
SCHEDULE OF CASUALTY VALUES
If the event giving rise to an obligation to pay Casualty
Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences
shall be earlier or later than the date assumed in
originally calculating the applicable Casualty Value, such
value shall be appropriately adjusted, based upon the date
as of which the Owner Participant incurred such tax
consequences but otherwise on the Assumptions used to
calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 121.740886498%
1 15 1995 122.603960480%
7 15 1995 122.559865613%
1 15 1996 122.203504752%
7 15 1996 122.966636385%
1 15 1997 121.530946473%
7 15 1997 122.141565230%
1 15 1998 120.364213285%
7 15 1998 118.255680835%
1 15 1999 118.657977980%
7 15 1999 116.301414365%
1 15 2000 116.651840285%
7 15 2000 114.032029780%
1 15 2001 114.330693388%
7 15 2001 110.345538732%
1 15 2002 110.614921640%
7 15 2002 104.405429130%
1 15 2003 104.693735260%
7 15 2003 99.692109025%
1 15 2004 100.004965320%
7 15 2004 98.598188020%
1 15 2005 98.598842040%
7 15 2005 92.414074647%
1 15 2006 92.901207892%
7 15 2006 86.422239780%
1 15 2007 86.946845920%
7 15 2007 80.160450538%
1 15 2008 80.725396180%
7 15 2008 73.617668700%
1 15 2009 74.226161620%
7 15 2009 66.782452142%
1 15 2010 67.442195025%
7 15 2010 59.639317285%
1 15 2011 60.575540995%
7 15 2011 52.408940953%
1 15 2012 53.612683880%
7 15 2012 45.099084310%
1 15 2013 45.940629043%
7 15 2013 37.713783628%
1 15 2014 37.878326728%
7 15 2014 28.423317000%
1 15 2015 29.595493762%
7 15 2015 23.660095258%
<PAGE>
PSRC
ADDENDUM TO SCHEDULE 2 OF LEASE
The foregoing Casualty Values are
comprised of the following two
components:
7 15 1994 118.431334205% 3.309552295%
1 15 1995 122.603960480% 0.000000000%
7 15 1995 118.162489850% 4.397375763%
1 15 1996 122.203504752% 0.000000000%
7 15 1996 117.673893715% 5.292742670%
1 15 1997 121.530946473% 0.000000000%
7 15 1997 116.772910935% 5.368654295%
1 15 1998 120.364213285% 0.000000000%
7 15 1998 115.254774640% 3.000906195%
1 15 1999 118.657977980% 0.000000000%
7 15 1999 113.398521183% 2.902893183%
1 15 2000 116.651840285% 0.000000000%
7 15 2000 111.234712950% 2.797316830%
1 15 2001 114.330693388% 0.000000000%
7 15 2001 107.701013955% 2.644524778%
1 15 2002 110.614921640% 0.000000000%
7 15 2002 104.405429130% 0.000000000%
1 15 2003 104.693734943% 0.000000318%
7 15 2003 99.692109025% 0.000000000%
1 15 2004 100.004965320% 0.000000000%
7 15 2004 96.088947305% 2.509240715%
1 15 2005 98.598842040% 0.000000000%
7 15 2005 90.476777965% 1.937296680%
1 15 2006 92.901207892% 0.000000000%
7 15 2006 84.647803965% 1.774435815%
1 15 2007 86.946845920% 0.000000000%
7 15 2007 78.556793063% 1.603657475%
1 15 2008 80.725396180% 0.000000000%
7 15 2008 72.193168033% 1.424500668%
1 15 2009 74.226161620% 0.000000000%
7 15 2009 65.547973150% 1.234478992%
1 15 2010 67.442195025% 0.000000000%
7 15 2010 58.712401443% 0.926915843%
1 15 2011 60.575540995% 0.000000000%
7 15 2011 51.787565452% 0.621375500%
1 15 2012 53.612683880% 0.000000000%
7 15 2012 44.479071488% 0.620012823%
1 15 2013 45.940629043% 0.000000000%
7 15 2013 36.633145985% 1.080637643%
1 15 2014 37.878326728% 0.000000000%
7 15 2014 28.423317000% 0.000000000%
1 15 2015 29.595493762% 0.000000000%
7 15 2015 20.000000000% 3.660095245%
<PAGE>
SCHEDULE 3
TO LEASE
SUPPLEMENT
NO. 2
PSRC
SCHEDULE OF SPECIAL CASUALTY VALUES
If the event giving rise to an obligation to pay Special Casualty
Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences shall be
earlier or later than the date assumed in originally calculating
the applicable Special Casualty Value, such value shall be
appropriately adjusted, based upon the date as of which the Owner
Participant incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 119.943305400%
1 15 1995 120.731407970%
7 15 1995 120.609214873%
1 15 1996 120.171498553%
7 15 1996 120.849881642%
1 15 1997 119.325908600%
7 15 1997 119.844562215%
1 15 1998 117.971409552%
7 15 1998 115.763080843%
1 15 1999 116.061419540%
7 15 1999 113.596561703%
1 15 2000 113.834176787%
7 15 2000 111.096850468%
1 15 2001 111.273097047%
7 15 2001 107.160419740%
1 15 2002 107.296961428%
7 15 2002 100.949087310%
1 15 2003 101.093240375%
7 15 2003 95.941448910%
1 15 2004 96.097877058%
7 15 2004 94.528147487%
1 15 2005 94.359053013%
7 15 2005 87.997457458%
1 15 2006 88.300387595%
7 15 2006 81.629533847%
1 15 2007 81.954251412%
7 15 2007 74.959630735%
1 15 2008 75.307666663%
7 15 2008 67.973982853%
1 15 2009 68.347095520%
7 15 2009 60.658188828%
1 15 2010 61.062508093%
7 15 2010 52.993553830%
1 15 2011 53.652603805%
7 15 2011 45.197269993%
1 15 2012 46.100236978%
7 15 2012 37.273317053%
1 15 2013 37.788473833%
7 15 2013 29.221627858%
1 15 2014 29.031990053%
7 15 2014 19.208027658%
1 15 2015 19.995863903%
7 15 2015 13.660095257%
<PAGE>
PSRC
ADDENDUM TO SCHEDULE 3 OF LEASE
The foregoing Special Casualty
Values are comprised of the
following two components:
DATE LOSS VALUE ACCRUED RENT
7 15 1994 116.633753105% 3.309552295%
1 15 1995 120.731407970% 0.000000000%
7 15 1995 116.211839110% 4.397375763%
1 15 1996 120.171498553% 0.000000000%
7 15 1996 115.557138975% 5.292742670%
1 15 1997 119.325908600% 0.000000000%
7 15 1997 114.475907920% 5.368654295%
1 15 1998 117.971409552% 0.000000000%
7 15 1998 112.762174648% 3.000906195%
1 15 1999 116.061419540% 0.000000000%
7 15 1999 110.693668520% 2.902893183%
1 15 2000 113.834176787% 0.000000000%
7 15 2000 108.299533638% 2.797316830%
1 15 2001 111.273097047% 0.000000000%
7 15 2001 104.515894963% 2.644524778%
1 15 2002 107.296961428% 0.000000000%
7 15 2002 100.949087310% 0.000000000%
1 15 2003 101.093240058% 0.000000318%
7 15 2003 95.941448910% 0.000000000%
1 15 2004 96.097877058% 0.000000000%
7 15 2004 92.018906773% 2.509240715%
1 15 2005 94.359053013% 0.000000000%
7 15 2005 86.060160775% 1.937296680%
1 15 2006 88.300387595% 0.000000000%
7 15 2006 79.855098033% 1.774435815%
1 15 2007 81.954251412% 0.000000000%
7 15 2007 73.355973258% 1.603657475%
1 15 2008 75.307666663% 0.000000000%
7 15 2008 66.549482185% 1.424500668%
1 15 2009 68.347095520% 0.000000000%
7 15 2009 59.423709835% 1.234478992%
1 15 2010 61.062508093% 0.000000000%
7 15 2010 52.066637988% 0.926915843%
1 15 2011 53.652603805% 0.000000000%
7 15 2011 44.575894493% 0.621375500%
1 15 2012 46.100236978% 0.000000000%
7 15 2012 36.653304233% 0.620012823%
1 15 2013 37.788473833% 0.000000000%
7 15 2013 28.140990218% 1.080637643%
1 15 2014 29.031990053% 0.000000000%
7 15 2014 19.208027658% 0.000000000%
1 15 2015 19.995863903% 0.000000000%
7 15 2015 10.000000000% 3.660095245%
<PAGE>
SCHEDULE 4
TO LEASE
SUPPLEMENT
NO. 2
PSRC
SCHEDULE OF NET CASUALTY VALUES
If the event giving rise to an obligation to pay Net Casualty
Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences shall be
earlier or later than the date assumed in originally calculating
the applicable Net Casualty Value, such value shall be
appropriately adjusted, based upon the date as of which the Owner
Participant incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 29.905677235%
1 15 1995 30.619716816%
7 15 1995 31.289655915%
1 15 1996 31.917609872%
7 15 1996 32.498358873%
1 15 1997 33.032989113%
7 15 1997 35.116140685%
1 15 1998 35.615545345%
7 15 1998 36.047304390%
1 15 1999 36.449601535%
7 15 1999 36.829355433%
1 15 2000 37.179781353%
7 15 2000 37.507440950%
1 15 2001 37.806104558%
7 15 2001 38.086583205%
1 15 2002 38.355966112%
7 15 2002 38.632729323%
1 15 2003 38.921035453%
7 15 2003 39.221365913%
1 15 2004 39.534222208%
7 15 2004 39.868482165%
1 15 2005 39.869136185%
7 15 2005 39.899414715%
1 15 2006 40.386547960%
7 15 2006 38.454302580%
1 15 2007 38.978908720%
7 15 2007 36.960284110%
1 15 2008 37.525229750%
7 15 2008 35.419224783%
1 15 2009 36.027717703%
7 15 2009 33.889014400%
1 15 2010 34.548757283%
7 15 2010 35.332396943%
1 15 2011 36.268620653%
7 15 2011 36.632065453%
1 15 2012 37.835808380%
7 15 2012 29.322208810%
1 15 2013 30.163753543%
7 15 2013 27.273434313%
1 15 2014 27.437977413%
7 15 2014 28.423317000%
1 15 2015 29.595493762%
7 15 2015 23.660095258%
<PAGE>
SCHEDULE 5
TO LEASE
SUPPLEMENT
NO. 2
PSRC
SCHEDULE OF NET SPECIAL CASUALTY VALUES
If the event giving rise to an obligation to pay Net Special
Casualty Value occurs and the actual date as of which the
Owner Participant shall incur Federal income tax
consequences shall be earlier or later than the date assumed
in originally calculating the applicable Net Special
Casualty Value, such value shall be appropriately adjusted,
based upon the date as of which the Owner Participant
incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 29.705414508%
1 15 1995 30.438675708%
7 15 1995 30.316482610%
1 15 1996 31.026780883%
7 15 1996 31.705163975%
1 15 1997 32.300484053%
7 15 1997 32.819137670%
1 15 1998 33.222741615%
7 15 1998 33.554704398%
1 15 1999 33.853043095%
7 15 1999 34.124502770%
1 15 2000 34.362117855%
7 15 2000 34.572261638%
1 15 2001 34.748508218%
7 15 2001 34.901464213%
1 15 2002 35.038005900%
7 15 2002 35.176387505%
1 15 2003 35.320540570%
7 15 2003 35.470705798%
1 15 2004 35.627133945%
7 15 2004 35.798441633%
1 15 2005 35.629347158%
7 15 2005 35.482797525%
1 15 2006 35.785727663%
7 15 2006 33.661596648%
1 15 2007 33.986314212%
7 15 2007 31.759464305%
1 15 2008 32.107500233%
7 15 2008 29.775538935%
1 15 2009 30.148651605%
7 15 2009 27.764751085%
1 15 2010 28.169070350%
7 15 2010 28.686633488%
1 15 2011 29.345683465%
7 15 2011 29.420394493%
1 15 2012 30.323361478%
7 15 2012 21.496441552%
1 15 2013 22.011598333%
7 15 2013 18.781278545%
1 15 2014 18.591640738%
7 15 2014 19.208027658%
1 15 2015 19.995863903%
7 15 2015 13.660095257%
Exhibit B-4(d)
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE AS
SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 2 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 2, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 2 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 2 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
LEASE SUPPLEMENT NO. 2
dated as of January 1, 1994
to
FACILITY LEASE NO. 2
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities,
but solely as Owner Trustee under
Trust Agreement No. 2,
dated as of December 1, 1988,
with Textron Financial Corporation,
as successor in interest to
Lease Management Realty Corporation IV,
Lessor
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Original Facility Lease Recorded on December 28,
1988 at Deed Book Volume 12Z, Page 126, Claiborne County,
Mississippi, Chancery Clerk's Office
<PAGE>
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE
AS SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 2 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 2, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 2 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 2 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS THE ORIGINAL COUNTERPART. RECEIPT OF THIS
ORIGINAL COUNTERPART IS HEREBY ACKNOWLEDGED BY BANKERS TRUST
COMPANY, AS CORPORATE INDENTURE TRUSTEE.
By:
Authorized Officer
LEASE SUPPLEMENT NO. 2
dated as of January 1, 1994
to
FACILITY LEASE NO. 2
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities, but solely as
Owner Trustee under Trust Agreement No. 2,
dated as of December 1, 1988,
with Textron Financial Corporation,
as successor in interest to
Lease Management Realty Corporation IV,
Lessor
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Original Facility Lease Recorded on December 28,
1988 at Deed Book Volume 12Z, Page 126; Claiborne County,
Mississippi, Chancery Clerk's Office
<PAGE>
LEASE SUPPLEMENT NO. 2, dated as of January 1, 1994
("Lease Supplement No. 2"), to FACILITY LEASE NO. 2, dated as of
December 1, 1988, as supplemented (the "Facility Lease"), between
MERIDIAN TRUST COMPANY, a Pennsylvania trust company, not in its
individual capacity, but solely as Corporate Owner Trustee and
STEPHEN J. KABA not in his individual capacity, but solely as
successor Individual Owner Trustee (together, the "Lessor"),
under the Trust Agreement (such term, and all other capitalized
terms used herein without definition, being defined as provided
in Section 1 below), and SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest; and
WHEREAS, the Lessee, the Lessor, the Owner Participant,
the Funding Corporation and the Indenture Trustee have entered
into Refunding Agreement No. 2-A, dated as of January 1, 1994,
providing for the issuance by the Owner Trustee of a new series
of Fixed Rate Notes (the "Refunding Notes") to refund the
Outstanding Notes; and
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into Supplemental Indenture No. 2, dated as of
January 1, 1994, to the Indenture creating the Refunding Notes
for such purpose and establishing the terms, conditions and
designations thereof; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return in the event, among
other things, of the issuance of the Refunding Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals shall have the
meanings assigned to such terms in Appendix A to the Facility
Lease. Appendix A to the Lease is hereby amended such that
Funding Corporation, as defined therein shall mean GG1B Funding
Corporation.
SECTION 2. Amendments; Schedules.
(a) Section 3(h) of the Lease is hereby amended by
deleting such section in its entirety and substituting therefore
the following: "(h) Intentionally omitted."
(b) As of the date first written above and until and
unless further amended, Schedules 1 through 5 of the Facility
Lease are hereby amended as follows:
(i) Schedule 1 to the Facility Lease entitled
"Basic Rent Percentages" is deleted in its entirety and is hereby
replaced with Schedule 1 hereto.
(ii) Schedule 2 to the Facility Lease entitled
"Schedule of Casualty Values" is deleted in its entirety and is
hereby replaced with Schedule 2 hereto.
(iii) Schedule 3 to the Facility Lease entitled
"Schedule of Special Casualty Values" is deleted in its entirety
and is hereby replaced with Schedule 3 hereto.
(iv) Schedule 4 to the Facility Lease entitled
"Schedule of Net Casualty Values" is deleted in its entirety and
is hereby replaced with Schedule 4 hereto.
(v) Schedule 5 to the Facility Lease entitled
"Schedule of Net Special Casualty Values" is deleted in its
entirety and is hereby replaced with Schedule 5 hereto.
(c) Schedule PS to the Facility Lease is attached
hereto.
(d) Section 3(i) of the Facility Lease is amended by
inserting the following paragraph after Section 3(i)(D):
Nothing in this Section 3(i) is intended to
or shall create any right or entitlement of
the Lessee or any Person other than the Owner
Participant, contingent or otherwise, in or
to the proceeds of a drawing of the Equity
Portion of Rent under the Letter of Credit.
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Lease Supplement No.
2 may be executed in any number of counterparts and by each of
the parties hereto or thereto on separate counterparts, all such
counterparts together constituting but one and the same
instrument.
(b) Execution as Lease Supplement. This Lease
Supplement No. 2 is executed and shall be construed as a
supplement and amendment to the Facility Lease and shall form a
part thereof. On and from the delivery of this Lease Supplement
No. 2, any reference in any Transaction Document to the Facility
Lease shall be deemed to refer to the Facility Lease as
supplemented and amended by this Lease Supplement No. 2.
(c) Original Counterpart. The single executed original
of this Lease Supplement No. 2 marked "THIS COUNTERPART IS THE
ORIGINAL COUNTERPART" and containing the receipt of the
Indenture Trustee thereon shall be the "Original" of this Lease
Supplement No. 2. To the extent that the Facility Lease, as
supplemented by this Lease Supplement No. 2, constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as
in effect in any applicable jurisdiction, no security interest in
the Facility Lease, as so supplemented, may be created or
continued through the transfer or possession of any counterparts
of the Facility Lease and supplements thereto other than the
"Originals" of any thereof.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Lease Supplement No. 2 to be duly executed by an
officer thereunto duly authorized, as of the date set forth
above.
MERIDIAN TRUST COMPANY,
not in its individual
capacity but solely as
Corporate Owner Trustee
By:
Name: Stephen J. Kaba
Title: Vice President
Stephen J. Kaba, not in
his individual capacity
but solely as successor
Individual Owner Trustee
<PAGE>
ATTEST: SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _________, 19__, within my jurisdiction, the within named
STEPHEN J. KABA, who acknowledged that he is a Vice President of
MERIDIAN TRUST COMPANY, a Pennsylvania trust company, Corporate
Owner Trustee under that certain Trust Agreement No. 2 dated as
of December 1, 1988 among Lease Management Realty Corporation IV,
as Original Owner Participant, MERIDIAN TRUST COMPANY, as
Corporate Owner Trustee, and STEPHEN J. KABA, as successor
Individual Owner Trustee to the original Individual Owner
Trustee, Stephen M. Carta, and that for and on behalf of the said
trust company, and as its act and deed in said capacity as
Corporate Owner Trustee and its having been duly authorized so to
do, he executed the above and foregoing instrument after first
having been duly authorized by said trust company so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _________, 19__, within my jurisdiction, the within named
STEPHEN J. KABA, who acknowledged that he is the successor
Individual Owner Trustee under that certain Trust Agreement No. 2
dated as of December 1, 1988 among Lease Management Realty
Corporation IV, as Original Owner Participant, MERIDIAN TRUST
COMPANY, as Corporate Owner Trustee, and STEPHEN J. KABA, as
successor Individual Owner Trustee to the original Individual
Owner Trustee, Stephen M. Carta, and that in his capacity as
Individual Owner Trustee he executed the above and foregoing
instrument after first having been duly authorized to do so.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the said Parish and State, on this ____ day
of ____________, 19__, within my jurisdiction, the within named
_____ ______, who acknowledged that he is a
___________________________ of SYSTEM ENERGY RESOURCES, INC., an
Arkansas corporation, and that for and on behalf of the said
corporation, and as its act and deed he executed the above and
foregoing instrument, after first having been duly authorized by
said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
SCHEDULE 1
TO
LEASE
SUPPLEMENT
NO. 2
TEXTRON
BASIC RENT PERCENTAGES
BASIC RENT ADVANCE ARREARS PERCENTAGE OF
PAYMENT DATE FACILITY COST
1 18 1994 0.082331150% 0.000000000% 0.082331150%
7 15 1994 0.289020960% 3.485116740% 3.774137700%
1 15 1995 3.347764510% 0.000000000% 3.347764510%
7 15 1995 0.000000000% 4.947361710% 4.947361710%
1 15 1996 3.276802420% 0.000000000% 3.276802420%
7 15 1996 0.000000000% 5.307344750% 5.307344750%
1 15 1997 2.440227820% 0.761139960% 3.201367780%
7 15 1997 0.000000400% 5.382779390% 5.382779790%
1 15 1998 3.120328330% 0.000000000% 3.120328330%
7 15 1998 0.000000880% 5.463818450% 5.463819330%
1 15 1999 3.033267640% 0.000000000% 3.033267640%
7 15 1999 0.000000990% 5.550878650% 5.550879640%
1 15 2000 3.496285760% 0.000000000% 3.496285760%
7 15 2000 0.000000000% 5.087860430% 5.087860430%
1 15 2001 5.840659380% 0.000000000% 5.840659380%
7 15 2001 0.000000000% 2.743487800% 2.743487800%
1 15 2002 5.960158800% 0.000000000% 5.960158800%
7 15 2002 0.000000000% 2.623988470% 2.623988470%
1 15 2003 7.079474470% 0.000000000% 7.079474470%
7 15 2003 0.000000000% 2.458467160% 2.458467160%
1 15 2004 8.248363160% 0.000000000% 8.248363160%
7 15 2004 0.000000650% 2.243371880% 2.243372530%
1 15 2005 7.331678840% 0.000000000% 7.331678840%
7 15 2005 0.000000000% 3.160055960% 3.160055960%
1 15 2006 8.630017940% 0.000000000% 8.630017940%
7 15 2006 0.000000000% 1.861717500% 1.861717500%
1 15 2007 8.813812440% 0.000000000% 8.813812440%
7 15 2007 0.000000000% 1.677923000% 1.677923000%
1 15 2008 9.089139110% 0.000000000% 9.089139110%
7 15 2008 0.000000000% 1.402596330% 1.402596330%
1 15 2009 9.382937380% 0.000000000% 9.382937380%
7 15 2009 0.000000000% 1.106126660% 1.106126660%
1 15 2010 9.705059100% 0.000000000% 9.705059100%
7 15 2010 0.000000000% 0.786676340% 0.786676340%
1 15 2011 9.736351440% 0.000000000% 9.736351440%
7 15 2011 0.000000000% 0.755384000% 0.755384000%
1 15 2012 10.078516280% 0.000000000% 10.078516280%
7 15 2012 0.000000000% 0.413219160% 0.413219160%
1 15 2013 10.491735440% 0.000000000% 10.491735440%
7 15 2013 0.000000000% 0.000000000% 0.000000000%
1 15 2014 10.491735440% 0.000000000% 10.491735440%
7 15 2014 0.000000000% 0.000000000% 0.000000000%
1 15 2015 10.491735440% 0.000000000% 10.491735440%
7 15 2015 0.000000000% 0.000000000% 0.000000000%
<PAGE>
SCHEDULE 2
TO LEASE
SUPPLEMENT
NO. 2
TEXTRON
SCHEDULE OF CASUALTY VALUES
If the event giving rise to an obligation to pay Casualty Value
occurs and the actual date as of which the Owner Participant
shall incur Federal income tax consequences shall be earlier or
later than the date assumed in originally calculating the
applicable Casualty Values, such value shall be appropriately
adjusted, based upon the date as of which the Owner participant
incurred such tax consequences but otherwise on the Assumptions
used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 120.754768540%
1 15 1995 121.019149860%
7 15 1995 121.689038090%
1 15 1996 120.626003240%
7 15 1996 121.212212570%
1 15 1997 119.671406870%
7 15 1997 120.216301210%
1 15 1998 118.455108760%
7 15 1998 118.925736280%
1 15 1999 116.932027280%
7 15 1999 117.343076240%
1 15 2000 115.108691460%
7 15 2000 114.861517380%
1 15 2001 112.905993220%
7 15 2001 110.057445810%
1 15 2002 110.270346230%
7 15 2002 107.117842970%
1 15 2003 107.267901140%
7 15 2003 102.787360160%
1 15 2004 102.925479960%
7 15 2004 97.065442480%
1 15 2005 97.236135610%
7 15 2005 92.175374600%
1 15 2006 91.302040050%
7 15 2006 84.758049810%
1 15 2007 85.099327220%
7 15 2007 78.242165800%
1 15 2008 78.646642330%
7 15 2008 71.482369440%
1 15 2009 72.152459890%
7 15 2009 64.685681340%
1 15 2010 65.668769450%
7 15 2010 57.898877360%
1 15 2011 59.249468720%
7 15 2011 51.118535870%
1 15 2012 52.155174400%
7 15 2012 43.620922280%
1 15 2013 44.964516360%
7 15 2013 36.020759930%
1 15 2014 37.817350580%
7 15 2014 28.462944840%
1 15 2015 29.826217800%
7 15 2015 20.063619680%
<PAGE>
TEXTRON
ADDENDUM TO SCHEDULE 2 OF
LEASE
The foregoing Casualty Values
are comprised of the following
two components:
<PAGE>
SCHEDULE 3
TO LEASE
SUPPLEMENT
NO. 2
TEXTRON
SCHEDULE OF SPECIAL CASUALTY VALUES
If the event giving rise to an obligation to pay Special Casualty
Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences shall be
earlier or later than the date assumed in originally calculating
the applicable Special Casualty Value, such value shall be
appropriately adjusted, based upon the date as of which the Owner
Participant incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE
PAYMENT OF
DATE FACILITY COST
7 15 1994 118.957187440%
1 15 1995 119.146597350%
7 15 1995 119.738387350%
1 15 1996 118.593997040%
7 15 1996 119.095457830%
1 15 1997 117.466369000%
7 15 1997 117.919298200%
1 15 1998 116.062305030%
7 15 1998 116.433136280%
1 15 1999 114.335468840%
7 15 1999 114.638223580%
1 15 2000 112.291027970%
7 15 2000 111.926338060%
1 15 2001 109.848396880%
7 15 2001 106.872326820%
1 15 2002 106.952386020%
7 15 2002 103.661501150%
1 15 2003 103.667406260%
7 15 2003 99.036700040%
1 15 2004 99.018391700%
7 15 2004 92.995401950%
1 15 2005 92.996346590%
7 15 2005 87.758757410%
1 15 2006 86.701219750%
7 15 2006 79.965343880%
1 15 2007 80.106732710%
7 15 2007 73.041346000%
1 15 2008 73.228912820%
7 15 2008 65.838683590%
1 15 2009 66.273393800%
7 15 2009 58.561418020%
1 15 2010 59.289082520%
7 15 2010 51.253113900%
1 15 2011 52.326531540%
7 15 2011 43.906864910%
1 15 2012 44.642727500%
7 15 2012 35.795155020%
1 15 2013 36.812361150%
7 15 2013 27.528604160%
1 15 2014 28.971013910%
7 15 2014 19.247655500%
1 15 2015 20.226587940%
7 15 2015 10.063619680%
<PAGE>
TEXTRON
ADDENDUM TO SCHEDULE 3 OF
LEASE
The foregoing Special Casualty
Values are comprised of the
following two components:
<PAGE>
SCHEDULE 4
TO LEASE
SUPPLEMENT
NO. 2
TEXTRON
SCHEDULE OF NET CASUALTY VALUES
If the event giving rise to an obligation to pay Net Casualty
Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences shall be
earlier or later than the date assumed in originally calculating
the applicable Net Casualty Value, such value shall be
appropriately adjusted, based upon the date as of which the Owner
Participant incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 29.905697282%
1 15 1995 30.619712510%
7 15 1995 31.289600740%
1 15 1996 31.053910810%
7 15 1996 31.640120150%
1 15 1997 32.205291090%
7 15 1997 32.750185430%
1 15 1998 33.251444430%
7 15 1998 33.722071940%
1 15 1999 34.158914630%
7 15 1999 34.569963600%
1 15 2000 34.946720110%
7 15 2000 34.847843950%
1 15 2001 35.125753860%
7 15 2001 35.374378010%
1 15 2002 35.587278430%
7 15 2002 35.770945500%
1 15 2003 35.921003670%
7 15 2003 36.061469990%
1 15 2004 36.199589800%
7 15 2004 36.344542950%
1 15 2005 36.515236090%
7 15 2005 36.453795290%
1 15 2006 35.580460730%
7 15 2006 34.692157310%
1 15 2007 35.033434720%
7 15 2007 33.307429800%
1 15 2008 33.711906330%
7 15 2008 34.234176110%
1 15 2009 34.904266570%
7 15 2009 35.714298680%
1 15 2010 36.697386790%
7 15 2010 37.845877020%
1 15 2011 39.196468390%
7 15 2011 31.939151870%
1 15 2012 32.975790400%
7 15 2012 33.129187120%
1 15 2013 34.472781210%
7 15 2013 36.020759930%
1 15 2014 37.817350580%
7 15 2014 28.462944840%
1 15 2015 29.826217800%
7 15 2015 20.063619680%
<PAGE>
SCHEDULE 5
TO LEASE
SUPPLEMENT
NO. 2
TEXTRON
SCHEDULE OF NET SPECIAL CASUALTY VALUES
If the event giving rise to an obligation to pay Net Special
Casualty Value occurs and the actual date as of which the Owner
Participant shall incur Federal income tax consequences shall be
earlier or later than the date assumed in originally calculating
the applicable Net Casualty Value, such value shall be
appropriately adjusted, based upon the date as of which the Owner
Participant incurred such tax consequences but otherwise on the
Assumptions used to calculate the following values.
BASIC RENT PERCENTAGE OF
PAYMENT DATE FACILITY COST
7 15 1994 28.612857380%
1 15 1995 28.747160000%
7 15 1995 29.338950000%
1 15 1996 29.021904610%
7 15 1996 29.523365410%
1 15 1997 30.000253210%
7 15 1997 30.453182410%
1 15 1998 30.858640700%
7 15 1998 31.229471950%
1 15 1999 31.562356190%
7 15 1999 31.865110940%
1 15 2000 32.129056610%
7 15 2000 31.912664640%
1 15 2001 32.068157520%
7 15 2001 32.189259020%
1 15 2002 32.269318220%
7 15 2002 32.314603680%
1 15 2003 32.320508790%
7 15 2003 32.310809880%
1 15 2004 32.292501530%
7 15 2004 32.274502420%
1 15 2005 32.275447060%
7 15 2005 32.037178100%
1 15 2006 30.979640430%
7 15 2006 29.899451380%
1 15 2007 30.040840210%
7 15 2007 28.106609990%
1 15 2008 28.294176810%
7 15 2008 28.590490260%
1 15 2009 29.025200470%
7 15 2009 29.590035360%
1 15 2010 30.317699860%
7 15 2010 31.200113570%
1 15 2011 32.273531200%
7 15 2011 24.727480910%
1 15 2012 25.463343500%
7 15 2012 25.303419860%
1 15 2013 26.320626000%
7 15 2013 27.528604160%
1 15 2014 28.971013910%
7 15 2014 19.247655500%
1 15 2015 20.226587940%
7 15 2015 10.063619680%
Exhibit B-7(d)
SUPPLEMENTAL INDENTURE NO. 2
dated as of January 1, 1994
to
TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT
OF FACILITY LEASE NO. 1
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities,
but solely as Owner Trustee under Trust Agreement No. 1
dated as of December 1, 1988, with
Resources Capital Management Corporation,
as successor in interest to
Public Service Resources Corporation,
the Original Owner Participant
and
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as
Corporate Indenture Trustee
and
STANLEY BURG,
not in his individual capacity, but solely as
Individual Indenture Trustee
Original Indenture Recorded on
December 28, 1988, at Deed of Trust Book
Volume 13A, Page 350,
Claiborne County, Mississippi, Chancery Clerk's Office
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2, dated as of January 1,
1994 ("Supplemental Indenture No. 2"), to Trust Indenture, Deed
of Trust, Mortgage, Security Agreement and Assignment of Facility
Lease No. 1 dated as of December 1, 1988, as supplemented (the
"Indenture") between MERIDIAN TRUST COMPANY, a Pennsylvania trust
company, and STEPHEN J. KABA each of whose address is 35 North
Sixth Street, Reading, Pennsylvania 19601, not in their
individual capacities, except as expressly provided otherwise,
but each solely as trustee (collectively, the "Owner Trustee")
under the Trust Agreement (such term, and other capitalized terms
used herein without definition, having the meanings ascribed
thereto in Section 1 below), BANKERS TRUST COMPANY, a New York
banking corporation (not in its individual capacity, but solely
as the Corporate Indenture Trustee, and, for all purposes except
those with respect to Section 6.4(g) of the Indenture, the
Indenture Trustee), and STANLEY BURG (not in his individual
capacity, but solely as the Individual Indenture Trustee, and
solely with respect to Section 6.4(g) of the Indenture, the
Indenture Trustee), each of whose address is Four Albany Street,
New York, New York 10006,
W I T N E S S E T H:
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into the Indenture pursuant to which the Owner
Trustee issued the Initial Series Notes and Supplemental
Indenture No. 1, dated as of April 1, 1989, pursuant to which the
Owner Trustee issued the Outstanding Notes;
WHEREAS, Section 3.5(1) of the Indenture provides,
among other things, that the Outstanding Notes may be refunded
with Additional Notes;
WHEREAS, Section 3.5(4) of the Indenture provides,
among other things, that the Owner Trustee and the Indenture
Trustee may enter into indentures supplemental to the Indenture
for, among other things, the purpose of establishing the terms,
conditions and designations of Additional Notes;
WHEREAS, the Owner Trustee desires to issue Additional
Notes to effect a refunding of the Outstanding Notes of the
series created and established pursuant to Supplement No. 1,
dated as of April 1, 1989, to the Indenture and to enter into
this Supplemental Indenture No. 2 to establish the terms,
conditions and designations of such Additional Notes; and
WHEREAS, Section 10.1(viii) of the Indenture provides
that, without the consent of Holders of the Notes Outstanding,
the Indenture Trustee and the Owner Trustee may, from time to
time and at any time, execute a supplement to the Indenture in
order to evidence the issuance of, and to provide the terms of,
Additional Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals hereto shall have
the meanings assigned to such terms in Appendix A to the
Indenture. Appendix A to the Indenture is hereby amended such
that Funding Corporation, as defined therein shall mean GG1B
Funding Corporation, a Delaware corporation. Schedule PS to the
Indenture is attached hereto.
SECTION 2. Terms, Conditions and Designations of
the Fixed Rate Notes.
(a) The Fixed Rate Notes. There are hereby created
and established two separate series of Fixed Rate Refunding Notes
designated, respectively, "Promissory Notes, Fixed Rate Refunding
Series due 2011" (hereinafter sometimes called the "Series 2011
Notes") and "Promissory Notes, Fixed Rate Refunding Series due
2014" (hereinafter sometimes called the "Series 2014 Notes"). The
Series 2011 Notes and the Series 2014 Notes are hereinafter
sometimes referred to, together, as the "Refunding Notes". The
Refunding Notes shall be issued in the principal amounts, shall
bear interest at the rates per annum and shall have the final
maturities set forth below:
Original Interes Final
Principal Amount Rate Maturity
Series 2011 Notes $287,387,000 7.43% January 15, 2011
Series 2014 Notes $ 60,622,000 8.20% January 15, 2014
The Series 2011 Notes and the Series 2014 Notes shall
be substantially in the form of Exhibits A-l and A-2 hereto,
respectively.
Each Refunding Note shall bear interest on the
principal amount thereof from time to time outstanding from the
Issue Date designated thereon until paid in full at the rate of
interest set forth therein, which interest shall be payable on
July 15, 1994 and on each January 15 and July 15 thereafter to
and including the final maturity date thereof, unless paid in
full prior to such date as provided herein and in such Refunding
Note. The principal amount of each Refunding Note shall be
payable on the dates and in the amounts as set forth in Schedule
1 attached thereto, as such Schedule may be adjusted from time to
time in accordance with the terms hereof and of such Refunding
Note. Installments of principal of and premium, if any, and
interest on each Refunding Note shall be due and payable on the
payment dates specified in Schedule 1 attached thereto.
Each Refunding Note shall be subject to prepayment as
set forth in such Refunding Note.
(b) Certain Adjustments to Amortization Schedules. The
schedules of principal amortization attached to the Refunding
Notes may be adjusted at the discretion of the Owner Trustee, as
contemplated by, and subject to the conditions set forth in,
Section 2(e) of the Participation Agreement; provided, however,
that no such adjustment shall be made by the Owner Trustee which
will increase or reduce the average life of such Refunding Note
(calculated in accordance with generally accepted financial
practice) from the date of initial issuance by more than 6
months; and provided, further, that any such adjustment may be
made only in connection with a recalculation of Basic Rent
pursuant to Section 3(d) or 3(e)(v)(C) of the Facility Lease. If
the Owner Trustee shall propose to make the foregoing adjustment,
the Owner Trustee shall, as contemplated by Section 3.12 of the
Indenture, deliver to the Indenture Trustee and to the Lessee at
least 30 days prior to the first payment date (specified on the
schedule to such Refunding Note) proposed to be affected by such
adjustment, a certificate of the Owner Trustee prepared by the
Owner Participant and the Lessee (x) stating that the Owner
Trustee has elected to make such adjustment, (y) setting forth
the revised schedule of principal amortization for such Refunding
Note and (z) attaching calculations showing that the average life
of such Refunding Note will not be reduced or increased except as
permitted by this paragraph (b). The Indenture Trustee may
conclusively rely on such Owner Trustee certificate and shall
have no duty with respect to the calculations referred to in the
foregoing clause (z).
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Supplemental
Indenture No. 2 may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but
all such counterparts shall together constitute but one and the
same instrument.
(b) Execution as Supplemental Indenture. This
Supplemental Indenture No. 2 is executed and shall be construed
as an indenture supplemental to the Indenture and, as provided in
the Indenture, this Supplemental Indenture No. 2 shall form a
part thereof. On and after the delivery of this Supplemental
Indenture No. 2, any reference in any Transaction Document to the
Indenture shall be deemed to refer to the Indenture as
supplemented and amended by this Supplemental Indenture No. 2.
(c) Responsibility for Recitals, Etc. The Indenture
Trustee makes no representation or warranty as to the correctness
of any statement, recital or representation made by any Person
other than the Indenture Trustee in this Supplemental Indenture
No. 2, any other Transaction Document or the Refunding Notes or,
except with respect to the due authentication by the Indenture
Trustee of the Refunding Notes, as to the validity or sufficiency
of this Supplemental Indenture No. 2 or the Refunding Notes.
(d) Provisions Binding on Successors. All the
covenants, stipulations, promises and agreements in this
Supplemental Indenture No. 2 contained by or on behalf of the
Owner Trustee shall bind its successors and assigns, whether so
expressed or not.
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee and the Indenture
Trustee have each caused this Supplemental Indenture No. 2 to be
duly executed by their respective officers thereunto duly
authorized, all as of the date set forth above.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee
By:
Title: Vice President
STEPHEN J. KABA, not in his individual
capacity, but solely as Individual Owner
Trustee
BANKERS TRUST COMPANY,
ATTEST: not in its individual capacity, but
solely as Corporate Indenture Trustee
By:
Title: Vice President
STANLEY BURG,
not in his individual capacity, but
solely as Individual Indenture Trustee
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this __ day of
______, 19__, within my jurisdiction, the within named STEPHEN J.
KABA who acknowledged that he is a Vice President of MERIDIAN
TRUST COMPANY, a Pennsylvania trust company, Corporate Owner
Trustee under that certain Trust Agreement No. 1, dated as of
December 1, 1988 among Public Service Resources Corporation, as
Original Owner Participant, MERIDIAN TRUST COMPANY, as Corporate
Owner Trustee, and STEPHEN J. KABA as successor Individual Owner
Trustee to the original individual Owner Trustee, Stephen M.
Carta, and that for and on behalf of the said trust company, and
as its act and deed in said capacity as Corporate Owner Trustee
and its having been duly authorized so to do, he executed the
above and foregoing instrument after first having been duly
authorized by said trust company so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _______, 19__ within my jurisdiction, the within named STEPHEN
J. KABA who acknowledged that he is successor Individual Owner
Trustee under that certain Trust Agreement No. 1, dated as of
December 1, 1988 among [Public Service Resources Corporation, as
Original Owner Participant, MERIDIAN TRUST COMPANY, as Corporate
Owner Trustee, and STEPHEN J. KABA as successor Individual Owner
Trustee to the original Individual Owner Trustee, Stephen M.
Carta, and that in his capacity as Individual Owner Trustee he
executed the above and foregoing instrument after first having
been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ___ day
of ________, 19_, within my jurisdiction, the within named
___________________, who acknowledged that he is a Vice President
of BANKERS TRUST COMPANY, a New York banking corporation and that
for and on behalf of said corporation, and as its act and deed,
he executed the above and foregoing instrument, after first
having been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _______, 19__, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, Corporate
Indenture Trustee under the Indenture, and that for and on behalf
of the said corporation, and as its act and deed in said capacity
as Corporate Indenture Trustee and its having been duly
authorized so to do, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this __ day of
________, 19__, within my jurisdiction, the within named STANLEY
BURG, who acknowledged that he executed the above and foregoing
instrument.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ___ day
of ___________, 19__, within my jurisdiction, the within named
STANLEY BURG, who acknowledged that he is Individual Indenture
Trustee under the Indenture, and that in his capacity as
Individual Indenture Trustee, he executed the above and foregoing
instrument, after first having been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
EXHIBIT A-1 TO
SUPPLEMENTAL
INDENTURE NO. 2
FORM OF PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2011
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED
FOR SALE IN VIOLATION OF SUCH ACT
PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2011
(DUE JANUARY 15, 2011)
Issue Date: January 18, 1994
No. R-1A
FOR VALUE RECEIVED, MERIDIAN TRUST COMPANY and STEPHEN
J. KABA not in their individual capacities, but solely as Owner
Trustee (collectively, the "Owner Trustee") under Trust Agreement
No. 1, dated as of December 1, 1988, with Resources Capital
Management Corporation (the "Owner Participant" as successor in
interest to Public Service Resources Corporation, hereby promise
to pay to Bankers Trust Company, not in its individual capacity,
but solely as Trustee under the Collateral Trust Indenture, dated
as of January 1, 1994, among GG1B Funding Corporation, System
Energy Resources, Inc. and Bankers Trust Company, as such
Collateral Trust Indenture may be supplemented or amended from
time to time, or registered assigns, the principal sum of TWO
HUNDRED EIGHTY-SEVEN MILLION THREE HUNDRED EIGHTY-SEVEN THOUSAND
DOLLARS ($287,387,000.00), such payment to be made in the amounts
and on the dates specified in Schedule 1 hereto, as such Schedule
1 may be revised in accordance herewith (the dates and amounts
set forth in Schedule I being herein called, respectively,
"Amortization Dates" and "Amortization Requirements"); and to pay
interest (computed on the basis of a 360-day year of twelve
30-day months) on the aggregate amount of such principal sum
remaining unpaid from time to time from the date of issuance of
this Fixed Rate Note until due and payable, semiannually in
arrears on January 15 and July 15 in each year, commencing July
15, 1994, at the rate of 7.43% per annum, until the principal
amount hereof is paid in full.
Capitalized terms used in this Fixed Rate Note which
are not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Trust Indenture, Deed of Trust, Mortgage, Security Agreement and
Assignment of Facility Lease No. 1, dated as of December 1, 1988,
as at any time heretofore or hereafter amended or supplemented in
accordance with the provisions thereof (the "Indenture"), between
the Owner Trustee and Bankers Trust Company and Stanley Burg, not
in their individual capacities, but solely as Corporate and
Individual Indenture Trustee, respectively (the "Indenture
Trustee"), shall be made only from the Lease Indenture Estate and
the Trust Estate and the Indenture Trustee shall have no
obligation for the payment thereof except to the extent that the
Indenture Trustee shall have sufficient income or proceeds from
the Lease Indenture Estate to make such payments in accordance
with the terms of Article V of the Indenture. The Holder hereof,
by its acceptance of this Fixed Rate Note, shall be deemed to
have agreed that such Holder will look solely to the Trust Estate
and the income and proceeds from the Lease Indenture Estate to
the extent available for distribution to the Holder hereof as
above provided, and that neither the Owner Participant nor,
except as expressly provided in the Indenture, the Owner Trustee
nor the Indenture Trustee is or shall be personally liable to the
Holder hereof for any amounts payable under this Fixed Rate Note
or for any performance to be rendered under the Indenture or any
Transaction Document or for any liability thereunder; provided,
however, that in the event that the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, or shall
be deemed to have assumed such obligations pursuant to Section
7(b)(4)(H) of the Participation Agreement, then all the payments
to be made on this Fixed Rate Note shall be made only from
payments made by the Lessee under this Fixed Rate Note in
accordance with the Assumption Agreement referred to in said
Section 3.9(b) of the Indenture and the Holder of this Fixed Rate
Note agrees that in such event it will look solely to the Lessee
for such payment and, subject to Section 2.4 of the Indenture, to
the Lease Indenture Estate.
Principal, premium, if any, and interest shall be
payable in immediately available funds in such coin or currency
of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, in
the manner provided in the Indenture, on presentment of this
Fixed Rate Note at the Indenture Trustee's Office, or as
otherwise provided in the Indenture.
In the manner and to the extent provided in the
Indenture, Schedule 1 hereto may be adjusted at the discretion of
the Owner Trustee in connection with an adjustment to Basic Rent
under Section 3(d) or 3(e)(v)(C) of the Facility Lease.
In the event of a partial prepayment of this Fixed Rate
Note (the payment of principal in accordance with Schedule 1
hereto not being considered for this purpose a prepayment), the
Amortization Requirement for each Amortization Date thereafter
shall be deemed to have been satisfied to the extent of an amount
equal to the quotient resulting from the division of (A) the
product of (w) the principal amount of such prepayment
(hereinafter called the "Prepaid Amount") and (x) such
Amortization Requirement by (B) the sum of (y) the principal
amount of this Fixed Rate Note then Outstanding (after giving
effect to such prepayment) and (z) the Prepaid Amount; provided,
however, that the remaining Amortization Requirements determined
as set forth in this paragraph shall be rounded to the nearest
integral multiple of $l.00, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to the
Prepaid Amount, such adjustment to such Amortization Requirements
to be made in the inverse order of the respective Amortization
Dates corresponding thereto. In connection with such adjustments
to Schedule 1 the Owner Trustee shall deliver to the Indenture
Trustee, not later than 30 days prior to the next date on which a
payment of principal of this Fixed Rate Note is due following
such partial prepayment, a revised Schedule 1 hereto prepared by
the Lessee and approved by the Owner Participant. The Indenture
Trustee may rely on such revised Schedule 1 and shall have no
duty with respect to the adjustments set forth therein other than
to make it available for inspection by the Holder of this Fixed
Rate Note.
The Holder hereof, by its acceptance of this Fixed Rate
Note, agrees that each payment received by it hereunder shall be
applied in the manner set forth in Section 3.11 of the Indenture.
The Holder of this Fixed Rate Note agrees, by its acceptance
hereof, that it will duly note by appropriate means all payments
of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note
unless and until all such notations have been duly made and the
other requirements of the Indenture have been complied with.
This Fixed Rate Note is one of the Fixed Rate Notes
referred to in the Indenture. The Indenture permits the issuance
of additional series of Notes, as provided in Section 3.5 of the
Indenture, and the several series may be for varying aggregate
principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are
pledged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and
premium, if any, and interest on this Fixed Rate Note and all
other Notes issued and outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a
statement of the rights of the Holders of, and the nature and
extent of the security for, this Fixed Rate Note and of the
rights of, and the nature and extent of the security for, the
Holders of the other Notes and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Fixed Rate Note.
This Fixed Rate Note is subject to purchase by the
Owner Trustee as provided in Section 6.8(b) of the Indenture.
This Fixed Rate Note is also subject to prepayment in full, at
the principal amount hereof plus accrued interest to the date
fixed for prepayment, in the event of the termination of the
Lease pursuant to Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the Participation Agreement, subject,
however, except in the case of a termination pursuant to Section
14 of the Lease, to the right of the Lessee to assume this Fixed
Rate Note on the Lease Termination Date, in which event there
shall be no redemption of this Fixed Rate Note as a consequence
of such termination.
In addition, this Fixed Rate Note may be prepaid in
whole or in part at any time on or after January 15, 2004 at the
following prepayment prices (expressed as a percentage of the
principal amount hereof being prepaid), together with interest
accrued to the date fixed for prepayment:
If Prepaid in the
12 Month Period Prepayment
Beginning January 15 Price
2004 102.477%
2005 101.981
2006 101.486
2007 100.991
2008 100.495
and thereafter at the principal amount thereof, together with
interest accrued to the date fixed for prepayment.
In the case an Indenture Event of Default shall occur
and be continuing, the unpaid balance of the principal of this
Fixed Rate Note and any other Notes, together with all accrued
but unpaid interest thereon, may, subject to certain rights of
the Owner Trustee and the Owner Participant contained or referred
to in the Indenture, be declared or may become due and payable in
the manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Fixed Rate
Note, and the lien of the Indenture or the Lease Indenture
Estate, is subject to being legally discharged prior to the
maturity of this Fixed Rate Note upon the deposit with the
Indenture Trustee of cash or certain securities sufficient to pay
this Fixed Rate Note when due in accordance with the terms of the
Indenture.
There shall be maintained at the Indenture Trustee's
Office a register for the purpose of registering transfers and
exchanges of Notes in the manner provided in the Indenture. The
transfer of this Fixed Rate Note is registrable, as provided in
the Indenture, upon surrender of this Fixed Rate Note for
registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered
Holder hereof, together with the amount of any applicable
transfer taxes. The Owner Trustee and the Indenture Trustee may
treat the person in whose name this Fixed Rate Note is registered
as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate
Note and for all other purposes whatsoever, whether or not this
Fixed Rate Note be overdue, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Fixed Rate Note shall be governed by, and
construed in accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the Corporate Owner Trustee has
caused this Fixed Rate Note to be duly executed as of the date
hereof.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the
Trust Agreement
By:
Title:
This Fixed Rate Note is one of the series of Notes
referred to therein and in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Indenture Trustee
By:
Title:
<PAGE>
SCHEDULE 1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Principal
Date Amount Payable
July 15, 1995 $4,427,574
July 15, 1996 8,173,526
July 15, 1997 8,780,819
January 15, 1998 9,797,200
July 15, 1998 0
January 15, 1999 10,553,218
July 15, 1999 0
January 15, 2000 11,367,575
July 15, 2000 0
January 15, 2001 16,451,365
January 15, 2002 25,015,690
January 15, 2003 20,448,177
January 15, 2004 6,714,698
January 15, 2005 23,969,709
January 15, 2006 17,535,449
January 15, 2007 18,387,970
January 15, 2008 19,290,257
January 15, 2009 20,459,938
January 15, 2010 33,115,817
Janaury 15, 2011 32,898,018
<PAGE>
EXHIBIT A-2 TO
SUPPLEMENTAL
INDENTURE NO. 2
FORM OF PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2014
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED
FOR SALE IN VIOLATION OF SUCH ACT
PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2014
(DUE JANUARY 15, 2014)
Issue Date: January 18, 1994
No. R-1B
FOR VALUE RECEIVED, MERIDIAN TRUST COMPANY and STEPHEN
J. KABA not in their individual capacities, but solely as Owner
Trustee (collectively, the "Owner Trustee") under Trust Agreement
No. 1, dated as of December 1, 1988, with Resources Capital
Management Corporation (the "Owner Participant" as successor in
interest to Public Service Resources Corporation), hereby promise
to pay to Bankers Trust Company, not in its individual capacity,
but solely as Trustee under the Collateral Trust Indenture, dated
as of January 1, 1994, among GG1B Funding Corporation, System
Energy Resources, Inc. and Bankers Trust Company, as such
Collateral Trust Indenture may be supplemented or amended from
time to time, or registered assigns, the principal sum of SIXTY
MILLION SIX HUNDRED TWENTY TWO THOUSAND DOLLARS ($60,622,000.00),
such payment to be made in the amounts and on the dates specified
in Schedule 1 hereto, as such Schedule 1 may be revised in
accordance herewith (the dates and amounts set forth in Schedule
I being herein called, respectively, "Amortization Dates" and
"Amortization Requirements"); and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the
aggregate amount of such principal sum remaining unpaid from time
to time from the date of issuance of this Fixed Rate Note until
due and payable, semiannually in arrears on January 15 and July
15 in each year, commencing July 15, 1994, at the rate of 8.20%
per annum, until the principal amount hereof is paid in full.
Capitalized terms used in this Fixed Rate Note which
are not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Trust Indenture, Deed of Trust, Mortgage, Security Agreement and
Assignment of Facility Lease No. 1, dated as of December 1, 1988,
as at any time heretofore or hereafter amended or supplemented in
accordance with the provisions thereof (the "Indenture"), between
the Owner Trustee and Bankers Trust Company and Stanley Burg, not
in their individual capacities but solely as Corporate and
Individual Indenture Trustee, respectively (the "Indenture
Trustee"), shall be made only from the Lease Indenture Estate and
the Trust Estate and the Indenture Trustee shall have no
obligation for the payment thereof except to the extent that the
Indenture Trustee shall have sufficient income or proceeds from
the Lease Indenture Estate to make such payments in accordance
with the terms of Article V of the Indenture. The Holder hereof,
by its acceptance of this Fixed Rate Note, shall be deemed to
have agreed that such Holder will look solely to the Trust Estate
and the income and proceeds from the Lease Indenture Estate to
the extent available for distribution to the Holder hereof as
above provided, and that neither the Owner Participant nor,
except as expressly provided in the Indenture, the Owner Trustee
nor the Indenture Trustee is or shall be personally liable to the
Holder hereof for any amounts payable under this Fixed Rate Note
or for any performance to be rendered under the Indenture or any
Transaction Document or for any liability thereunder; provided,
however, that in the event that the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, or shall
be deemed to have assumed such obligations pursuant to Section
7(b)(4)(H) of the Participation Agreement, then all the payments
to be made on this Fixed Rate Note shall be made only from
payments made by the Lessee under this Fixed Rate Note in
accordance with the Assumption Agreement referred to in said
Section 3.9(b) of the Indenture and the Holder of this Fixed Rate
Note agrees that in such event it will look solely to the Lessee
for such payment and, subject to Section 2.4 of the Indenture, to
the Lease Indenture Estate.
Principal, premium, if any, and interest shall be
payable in immediately available funds in such coin or currency
of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, in
the manner provided in the Indenture, on presentment of this
Fixed Rate Note at the Indenture Trustee's Office, or as
otherwise provided in the Indenture.
In the manner and to the extent provided in the
Indenture, Schedule 1 hereto may be adjusted at the discretion of
the Owner Trustee in connection with an adjustment to Basic Rent
under Section 3(d) or 3(e)(v)(C) of the Facility Lease.
In the event of a partial prepayment of this Fixed Rate
Note (the payment of principal in accordance with Schedule 1
hereto not being considered for this purpose a prepayment), the
Amortization Requirement for each Amortization Date thereafter
shall be deemed to have been satisfied to the extent of an amount
equal to the quotient resulting from the division of (A) the
product of (w) the principal amount of such prepayment
(hereinafter called the "Prepaid Amount") and (x) such
Amortization Requirement by (B) the sum of (y) the principal
amount of this Fixed Rate Note then Outstanding (after giving
effect to such prepayment) and (z) the Prepaid Amount; provided,
however, that the remaining Amortization Requirements determined
as set forth in this paragraph shall be rounded to the nearest
integral multiple of $1.00, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to the
Prepaid Amount, such adjustment to such Amortization Requirements
to be made in the inverse order of the respective Amortization
Dates corresponding thereto. In connection with such adjustments
to Schedule 1 the Owner Trustee shall deliver to the Indenture
Trustee, not later than 30 days prior to the next date on which a
payment of principal of this Fixed Rate Note is due following
such partial prepayment, a revised Schedule 1 hereto prepared by
the Lessee and approved by the Owner Participant. The Indenture
Trustee may rely on such revised Schedule 1 and shall have no
duty with respect to the adjustments set forth therein other than
to make it available for inspection by the Holder of this Fixed
Rate Note.
The Holder hereof, by its acceptance of this Fixed Rate
Note, agrees that each payment received by it hereunder shall be
applied in the manner set forth in Section 3.11 of the Indenture.
The Holder of this Fixed Rate Note agrees, by its acceptance
hereof, that it will duly note by appropriate means all payments
of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note
unless and until all such notations have been duly made and the
other requirements of the Indenture have been complied with.
This Fixed Rate Note is one of the Fixed Rate Notes
referred to in the Indenture. The Indenture permits the issuance
of additional series of Notes, as provided in Section 3.5 of the
Indenture, and the several series may be for varying aggregate
principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are
pledged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and
premium, if any, and interest on this Fixed Rate Note and all
other Notes issued and outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a
statement of the rights of the Holders of, and the nature and
extent of the security for, this Fixed Rate Note and of the
rights of, and the nature and extent of the security for, the
Holders of the other Notes and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Fixed Rate Note.
This Fixed Rate Note is subject to purchase by the
Owner Trustee as provided in Section 6.8(b) of the Indenture.
This Fixed Rate Note is also subject to prepayment in full, at
the principal amount hereof plus accrued interest to the date
fixed for prepayment, in the event of the termination of the
Lease pursuant to Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the Participation Agreement, subject,
however, except in the case of a termination pursuant to Section
14 of the Lease, to the right of the Lessee to assume this Fixed
Rate Note on the Lease Termination Date, in which event there
shall be no redemption of this Fixed Rate Note as a consequence
of such termination.
In addition, this Fixed Rate Note may be prepaid in
whole or in part at any time on or after January 15, 2004 at the
following prepayment prices (expressed as a percentage of the
principal amount hereof being prepaid), together with interest
accrued to the date fixed for prepayment:
If Prepaid in the
12 Month Period Prepayment
Beginning January 15 Price
2004 104.100%
2005 103.690
2006 103.280
2007 102.870
2008 102.460
2009 102.050
2010 101.640
2011 101.230
2012 100.820
2013 100.410
In the case an Indenture Event of Default shall occur
and be continuing, the unpaid balance of the principal of this
Fixed Rate Note and any other Notes, together with all accrued
but unpaid interest thereon, may, subject to certain rights of
the Owner Trustee and the Owner Participant contained or referred
to in the Indenture, be declared or may become due and payable in
the manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Fixed Rate
Note, and the lien of the Indenture or the Lease Indenture
Estate, is subject to being legally discharged prior to the
maturity of this Fixed Rate Note upon the deposit with the
Indenture Trustee of cash or certain securities sufficient to pay
this Fixed Rate Note when due in accordance with the terms of the
Indenture.
There shall be maintained at the Indenture Trustee's
Office a register for the purpose of registering transfers and
exchanges of Notes in the manner provided in the Indenture. The
transfer of this Fixed Rate Note is registrable, as provided in
the Indenture, upon surrender of this Fixed Rate Note for
registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered
Holder hereof, together with the amount of any applicable
transfer taxes. The Owner Trustee and the Indenture Trustee may
treat the person in whose name this Fixed Rate Note is registered
as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate
Note and for all other purposes whatsoever, whether or not this
Fixed Rate Note be overdue, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Fixed Rate Note shall be governed by, and
construed in accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the Corporate Owner Trustee has
caused this Fixed Rate Note to be duly executed as of the date
hereof.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the Trust
Agreement
By:
Title:
This Fixed Rate Note is one of the series of Notes
referred to therein and in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Indenture Trustee
By:
Title:
<PAGE>
SCHEDULE 1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Principal
Date Amount Payable
January 15, 2013 $20,505,384
January 15, 2014 40,116,616
Exhibit B-8(d)
SUPPLEMENTAL INDENTURE NO. 2
dated as of January 1, 1994
to
TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT
OF FACILITY LEASE NO. 2
dated as of December 1, 1988,
as supplemented,
between
MERIDIAN TRUST COMPANY
and STEPHEN J. KABA
not in their individual capacities,
but solely as Owner Trustee under Trust Agreement No. 2
dated as of December 1, 1988, with
Textron Financial Corporation,
as successor in interest to
Lease Management Realty Corporation IV,
the Original Owner Participant
and
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as
Corporate Indenture Trustee
and
STANLEY BURG,
not in his individual capacity, but solely as
Individual Indenture Trustee
Original Indenture Recorded on
December 28, 1988, at Deed of Trust Book
Volume 13C, Page 1,
Claiborne County, Mississippi, Chancery Clerk's Office
<PAGE>
SUPPLEMENTAL INDENTURE NO. 2, dated as of January 1,
1994 ("Supplemental Indenture No. 2"), to Trust Indenture, Deed
of Trust, Mortgage, Security Agreement and Assignment of Facility
Lease No. 2 dated as of December 1, 1988, as supplemented (the
"Indenture") between MERIDIAN TRUST COMPANY, a Pennsylvania trust
company, and STEPHEN J. KABA each of whose address is 35 North
Sixth Street, Reading, Pennsylvania 19601, not in their
individual capacities, except as expressly provided otherwise,
but each solely as trustee (collectively, the "Owner Trustee")
under the Trust Agreement (such term, and other capitalized terms
used herein without definition, having the meanings ascribed
thereto in Section 1 below), BANKERS TRUST COMPANY, a New York
banking corporation (not in its individual capacity, but solely
as the Corporate Indenture Trustee, and, for all purposes except
those with respect to Section 6.4(g) of the Indenture, the
Indenture Trustee), and STANLEY BURG (not in his individual
capacity, but solely as the Individual Indenture Trustee, and
solely with respect to Section 6.4(g) of the Indenture, the
Indenture Trustee), each of whose address is Four Albany Street,
New York, New York 10006,
W I T N E S S E T H:
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into the Indenture pursuant to which the Owner
Trustee issued the Initial Series Notes and Supplemental
Indenture No. 1, dated as of April 1, 1989, pursuant to which the
Owner Trustee issued the Outstanding Notes;
WHEREAS, Section 3.5(1) of the Indenture provides,
among other things, that the Outstanding Notes may be refunded
with Additional Notes;
WHEREAS, Section 3.5(4) of the Indenture provides,
among other things, that the Owner Trustee and the Indenture
Trustee may enter into indentures supplemental to the Indenture
for, among other things, the purpose of establishing the terms,
conditions and designations of Additional Notes;
WHEREAS, the Owner Trustee desires to issue Additional
Notes to effect a refunding of the Outstanding Notes of the
series created and established pursuant to Supplement No. 1,
dated as of April 1, 1989, to the Indenture and to enter into
this Supplemental Indenture No. 2 to establish the terms,
conditions and designations of such Additional Notes; and
WHEREAS, Section 10.1(viii) of the Indenture provides
that, without the consent of Holders of the Notes Outstanding,
the Indenture Trustee and the Owner Trustee may, from time to
time and at any time, execute a supplement to the Indenture in
order to evidence the issuance of, and to provide the terms of,
Additional Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals hereto shall have
the meanings assigned to such terms in Appendix A to the
Indenture. Appendix A to the Indenture is hereby amended such
that Funding Corporation, as defined therein shall mean GG1B
Funding Corporation, a Delaware corporation. Schedule PS to the
Indenture is attached hereto.
SECTION 2. Terms, Conditions and Designations of
the Fixed Rate Notes.
(a) The Fixed Rate Notes. There are hereby created
and established two separate series of Fixed Rate Refunding Notes
designated, respectively, "Promissory Notes, Fixed Rate Refunding
Series due 2011" (hereinafter sometimes called the "Series 2011
Notes") and "Promissory Notes, Fixed Rate Refunding Series due
2013" (hereinafter sometimes called the "Series 2013 Notes"). The
Series 2011 Notes and the Series 2013 Notes are hereinafter
sometimes referred to, together, as the "Refunding Notes". The
Refunding Notes shall be issued in the principal amounts, shall
bear interest at the rates per annum and shall have the final
maturities set forth below:
Original Interest Final
Principal Amount Rate Maturity
Series 2011 Notes $68,669,000 7.43% January 15, 2011
Series 2013 Notes $18,424,000 8.20% January 15, 2013
The Series 2011 Notes and the Series 2013 Notes shall
be substantially in the form of Exhibits A-l and A-2 hereto,
respectively.
Each Refunding Note shall bear interest on the
principal amount thereof from time to time outstanding from the
Issue Date designated thereon until paid in full at the rate of
interest set forth therein, which interest shall be payable on
July 15, 1994 and on each January 15 and July 15 thereafter to
and including the final maturity date thereof, unless paid in
full prior to such date as provided herein and in such Refunding
Note. The principal amount of each Refunding Note shall be
payable on the dates and in the amounts as set forth in Schedule
1 attached thereto, as such Schedule may be adjusted from time to
time in accordance with the terms hereof and of such Refunding
Note. Installments of principal of and premium, if any, and
interest on each Refunding Note shall be due and payable on the
payment dates specified in Schedule 1 attached thereto.
Each Refunding Note shall be subject to prepayment as
set forth in such Refunding Note.
(b) Certain Adjustments to Amortization Schedules. The
schedules of principal amortization attached to the Refunding
Notes may be adjusted at the discretion of the Owner Trustee, as
contemplated by, and subject to the conditions set forth in,
Section 2(e) of the Participation Agreement; provided, however,
that no such adjustment shall be made by the Owner Trustee which
will increase or reduce the average life of such Refunding Note
(calculated in accordance with generally accepted financial
practice) from the date of initial issuance by more than 6
months; and provided, further, that any such adjustment may be
made only in connection with a recalculation of Basic Rent
pursuant to Section 3(d) or 3(e)(v)(C) of the Facility Lease. If
the Owner Trustee shall propose to make the foregoing adjustment,
the Owner Trustee shall, as contemplated by Section 3.12 of the
Indenture, deliver to the Indenture Trustee and to the Lessee at
least 30 days prior to the first payment date (specified on the
schedule to such Refunding Note) proposed to be affected by such
adjustment, a certificate of the Owner Trustee prepared by the
Owner Participant and the Lessee (x) stating that the Owner
Trustee has elected to make such adjustment, (y) setting forth
the revised schedule of principal amortization for such Refunding
Note and (z) attaching calculations showing that the average life
of such Refunding Note will not be reduced or increased except as
permitted by this paragraph (b). The Indenture Trustee may
conclusively rely on such Owner Trustee certificate and shall
have no duty with respect to the calculations referred to in the
foregoing clause (z).
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Supplemental
Indenture No. 2 may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but
all such counterparts shall together constitute but one and the
same instrument.
(b) Execution as Supplemental Indenture. This
Supplemental Indenture No. 2 is executed and shall be construed
as an indenture supplemental to the Indenture and, as provided in
the Indenture, this Supplemental Indenture No. 2 shall form a
part thereof. On and after the delivery of this Supplemental
Indenture No. 2, any reference in any Transaction Document to the
Indenture shall be deemed to refer to the Indenture as
supplemented and amended by this Supplemental Indenture No. 2.
(c) Responsibility for Recitals, Etc. The Indenture
Trustee makes no representation or warranty as to the correctness
of any statement, recital or representation made by any Person
other than the Indenture Trustee in this Supplemental Indenture
No. 2, any other Transaction Document or the Refunding Notes or,
except with respect to the due authentication by the Indenture
Trustee of the Refunding Notes, as to the validity or sufficiency
of this Supplemental Indenture No. 2 or the Refunding Notes.
(d) Provisions Binding on Successors. All the
covenants, stipulations, promises and agreements in this
Supplemental Indenture No. 2 contained by or on behalf of the
Owner Trustee shall bind its successors and assigns, whether so
expressed or not.
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee and the Indenture
Trustee have each caused this Supplemental Indenture No. 2 to be
duly executed by their respective officers thereunto duly
authorized, all as of the date set forth above.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee
By:
Title: Vice President
STEPHEN J. KABA, not in his individual
capacity, but solely as Individual Owner
Trustee
BANKERS TRUST COMPANY,
ATTEST: not in its individual capacity, but
solely as Corporate Indenture Trustee
By:
Title: Vice President
STANLEY BURG,
not in his individual capacity, but
solely as Individual Indenture Trustee
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this __ day of
______, 19__, within my jurisdiction, the within named STEPHEN J.
KABA who acknowledged that he is a Vice President of MERIDIAN
TRUST COMPANY, a Pennsylvania trust company, Corporate Owner
Trustee under that certain Trust Agreement No. 2, dated as of
December 1, 1988 among Lease Management Realty Corporation IV, as
Original Owner Participant, MERIDIAN TRUST COMPANY, as Corporate
Owner Trustee, and STEPHEN J. KABA as successor Individual Owner
Trustee to the original Individual Owner Trustee, Stephen M.
Carta, and that for and on behalf of the said trust company, and
as its act and deed in said capacity as Corporate Owner Trustee
and its having been duly authorized so to do, he executed the
above and foregoing instrument after first having been duly
authorized by said trust company so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _______, 19__ within my jurisdiction, the within named STEPHEN
J. KABA who acknowledged that he is successor Individual Owner
Trustee under that certain Trust Agreement No. 2, dated as of
December 1, 1988 among Lease Management Realty Corporation IV, as
Original Owner Participant, MERIDIAN TRUST COMPANY, as Corporate
Owner Trustee, and STEPHEN J. KABA as successor Individual Owner
Trustee to the original Individual Owner Trustee, Stephen M.
Carta, and that in his capacity as Individual Owner Trustee he
executed the above and foregoing instrument after first having
been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ___ day
of ________, 19_, within my jurisdiction, the within named
___________________, who acknowledged that he is a Vice President
of BANKERS TRUST COMPANY, a New York banking corporation and that
for and on behalf of said corporation, and as its act and deed,
he executed the above and foregoing instrument, after first
having been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _______, 19__, within my jurisdiction, the within named
________________, who acknowledged that he is a Vice President of
BANKERS TRUST COMPANY, a New York banking corporation, Corporate
Indenture Trustee under the Indenture, and that for and on behalf
of the said corporation, and as its act and deed in said capacity
as Corporate Indenture Trustee and its having been duly
authorized so to do, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this __ day of
________, 19__, within my jurisdiction, the within named STANLEY
BURG, who acknowledged that he executed the above and foregoing
instrument.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ___ day
of ___________, 19__, within my jurisdiction, the within named
STANLEY BURG, who acknowledged that he is Individual Indenture
Trustee under the Indenture, and that in his capacity as
Individual Indenture Trustee, he executed the above and foregoing
instrument, after first having been duly authorized so to do.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
EXHIBIT A-1 TO
SUPPLEMENTAL
INDENTURE NO. 2
FORM OF PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2011
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED
FOR SALE IN VIOLATION OF SUCH ACT
PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2011
(DUE JANUARY 15, 2011)
Issue Date: January 18, 1994
No. R-2A
FOR VALUE RECEIVED, MERIDIAN TRUST COMPANY and STEPHEN
J. KABA not in their individual capacities, but solely as Owner
Trustee (collectively, the "Owner Trustee") under Trust Agreement
No. 2, dated as of December 1, 1988, with Textron Financial
Corporation (the "Owner Participant" as successor in interest to
Lease Management Realty Corporation IV), hereby promise to pay to
Bankers Trust Company, not in its individual capacity, but solely
as Trustee under the Collateral Trust Indenture, dated as of
January 1, 1994, among GG1B Funding Corporation, System Energy
Resources, Inc. and Bankers Trust Company, as such Collateral
Trust Indenture may be supplemented or amended from time to time,
or registered assigns, the principal sum of SIXTY-EIGHT MILLION
SIX HUNDRED SIXTY-NINE THOUSAND DOLLARS ($68,669,000.00), such
payment to be made in the amounts and on the dates specified in
Schedule 1 hereto, as such Schedule 1 may be revised in
accordance herewith (the dates and amounts set forth in Schedule
I being herein called, respectively, "Amortization Dates" and
"Amortization Requirements"); and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the
aggregate amount of such principal sum remaining unpaid from time
to time from the date of issuance of this Fixed Rate Note until
due and payable, semiannually in arrears on January 15 and July
15 in each year, commencing July 15, 1994, at the rate of 7.43%
per annum, until the principal amount hereof is paid in full.
Capitalized terms used in this Fixed Rate Note which
are not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Trust Indenture, Deed of Trust, Mortgage, Security Agreement and
Assignment of Facility Lease No. 2, dated as of December 1, 1988,
as at any time heretofore or hereafter amended or supplemented in
accordance with the provisions thereof (the "Indenture"), between
the Owner Trustee and Bankers Trust Company and Stanley Burg, not
in their individual capacities, but solely as Corporate and
Individual Indenture Trustee, respectively (the "Indenture
Trustee"), shall be made only from the Lease Indenture Estate and
the Trust Estate and the Indenture Trustee shall have no
obligation for the payment thereof except to the extent that the
Indenture Trustee shall have sufficient income or proceeds from
the Lease Indenture Estate to make such payments in accordance
with the terms of Article V of the Indenture. The Holder hereof,
by its acceptance of this Fixed Rate Note, shall be deemed to
have agreed that such Holder will look solely to the Trust Estate
and the income and proceeds from the Lease Indenture Estate to
the extent available for distribution to the Holder hereof as
above provided, and that neither the Owner Participant nor,
except as expressly provided in the Indenture, the Owner Trustee
nor the Indenture Trustee is or shall be personally liable to the
Holder hereof for any amounts payable under this Fixed Rate Note
or for any performance to be rendered under the Indenture or any
Transaction Document or for any liability thereunder; provided,
however, that in the event that the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, or shall
be deemed to have assumed such obligations pursuant to Section
7(b)(4)(H) of the Participation Agreement, then all the payments
to be made on this Fixed Rate Note shall be made only from
payments made by the Lessee under this Fixed Rate Note in
accordance with the Assumption Agreement referred to in said
Section 3.9(b) of the Indenture and the Holder of this Fixed Rate
Note agrees that in such event it will look solely to the Lessee
for such payment and, subject to Section 2.4 of the Indenture, to
the Lease Indenture Estate.
Principal, premium, if any, and interest shall be
payable in immediately available funds in such coin or currency
of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, in
the manner provided in the Indenture, on presentment of this
Fixed Rate Note at the Indenture Trustee's Office, or as
otherwise provided in the Indenture.
In the manner and to the extent provided in the
Indenture, Schedule 1 hereto may be adjusted at the discretion of
the Owner Trustee in connection with an adjustment to Basic Rent
under Section 3(d) or 3(e)(v)(C) of the Facility Lease.
In the event of a partial prepayment of this Fixed Rate
Note (the payment of principal in accordance with Schedule 1
hereto not being considered for this purpose a prepayment), the
Amortization Requirement for each Amortization Date thereafter
shall be deemed to have been satisfied to the extent of an amount
equal to the quotient resulting from the division of (A) the
product of (w) the principal amount of such prepayment
(hereinafter called the "Prepaid Amount") and (x) such
Amortization Requirement by (B) the sum of (y) the principal
amount of this Fixed Rate Note then Outstanding (after giving
effect to such prepayment) and (z) the Prepaid Amount; provided,
however, that the remaining Amortization Requirements determined
as set forth in this paragraph shall be rounded to the nearest
integral multiple of $l.00, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to the
Prepaid Amount, such adjustment to such Amortization Requirements
to be made in the inverse order of the respective Amortization
Dates corresponding thereto. In connection with such adjustments
to Schedule 1 the Owner Trustee shall deliver to the Indenture
Trustee, not later than 30 days prior to the next date on which a
payment of principal of this Fixed Rate Note is due following
such partial prepayment, a revised Schedule 1 hereto prepared by
the Lessee and approved by the Owner Participant. The Indenture
Trustee may rely on such revised Schedule 1 and shall have no
duty with respect to the adjustments set forth therein other than
to make it available for inspection by the Holder of this Fixed
Rate Note.
The Holder hereof, by its acceptance of this Fixed Rate
Note, agrees that each payment received by it hereunder shall be
applied in the manner set forth in Section 3.11 of the Indenture.
The Holder of this Fixed Rate Note agrees, by its acceptance
hereof, that it will duly note by appropriate means all payments
of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note
unless and until all such notations have been duly made and the
other requirements of the Indenture have been complied with.
This Fixed Rate Note is one of the Fixed Rate Notes
referred to in the Indenture. The Indenture permits the issuance
of additional series of Notes, as provided in Section 3.5 of the
Indenture, and the several series may be for varying aggregate
principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are
pledged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and
premium, if any, and interest on this Fixed Rate Note and all
other Notes issued and outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a
statement of the rights of the Holders of, and the nature and
extent of the security for, this Fixed Rate Note and of the
rights of, and the nature and extent of the security for, the
Holders of the other Notes and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Fixed Rate Note.
This Fixed Rate Note is subject to purchase by the
Owner Trustee as provided in Section 6.8(b) of the Indenture.
This Fixed Rate Note is also subject to prepayment in full, at
the principal amount hereof plus accrued interest to the date
fixed for prepayment, in the event of the termination of the
Lease pursuant to Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the Participation Agreement, subject,
however, except in the case of a termination pursuant to Section
14 of the Lease, to the right of the Lessee to assume this Fixed
Rate Note on the Lease Termination Date, in which event there
shall be no redemption of this Fixed Rate Note as a consequence
of such termination.
In addition, this Fixed Rate Note may be prepaid in
whole or in part at any time on or after January 15, 2004 at the
following prepayment prices (expressed as a percentage of the
principal amount hereof being prepaid), together with interest
accrued to the date fixed for prepayment:
If Prepaid in the
12 Month Period Prepayment
Beginning January 15 Price
2004 102.477%
2005 101.981
2006 101.486
2007 100.991
2008 100.495
and thereafter at the principal amount thereof, together with
interest accrued to the date fixed for prepayment.
In the case an Indenture Event of Default shall occur
and be continuing, the unpaid balance of the principal of this
Fixed Rate Note and any other Notes, together with all accrued
but unpaid interest thereon, may, subject to certain rights of
the Owner Trustee and the Owner Participant contained or referred
to in the Indenture, be declared or may become due and payable in
the manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Fixed Rate
Note, and the lien of the Indenture or the Lease Indenture
Estate, is subject to being legally discharged prior to the
maturity of this Fixed Rate Note upon the deposit with the
Indenture Trustee of cash or certain securities sufficient to pay
this Fixed Rate Note when due in accordance with the terms of the
Indenture.
There shall be maintained at the Indenture Trustee's
Office a register for the purpose of registering transfers and
exchanges of Notes in the manner provided in the Indenture. The
transfer of this Fixed Rate Note is registrable, as provided in
the Indenture, upon surrender of this Fixed Rate Note for
registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered
Holder hereof, together with the amount of any applicable
transfer taxes. The Owner Trustee and the Indenture Trustee may
treat the person in whose name this Fixed Rate Note is registered
as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate
Note and for all other purposes whatsoever, whether or not this
Fixed Rate Note be overdue, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Fixed Rate Note shall be governed by, and
construed in accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the Corporate Owner Trustee has
caused this Fixed Rate Note to be duly executed as of the date
hereof.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the
Trust Agreement
By:
Title:
This Fixed Rate Note is one of the series of Notes
referred to therein and in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Indenture Trustee
By:
Title:
<PAGE>
SCHEDULE 1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Principal
Date Amount Payable
July 15, 1995 $ 797,710
July 15, 1996 2,030,542
July 15, 1997 2,181,412
January 15, 1998 0
July 15, 1998 2,343,491
January 15, 1999 0
July 15, 1999 2,517,612
January 15, 2000 142,986
July 15, 2000 2,153,434
January 15, 2001 2,986,233
January 15, 2002 3,216,671
January 15, 2003 4,455,486
January 15, 2004 5,789,896
January 15, 2005 4,820,248
January 15, 2006 5,453,104
January 15, 2007 4,947,362
January 15, 2008 7,411,216
January 15, 2009 7,980,341
January 15, 2010 8,598,932
January 15, 2011 842,324
<PAGE>
EXHIBIT A-2 TO
SUPPLEMENTAL
INDENTURE NO. 2
FORM OF PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2013
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED
FOR SALE IN VIOLATION OF SUCH ACT
PROMISSORY NOTE, FIXED RATE REFUNDING SERIES DUE 2013
(DUE JANUARY 15, 2013)
Issue Date: January 18, 1994
No. R-2B
FOR VALUE RECEIVED, MERIDIAN TRUST COMPANY and STEPHEN
J. KABA not in their individual capacities, but solely as Owner
Trustee (collectively, the "Owner Trustee") under Trust Agreement
No. 2, dated as of December 1, 1988, with Textron Financial
Corporation (the "Owner Participant" as successor in interest to
Lease Management Realty Corporation IV), hereby promise to pay to
Bankers Trust Company, not in its individual capacity, but solely
as Trustee under the Collateral Trust Indenture, dated as of
January 1, 1994, among GG1B Funding Corporation, System Energy
Resources, Inc. and Bankers Trust Company, as such Collateral
Trust Indenture may be supplemented or amended from time to time,
or registered assigns, the principal sum of EIGHTEEN MILLION FOUR
HUNDRED TWENTY-FOUR THOUSAND DOLLARS ($18,424,000.00), such
payment to be made in the amounts and on the dates specified in
Schedule 1 hereto, as such Schedule 1 may be revised in
accordance herewith (the dates and amounts set forth in Schedule
I being herein called, respectively, "Amortization Dates" and
"Amortization Requirements"); and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the
aggregate amount of such principal sum remaining unpaid from time
to time from the date of issuance of this Fixed Rate Note until
due and payable, semiannually in arrears on January 15 and July
15 in each year, commencing July 15, 1994, at the rate of 8.20%
per annum, until the principal amount hereof is paid in full.
Capitalized terms used in this Fixed Rate Note which
are not otherwise defined herein shall have the meanings ascribed
thereto in the Indenture (as hereinafter defined).
In the event that any payment to be made hereunder is
stated to be due on a day that is not a Business Day, then such
payment shall be due and payable on the next succeeding Business
Day with the same force and effect as if made on the date on
which such payment was stated to be due and no interest in
respect of such payment shall accrue for the period from and
after such stated due date.
All payments of principal, premium, if any, and
interest to be made by the Owner Trustee hereon and under the
Trust Indenture, Deed of Trust, Mortgage, Security Agreement and
Assignment of Facility Lease No. 2, dated as of December 1, 1988,
as at any time heretofore or hereafter amended or supplemented in
accordance with the provisions thereof (the "Indenture"), between
the Owner Trustee and Bankers Trust Company and Stanley Burg, not
in their individual capacities but solely as Corporate and
Individual Indenture Trustee, respectively (the "Indenture
Trustee"), shall be made only from the Lease Indenture Estate and
the Trust Estate and the Indenture Trustee shall have no
obligation for the payment thereof except to the extent that the
Indenture Trustee shall have sufficient income or proceeds from
the Lease Indenture Estate to make such payments in accordance
with the terms of Article V of the Indenture. The Holder hereof,
by its acceptance of this Fixed Rate Note, shall be deemed to
have agreed that such Holder will look solely to the Trust Estate
and the income and proceeds from the Lease Indenture Estate to
the extent available for distribution to the Holder hereof as
above provided, and that neither the Owner Participant nor,
except as expressly provided in the Indenture, the Owner Trustee
nor the Indenture Trustee is or shall be personally liable to the
Holder hereof for any amounts payable under this Fixed Rate Note
or for any performance to be rendered under the Indenture or any
Transaction Document or for any liability thereunder; provided,
however, that in the event that the Lessee shall assume all the
obligations of the Owner Trustee hereunder and under the
Indenture pursuant to Section 3.9(b) of the Indenture, or shall
be deemed to have assumed such obligations pursuant to Section
7(b)(4)(H) of the Participation Agreement, then all the payments
to be made on this Fixed Rate Note shall be made only from
payments made by the Lessee under this Fixed Rate Note in
accordance with the Assumption Agreement referred to in said
Section 3.9(b) of the Indenture and the Holder of this Fixed Rate
Note agrees that in such event it will look solely to the Lessee
for such payment and, subject to Section 2.4 of the Indenture, to
the Lease Indenture Estate.
Principal, premium, if any, and interest shall be
payable in immediately available funds in such coin or currency
of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, in
the manner provided in the Indenture, on presentment of this
Fixed Rate Note at the Indenture Trustee's Office, or as
otherwise provided in the Indenture.
In the manner and to the extent provided in the
Indenture, Schedule 1 hereto may be adjusted at the discretion of
the Owner Trustee in connection with an adjustment to Basic Rent
under Section 3(d) or 3(e)(v)(C) of the Facility Lease.
In the event of a partial prepayment of this Fixed Rate
Note (the payment of principal in accordance with Schedule 1
hereto not being considered for this purpose a prepayment), the
Amortization Requirement for each Amortization Date thereafter
shall be deemed to have been satisfied to the extent of an amount
equal to the quotient resulting from the division of (A) the
product of (w) the principal amount of such prepayment
(hereinafter called the "Prepaid Amount") and (x) such
Amortization Requirement by (B) the sum of (y) the principal
amount of this Fixed Rate Note then Outstanding (after giving
effect to such prepayment) and (z) the Prepaid Amount; provided,
however, that the remaining Amortization Requirements determined
as set forth in this paragraph shall be rounded to the nearest
integral multiple of $1.00, subject to further necessary
adjustment so that the aggregate principal amount of such
satisfaction of Amortization Requirements shall be equal to the
Prepaid Amount, such adjustment to such Amortization Requirements
to be made in the inverse order of the respective Amortization
Dates corresponding thereto. In connection with such adjustments
to Schedule 1 the Owner Trustee shall deliver to the Indenture
Trustee, not later than 30 days prior to the next date on which a
payment of principal of this Fixed Rate Note is due following
such partial prepayment, a revised Schedule 1 hereto prepared by
the Lessee and approved by the Owner Participant. The Indenture
Trustee may rely on such revised Schedule 1 and shall have no
duty with respect to the adjustments set forth therein other than
to make it available for inspection by the Holder of this Fixed
Rate Note.
The Holder hereof, by its acceptance of this Fixed Rate
Note, agrees that each payment received by it hereunder shall be
applied in the manner set forth in Section 3.11 of the Indenture.
The Holder of this Fixed Rate Note agrees, by its acceptance
hereof, that it will duly note by appropriate means all payments
of principal or interest made hereon and that it will not in any
event transfer or otherwise dispose of this Fixed Rate Note
unless and until all such notations have been duly made and the
other requirements of the Indenture have been complied with.
This Fixed Rate Note is one of the Fixed Rate Notes
referred to in the Indenture. The Indenture permits the issuance
of additional series of Notes, as provided in Section 3.5 of the
Indenture, and the several series may be for varying aggregate
principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms. The properties of
the Owner Trustee included in the Lease Indenture Estate are
pledged to the Indenture Trustee to the extent provided in the
Indenture as security for the payment of the principal of and
premium, if any, and interest on this Fixed Rate Note and all
other Notes issued and outstanding from time to time under the
Indenture. Reference is hereby made to the Indenture for a
statement of the rights of the Holders of, and the nature and
extent of the security for, this Fixed Rate Note and of the
rights of, and the nature and extent of the security for, the
Holders of the other Notes and of certain rights of the Owner
Trustee, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and
conditions the Holder hereof agrees by its acceptance of this
Fixed Rate Note.
This Fixed Rate Note is subject to purchase by the
Owner Trustee as provided in Section 6.8(b) of the Indenture.
This Fixed Rate Note is also subject to prepayment in full, at
the principal amount hereof plus accrued interest to the date
fixed for prepayment, in the event of the termination of the
Lease pursuant to Section 13(f) or (g) or Section 14 thereof, or
Section 10(b)(3)(ix) of the Participation Agreement, subject,
however, except in the case of a termination pursuant to Section
14 of the Lease, to the right of the Lessee to assume this Fixed
Rate Note on the Lease Termination Date, in which event there
shall be no redemption of this Fixed Rate Note as a consequence
of such termination.
In addition, this Fixed Rate Note may be prepaid in
whole or in part at any time on or after January 15, 2004 at the
following prepayment prices (expressed as a percentage of the
principal amount hereof being prepaid), together with interest
accrued to the date fixed for prepayment:
If Prepaid in the
12 Month Period Prepayment
Beginning January 15 Price
2004 104.100%
2005 103.690
2006 103.280
2007 102.870
2008 102.460
2009 102.050
2010 101.640
2011 101.230
2012 100.820
In the case an Indenture Event of Default shall occur
and be continuing, the unpaid balance of the principal of this
Fixed Rate Note and any other Notes, together with all accrued
but unpaid interest thereon, may, subject to certain rights of
the Owner Trustee and the Owner Participant contained or referred
to in the Indenture, be declared or may become due and payable in
the manner and with the effect provided in the Indenture.
The obligation of the Owner Trustee to pay the
principal of and premium, if any, and interest on this Fixed Rate
Note, and the lien of the Indenture or the Lease Indenture
Estate, is subject to being legally discharged prior to the
maturity of this Fixed Rate Note upon the deposit with the
Indenture Trustee of cash or certain securities sufficient to pay
this Fixed Rate Note when due in accordance with the terms of the
Indenture.
There shall be maintained at the Indenture Trustee's
Office a register for the purpose of registering transfers and
exchanges of Notes in the manner provided in the Indenture. The
transfer of this Fixed Rate Note is registrable, as provided in
the Indenture, upon surrender of this Fixed Rate Note for
registration of transfer duly accompanied by a written instrument
of transfer duly executed by or on behalf of the registered
Holder hereof, together with the amount of any applicable
transfer taxes. The Owner Trustee and the Indenture Trustee may
treat the person in whose name this Fixed Rate Note is registered
as the owner hereof for the purpose of receiving payments of
principal of and premium, if any, and interest on this Fixed Rate
Note and for all other purposes whatsoever, whether or not this
Fixed Rate Note be overdue, and neither the Owner Trustee nor the
Indenture Trustee shall be affected by notice to the contrary.
This Fixed Rate Note shall be governed by, and
construed in accordance with, the law of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the Corporate Owner Trustee has
caused this Fixed Rate Note to be duly executed as of the date
hereof.
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the Trust
Agreement
By:
Title:
This Fixed Rate Note is one of the series of Notes
referred to therein and in the within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Indenture Trustee
By:
Title:
<PAGE>
SCHEDULE 1
SCHEDULE OF PRINCIPAL AMORTIZATION
Payment Principal
Date Amount Payable
January 15, 2012 $ 8,345,484
January 15, 2013 10,078,516
Exhibit B-9(a)
________________________________________________________
$435,102,000
SYSTEM ENERGY RESOURCES, INC.
GG1B Funding Corporation
UNDERWRITING AGREEMENT
Secured Lease Obligation Bonds
________________________________________________________
<PAGE>
January 11, 1994
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
Each of the undersigned, System Energy Resources, Inc.
(the "Company") and GG1B Funding Corporation (the "Funding
Corporation"), hereby confirms its agreement with you, as
underwriters (the "Underwriters", which term, when the context
permits, shall also include any underwriters substituted as
hereinafter in Section 12 provided), as follows:
SECTION 1. Introduction. The Funding Corporation
proposes to issue and sell $356,056,000 in aggregate principal
amount of its Secured Lease Obligation Bonds 7.43% Series due
January 15, 2011 (the "Short Bonds") and $79,046,000 in aggregate
principal amount of its Secured Lease Obligation Bonds 8.20%
Series due January 15, 2014 (the "Long Bonds") (collectively, the
"Bonds"; each of the Short Bonds and the Long Bonds sometimes
being referred to herein as a "series" of Bonds) registered under
the registration statement referred to in Section 4(a)(ii). The
Bonds will be issued under a Collateral Trust Indenture dated as
of January 1, 1994, as supplemented by Supplemental Indenture No.
1 thereto dated as of January 1, 1994, among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee") (such Collateral Trust Indenture, as so
supplemented, the "Trust Indenture").
SECTION 2. Purchase and Sale. On the basis of the
representations and warranties, and subject to the terms and
conditions set forth in this agreement (the "Underwriting
Agreement"), the Underwriters shall purchase from the Funding
Corporation, severally and not jointly, and the Funding
Corporation shall issue and sell to each of the Underwriters, the
following principal amounts of the Bonds at the price (equal to
the percentage of the principal amount thereof) indicated below,
plus accrued interest thereon (if any) from the date of issuance
to the date of payment for and delivery of the Bonds:
Short Bonds
Price: 100%
Name Principal Amount
Morgan Stanley & Co. Incorporated $118,686,000
Bear, Stearns & Co. Inc. 118,685,000
Goldman, Sachs & Co. 118,685,000
$356,056,000
Long Bonds
Price: 100%
Name Principal Amount
Morgan Stanley & Co. Incorporated $26,349,000
Bear, Stearns & Co. Inc. 26,349,000
Goldman, Sachs & Co. 26,348,000
$79,046,000
It is understood that the Underwriters will offer the
Bonds for sale as set forth in the Prospectus (as hereinafter
defined). Neither series of the Bonds shall be purchased
hereunder unless both series are purchased.
Concurrently with such purchase, issuance and sale, the
Company will pay, or cause to be paid, to the Underwriters in
same day funds an underwriting commission of .750% of the
principal amount thereof ($2,670,420) in respect of the Short
Bonds and an underwriting commission of .875% of the principal
amount thereof ($691,652) in respect of the Long Bonds.
SECTION 3. Description of Bonds. The Bonds and the
Trust Indenture shall have the terms and provisions described in
the Prospectus, provided that, subsequent to the date hereof and
prior to the Closing Date, the form of Trust Indenture (including
Supplemental Indenture No. 1 thereto) may be amended by mutual
agreement among the Funding Corporation, the Company and the
Underwriters.
SECTION 4. Representations and Warranties of the
Company and the Funding Corporation. (a) The Company represents
and warrants to each of the Underwriters that:
(i) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Arkansas and has the necessary corporate power and
authority to conduct the business which it is described in
the Prospectus as conducting and to own and operate the
properties owned and operated by it in such business.
(ii) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-51175) for the
registration of $435,102,000 principal amount of the Funding
Corporation's Secured Lease Obligation Bonds under the
Securities Act of 1933, as amended (the "Securities Act"),
and the registration statement has become effective. The
prospectus forming a part of the registration statement, at
the time such registration statement became effective,
including all documents incorporated by reference therein at
that time pursuant to Item 12 of Form S-3, is hereinafter
referred to as the "Basic Prospectus". In the event that
the Basic Prospectus shall have been amended, revised or
supplemented prior to the time of effectiveness of the
Underwriting Agreement, and with respect to any documents
filed by the Company pursuant to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), after the time the registration statement initially
became effective and up to the time of effectiveness of the
Underwriting Agreement, which documents are deemed to be
incorporated by reference in the Basic Prospectus, the term
"Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented. The
registration statement as it initially became effective and
as it may have been amended by any amendment thereto
included in the Basic Prospectus (including for these
purposes as an amendment any document incorporated by
reference in the Basic Prospectus) and the Basic Prospectus
as it shall be supplemented to reflect the terms of offering
and sale of the Bonds by a prospectus supplement
("Prospectus Supplement") to be filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424"), are hereinafter referred to as
the "Registration Statement" and the "Prospectus,"
respectively. After the time of effectiveness of the
Underwriting Agreement and during the time specified in
Section 7(d), the Company will not file (i) any amendment to
the Registration Statement or supplement to the Prospectus
or (ii) prior to the time that the Prospectus is filed with,
or transmitted for filing to, the Commission pursuant to
Rule 424, any document which is to be incorporated by
reference in, or any supplement to (including the Prospectus
Supplement), the Basic Prospectus, in either case, without
prior notice to the Underwriters and to Winthrop, Stimson,
Putnam & Roberts ("Counsel for the Underwriters"), or any
such amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of the Underwriting Agreement, any document which is filed
with the Commission after the time of effectiveness of the
Underwriting Agreement and is incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(iii) The Registration Statement, at the time of its
effectiveness, fully complied, and the Prospectus, at the
time it is first filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 and at the Closing Date
(hereinafter defined) as it may then be amended or
supplemented, will fully comply, in all material respects
with the applicable provisions of the Securities Act and the
Trust Indenture Act of 1939, as amended (the "TIA"), and the
applicable rules and regulations of the Commission
thereunder or pursuant to said rules and regulations are or
will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, on the date first filed with the Commission
pursuant to the Exchange Act, fully complied or will fully
comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder or pursuant to said rules and
regulations are or will be deemed to comply therewith. On
the later of (i) the date that the Registration Statement or
any post-effective amendment thereto was or is declared
effective by the Commission under the Securities Act and
(ii) the date that the Company's most recent Annual Report
on Form 10-K was filed with the Commission under the
Exchange Act, the Registration Statement did not or will
not, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading. At the time the Prospectus is filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date (hereinafter defined),
the Prospectus, as it may be amended or supplemented, will
not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. On said dates and at
such times, the documents then incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 when read
together with the Prospectus, or the Prospectus as it may
then be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this subsection (iii)
shall not apply to statements in or omissions from the
Registration Statement or the Prospectus, as they may be
amended or supplemented, made in reliance upon and in
conformity with information furnished herein or in writing
to the Company by or through any Underwriter specifically
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement thereto or to statements in, or omissions from,
the statements of eligibility, as they may be amended, under
the TIA of the Trustee and of Stanley Burg.
(iv) Each of (A) the Participation Agreements and the
Leases (as defined in the Prospectus), (B) the Purchase
Documents, the Plant Agreements, the Ground Leases and the
Assignment and Assumption Agreements (as defined in the
Participation Agreements), (C) the Trust Indenture, and
(D) the Refunding Agreements Nos. 1-A and 2-A, dated as of
January 1, 1994, among the Funding Corporation, the Company,
the Owner Participant named therein, Meridian Trust Company,
Stephen J. Kaba, Bankers Trust Company and Stanley Burg (the
"Refunding Agreements") (the documents described in clauses
(A) through (D) above, as they each may be amended or
supplemented as of the Closing Date, being collectively
referred to herein as the "Transaction Documents") has been
or, as of the Closing Date, will be duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by each other
party thereto, constitutes a legal, valid and binding
obligation of the Company, enforceable against it in
accordance with its terms, except as limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws affecting creditors'
rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and subject to any principles of public
policy limiting the right to enforce the indemnification
provisions contained herein.
(v) The issuance and sale of the Bonds and the
fulfillment of the terms of the Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Trust Indenture or any
other indenture, mortgage, deed of trust or other agreement
or instrument to which the Company is now a party.
(vi) Except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, the
Company has obtained all material licenses, permits, and
other governmental or regulatory authorizations currently
required for the conduct of its business (including, without
limitation, the performance of its current obligations under
the Transaction Documents), and is in all material respects
complying therewith, and the Company is not aware of any
fact that would lead it to believe that any material
license, permit or other governmental or regulatory
authorization would not remain in effect or be renewed in
its ordinary course of business.
(vii) It is not necessary for the Funding Corporation to
register as an investment company pursuant to the Investment
Company Act of 1940 in order to participate in the
transactions contemplated by the Prospectus.
(b) The Funding Corporation represents and warrants to
each of the Underwriters that each of the Participation
Agreements, the Refunding Agreements, the Trust Indenture and the
Bonds has been or, as of the Closing Date (hereinafter defined),
will be duly authorized, executed and delivered by the Funding
Corporation and, assuming the due authorization, execution,
authentication and delivery thereof by each other party thereto,
constitutes a legal, valid and binding obligation of the Funding
Corporation enforceable against it in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws
affecting creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and subject to any principles of
public policy limiting the right to enforce the indemnification
provisions contained herein.
SECTION 5. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds of each series as soon after the
Underwriting Agreement has become effective as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Bonds are to be offered to the public at the respective
public offering prices set forth below (expressed as percentages
of the principal amount of the Bonds) plus accrued interest from
January 18, 1994 to the date of delivery. The Bonds may also be
offered to certain dealers selected by the Underwriters at prices
which represent concessions under the public offering prices, and
any Underwriter may allow, and such dealers may reallow,
concessions not in excess of the principal amount of the Bonds to
certain other dealers, all as indicated below (expressed as
percentages of the principal amount of the Bonds):
Public Offering
Price Concession Reallowance
Short Bonds 100% .45% .25%
Long Bonds 100% .50% .25%
SECTION 6. Time and Place of Closing. Delivery of
the Bonds and payment therefor by wire transfer or check or
checks payable to the Funding Corporation in same day funds shall
be made at the offices of Reid & Priest, 40 West 57th Street, New
York, New York, at 10:00 A.M., New York time, on January 18,
1994, or at such other time on the same or such other day as
shall be agreed upon by the Company and Morgan Stanley & Co.
Incorporated. The hour and date of such delivery and payment are
herein called the "Closing Date."
The Bonds shall be delivered to you in such authorized
denominations and registered in such names as Morgan Stanley &
Co. Incorporated may request in writing by the close of business
at least three business days prior to the Closing Date or, to the
extent not so requested, in the names of the Underwriters in such
denominations as the Company shall determine. The Company agrees
to make the Bonds available to the Underwriters for checking not
later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
between Morgan Stanley & Co. Incorporated and the Company, or at
such other time and/or date as may be agreed upon between Morgan
Stanley & Co. Incorporated and the Company.
SECTION 7. Covenants of the Funding Corporation and
the Company. Each of the Funding Corporation and the Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration
Statement relating to the Bonds as originally filed
including the related prospectus and of all amendments or
supplements thereto, certified by an officer of the Company
to be in the form filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriters may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to Rule 424(b) within the time period required by Section
8(a) hereof. The Company or the Funding Corporation will
advise the Underwriters promptly of the issuance of any stop
order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Funding Corporation or the Company
shall have received notice. Each of the Funding Corporation
and the Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus relating to the
Bonds, if any event relating to or affecting the Company or
the Funding Corporation, or of which the Company shall be
advised by you in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser of the Bonds, the Company will
amend or supplement, or cause to be amended or supplemented,
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus, or (ii) making an
appropriate filing pursuant to Section 13 or 14 of the
Exchange Act, which will supplement or amend the Prospectus,
so that, as supplemented or amended, it will not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading; provided that, unless such event
relates solely to the activities of the Underwriters (in
which case the Underwriters shall assume the expense of
preparing any such amendment or supplement), the expenses of
complying with this Section 7(d) shall be borne by the
Company until the expiration of nine months from the initial
effective date of the Registration Statement and such
expenses shall be borne by the Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof,
the Company and the Funding Corporation will furnish such
proper information as may be lawfully required and otherwise
cooperate in qualifying the Bonds for offer and sale under
the "blue-sky" laws of such jurisdictions as the
Underwriters may reasonably designate, provided, that
neither the Funding Corporation nor the Company shall be
required to qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under
the laws of any jurisdiction, or to meet any other
requirements deemed by it to be unduly burdensome.
(g) The Company will, except as herein provided, pay
or cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the Registration Statement, (ii) the printing, issuance and
delivery of the Bonds and the preparation, execution,
printing and recordation of the Trust Indenture, (iii) legal
fees and expenses relating to the qualification of the Bonds
under the "blue-sky" laws of various jurisdictions and the
determination of the eligibility of the Bonds for investment
under the laws of various jurisdictions in an amount not to
exceed $20,000, (iv) the printing and delivery to the
Underwriters of reasonable quantities of copies of the
Registration Statement, the Basic Prospectus, the
Preliminary Blue Sky Survey, any Preliminary Legality
Memorandum and the Prospectus and any amendment or
supplement thereto, except as otherwise provided in
paragraph (d) of this Section, (v) fees of the rating
agencies in connection with the ratings of the Bonds,
(vi) fees (if any) of the National Association of Securities
Dealers, Inc. ("NASD") in connection with its review of the
terms of the offering and (vii) the procurement by the
Underwriters of same day funds for the payment of the
purchase price for the Bonds as required by Section 6 of
this Underwriting Agreement. Except as provided above, the
Company shall not be required to pay any amount for any
expenses of the Underwriters, except that, if this
Underwriting Agreement shall be terminated in accordance
with the provisions of Section 8, 9 or 13, the Company will
reimburse the Underwriters for (i) reasonable fees and
expenses of Counsel for the Underwriters, whose fees and
expenses the Underwriters agree to pay in any other event,
and (ii) reasonable out-of-pocket expenses, in an amount not
exceeding in the aggregate $15,000, incurred in
contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
the Underwriters for damages on account of loss of
anticipated profits.
SECTION 8. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made
herein on the part of the Funding Corporation and the Company and
to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 p.m., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be
pending before, or, to the knowledge of the Funding
Corporation, the Company or the Underwriters, threatened by,
the Commission on the Closing Date; and the Underwriters
shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President or the
Treasurer of each of the Funding Corporation and the Company
to the effect that no such stop order has been or is in
effect and that no proceedings for such purpose are pending
before, or, to the knowledge of the Funding Corporation or
the Company, respectively, threatened by, the Commission.
(c) At the Closing Date there shall be in full force
and effect an order or orders of the Commission under the
Public Utility Holding Company Act of 1935, as amended
(the "Holding Company Act"), authorizing the issuance
and sale of the Bonds on the terms set forth in or
contemplated by this Underwriting Agreement, the Trust
Indenture and the Prospectus.
(d) At the Closing Date, the Underwriters shall have
received from Wise Carter Child & Caraway, Professional
Association; Reid & Priest; and Friday, Eldredge & Clark, as
counsel to the Company; and Reid & Priest, as counsel to the
Funding Corporation, opinions, dated the Closing Date,
substantially in the forms set forth in Exhibits A, B, C and
D hereto, respectively, (i) with such changes therein as may
be agreed upon by the Company and the Underwriters with the
approval of Counsel for the Underwriters, and (ii) if the
Prospectus shall be supplemented after being furnished to
the Underwriters for use in offering the Bonds, with changes
therein to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters an opinion, dated
the Closing Date, substantially in the form set forth in
Exhibit E hereto, with such changes therein as may be
necessary to reflect any supplementation of the Prospectus
prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received
from Deloitte & Touche a letter dated the date hereof and
addressed to the Underwriters to the effect that (i) they
are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii)
in their opinion, the financial statements and financial
statement schedules audited by them and included or
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder;
(iii) on the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the latest
unaudited financial statements included or incorporated by
reference in the Prospectus, a reading of the latest
available interim unaudited financial statements of the
Company, the minutes of the meetings of the Board of
Directors of the Company, the Executive Committee thereof,
if any, and the stockholder of the Company, since December
31, 1992 to a specified date not more than five business
days prior to the date of such letter, and inquiries of
officers of the Company who have responsibility for
financial and accounting matters (it being understood that
the foregoing procedures do not constitute an examination
made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such
letter, and accordingly that Deloitte & Touche make no
representations as to the sufficiency of such procedures for
the Underwriters' purposes), nothing has come to their
attention which caused them to believe that (A) the
unaudited financial statements of the Company included or
incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to
said unaudited financial statements for them to be in
conformity with generally accepted accounting principles and
(C) at a specified date not more than five business days
prior to the date of the letter, there was any change in the
capital stock or long-term debt of the Company, or decrease
in its net assets, in each case as compared with amounts
shown in the most recent balance sheet incorporated by
reference in the Prospectus, except in all instances for
changes or decreases which the Prospectus discloses have
occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt or for
changes or decreases as set forth in such letter,
identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar
amounts, percentages of revenues and earnings and other
financial information pertaining to the Company included or
incorporated by reference in the Prospectus and specified in
Exhibit F hereto to the extent that such amounts, numbers,
percentages and information may be derived from the general
accounting records of the Company, and excluding any
questions requiring an interpretation by legal counsel, with
the results obtained from the application of specified
readings, inquiries and other appropriate procedures (which
procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the
letter, and found them to be in agreement.
(g) At the Closing Date, the Underwriters shall have
received (i) certificates, dated the Closing Date and signed
by the President or a Vice President of each of the Funding
Corporation and the Company, respectively, to the effect
that (A) the representations and warranties of the Funding
Corporation and the Company, as the case may be, contained
herein are true and correct, and (B) each of the Funding
Corporation and the Company has performed and complied with
all agreements and conditions in this Underwriting Agreement
on its part to be performed or complied with at or prior to
the Closing Date, (ii) a certificate, dated the Closing Date
and signed by the President or a Vice President of the
Company that since the most recent date as of which
information is given in the Prospectus, there has not been
any material adverse change in the business, property or
financial condition of the Company and there has not been
any material transaction entered into by the Company, other
than transactions in the ordinary course of business, in
each case other than as referred to in, or contemplated by,
such Prospectus; and (iii) a certificate, dated the Closing
Date and signed by the President, a Vice President or the
Treasurer of Entergy or the Vice President Financial
Strategies of Entergy Services, Inc., to the effect that
since the most recent date as of which information is given
in the Prospectus, there has not been any material adverse
change in the business, property or financial condition of
Entergy and its subsidiaries considered as a whole.
(h) At the Closing Date, the Underwriters shall have
received from Deloitte & Touche a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date the statements contained in the letter
delivered pursuant to Section 8(f) hereof.
(i) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Lease, the Lease Indenture (as defined in the
Prospectus) or the Trust Indenture shall have occurred.
(j) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, or the Entergy System as a whole as
it affects the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(k) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's Corporation shall have lowered its ratings of the
Bonds or the Company's First Mortgage Bonds in any respect.
(l) The Bonds shall, upon delivery to the Underwriters
in accordance with this Underwriting Agreement, be secured
by notes in accordance with the Trust Indenture; the
conditions precedent to a refunding, as set forth in the
Participation Agreement (including, without limitation,
Sections 2(d) and 11(c) thereof) and the Refunding
Agreements (including, without limitation, Section 5
thereof), shall have been met prior to the issuance and
delivery of such notes, with none of such conditions
precedent having been waived by the Funding Corporation, the
Company or the Trustee without the consent of the
Underwriters.
(m) The opinions of counsel required to be delivered
by the first two sentences of Section 11(c)(6) of the
Participation Agreement as a condition precedent to a
refunding shall also be addressed and delivered to the
Underwriters, except for the opinions of Special Counsel,
Special NRC Counsel and Special Mississippi Counsel to the
Owner Participants and the opinion of the Lessee's Special
Louisiana Counsel, all as described and/or defined in the
Participation Agreement, it being understood that such
opinions of counsel may be confirmations by counsel of
opinions previously delivered by such counsel in connection
with the transactions described in or contemplated by the
Participation Agreement, provided that such confirmations of
opinions shall be dated the Closing Date, shall confirm the
previously delivered opinions as of the Closing Date, and
shall either be addressed to the Underwriters or shall state
that the Underwriters may rely upon the previously delivered
opinions, as so confirmed, as if addressed to them.
(n) The opinions of counsel required to be delivered
to the Trustee pursuant to Section 2.04(e) of the Trust
Indenture shall also be addressed and delivered to the
Underwriters.
(o) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
The Funding Corporation and the Company will furnish
the Underwriters with such conformed copies of such opinions,
certificates, letters and documents as may be reasonably
requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 7 and Section 11.
SECTION 9. Conditions of the Obligations of the
Funding Corporation and the Company. The obligations of the
Funding Corporation and the Company hereunder shall be subject to
the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 5:30 p.m., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall
be pending before, or threatened by, the Commission on the
Closing Date.
(c) At the Closing Date there shall be in full force
and effect an order or orders of the Commission under the
Holding Company Act authorizing the issuance and sale of the
Bonds on the terms set forth in or contemplated by this
Underwriting Agreement, the Trust Indenture and the
Prospectus.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to Morgan Stanley &
Co. Incorporated, provided that, in the case of paragraph (a)
above, the Company and the Funding Corporation shall have used
their best efforts to comply with the requirements of Rule 424.
Any such termination shall be without liability of any party to
the other party, except as otherwise provided in paragraph (g) of
Section 7 and Section 11.
SECTION 10. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or any other statute or
common law and shall reimburse each such Underwriter and
controlling person for any legal or other expenses (including to
the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon
an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein
not misleading, or upon an untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus
(if used prior to the time the Prospectus is filed with the
Commission pursuant to Rule 424), or in the Prospectus, as
amended or supplemented (if any amendments or supplements shall
have been made), or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424) or the Registration Statement or the Prospectus or
any amendment or supplement to any thereof or arising out of or
based upon statements in or omissions from that part of the
Registration Statement that constitutes the statements of
eligibility under the TIA of the Trustee and Stanley Burg; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
of any person controlling any Underwriter on account of any such
losses, claims, damages, liabilities, expenses or actions arising
from the sale of the Bonds to any person in respect of the Basic
Prospectus or the Prospectus, as supplemented or amended
(excluding in both cases, however, any document then incorporated
or deemed incorporated by reference therein pursuant to Item 12
of Form S-3), furnished by an Underwriter to a person to whom any
of the Bonds were sold, insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied prior to
the consummation of such sale in the Prospectus, or any amendment
or supplement thereto furnished pursuant to Section 7(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
document then incorporated or deemed incorporated by reference in
the Prospectus or such amendment or supplement) is furnished by
such Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424), or in the Prospectus, as amended or supplemented
(if any amendments or supplements thereto shall have been
furnished), or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case, if, but
only if, such statement or omission was made in reliance upon and
in conformity with information furnished in writing to the
Company by such Underwriter specifically for use in connection
with the preparation of the Basic Prospectus (if used prior to
the date the Prospectus is filed with or transmitted for filing
to the Commission pursuant to Rule 424), the Registration
Statement or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party or parties in respect of which indemnity may be sought
pursuant to any of the preceding paragraphs, such party or
parties (hereinafter called the indemnified party) shall promptly
notify the party or parties against whom indemnity shall be
sought hereunder (hereinafter called the indemnifying party) in
writing, and the indemnifying party shall have the right to
participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying
party) the defense thereof, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment
of all fees and expenses. If the indemnifying party shall elect
not to assume the defense of any such action, the indemnifying
party shall reimburse the indemnified party for the reasonable
fees and expenses of any counsel retained by such indemnified
party. Such indemnified party shall have the right to employ
separate counsel in any such action in which the defense has been
assumed by the indemnifying party and participate in the defense
thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment
of counsel has been specifically authorized by the indemnifying
party or (ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment),
which separate firm (or firms), in the case of the Underwriters
being the indemnified parties, shall be designated in writing by
Morgan Stanley & Co. Incorporated). The indemnified party shall
be reimbursed for all such fees and expenses as they are
incurred. The indemnifying party shall not be liable for any
settlement of any such action effected without its consent, but
if any such action is settled with the consent of the
indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. An indemnifying party shall not, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened litigation, proceeding or claim in
respect of which indemnity has been properly sought by any
indemnified party or by any person controlling any indemnified
party hereunder, unless such settlement includes an unconditional
release of such indemnified party or such person controlling any
indemnified party from all liability with respect to claims which
are the subject matter of such litigation, proceeding or claim.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 10 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 10(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 10(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 10(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 11. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, the indemnity and contribution
agreements contained in Section 10 and the representations and
warranties and other agreements of the Funding Corporation and
the Company contained in this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Funding Corporation or the Company, its directors or officers or
the person controlling the Company and (ii) acceptance of
and payment for the Bonds. In addition, the indemnity and
contribution agreements contained in Section 10 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 12. Default of Underwriters. If any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds which it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Bonds,
the other Underwriters shall be obligated severally in the
proportions which the amounts of Bonds set forth opposite their
names in Section 2 hereof bear to the aggregate principal amount
of Bonds set forth opposite the names of all such non-defaulting
Underwriters, to purchase the Bonds which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Bonds which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such principal amount of Bonds
without the written consent of such Underwriter. If any
Underwriter or Underwriters shall fail or refuse to purchase
Bonds and the aggregate principal amount of Bonds with respect to
which such default occurs is more than one-tenth of the aggregate
principal amount of the Bonds the Company shall have the right
(a) to require such non-defaulting Underwriters to purchase and
pay for the respective principal amounts of Bonds that they had
severally agreed to purchase hereunder, as hereinabove provided,
and, in addition, the principal amount of Bonds that the
defaulting Underwriter or Underwriters shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of
the respective principal amounts of Bonds that such non-
defaulting Underwriters have otherwise agreed to purchase
hereunder, and/or (b) to procure one or more others, members of
the NASD (or, if not members of the NASD, who are foreign banks,
dealers or institutions not registered under the Exchange Act and
who agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter or
Underwriters had agreed to purchase, or that portion thereof that
the remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause(a). In the event the Company
shall exercise its rights under clause (a) and/or (b) above, the
Company shall give written notice thereof to the Underwriters
within 24 hours (excluding any Saturday, Sunday or legal holiday)
of the time when the Company learns of the failure or refusal of
any Underwriter or Underwriters to purchase and pay for its
respective principal amount of Bonds, and thereupon the Closing
Date shall be postponed for such period, not exceeding three
business days,as the Company shall determine. In the event the
Company shall be entitled to but shall not elect (within the time
period specified above) to exercise its rights under clause (a)
and/or (b), the Company shall be deemed to have elected to
terminate the Underwriting Agreement. In the absence of such
election by the Company, this Underwriting Agreement will, unless
otherwise agreed by the Company and the non-defaulting
Underwriters, terminate without liability on the part of any non-
defaulting party except as otherwise provided in paragraph (g) of
Section 7 and in Section 11. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
liability in respect of its default under this Underwriting
Agreement.
SECTION 13. Termination. This Underwriting Agreement
shall be subject to termination by notice given by Morgan Stanley
& Co. Incorporated to the Company and the Funding Corporation, if
(a) after the execution and delivery of this Underwriting
Agreement and prior to the Closing Date (i) trading generally
shall have been suspended on the New York Stock Exchange by the
New York Stock Exchange, the Commission or other governmental
authority, (ii) minimum or maximum ranges for prices shall have
been generally established on the New York Stock Exchange by the
New York Stock Exchange, the Commission or other governmental
authority, (iii) a general moratorium on commercial banking
activities shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the Underwriters' judgment, is material and adverse and
(b) in the case of any of the events specified in clauses (a) (i)
through (iv), such event singly or together with any other such
event makes it, in the reasonable judgment of the Underwriters
impracticable to market the Bonds. Any termination hereof,
pursuant to this Section 13, shall be without liability of any
party to any other party, except as otherwise provided in
paragraph (g) of Section 7 and in Section 11.
SECTION 14. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and Morgan
Stanley & Co. Incorporated. This Underwriting Agreement may be
executed in any number of separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original
and all of which, taken together, shall constitute but one and
the same agreement. This Underwriting Agreement shall inure to
the benefit of each of the Company, the Funding Corporation, the
Underwriters and, with respect to the provisions of Section 10,
each director, officer and controlling person referred to in
Section 10, and their respective successors. Should any part of
this Underwriting Agreement for any reason be declared invalid,
such declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Underwriting Agreement had been executed with
the invalid portion thereof eliminated. Nothing herein is
intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Underwriting
Agreement. The term "successor" as used in this Underwriting
Agreement shall not include any purchaser, as such purchaser, of
any Bonds from the Underwriters.
SECTION 15. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to Morgan Stanley & Co. Incorporated at the address
set forth at the beginning of this Underwriting Agreement (to the
attention of the General Counsel), if to the Company, shall be
mailed or delivered to it at 1340 Echelon Parkway, Jackson,
Mississippi 39213, Attention: Vice President - Financial
Strategies or, if to the Funding Corporation, shall be mailed or
delivered to it c/o National Corporate Research, Ltd., 15 North
Street, City of Dover, County of Kent, State of Delaware, 19901,
Attention: Joseph Mirrione, with a copy to Peter O'Brien, Reid &
Priest, 40 W. 57th Street, New York, NY 10019.
Very truly yours,
GG1B Funding Corporation
By: /s/ Joseph Mirrione
Name: Joseph Mirrione
Title: President
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Glenn E. Harder
Name: Glenn E. Harder
Title: Vice President -
Financial Strategies and
Treasurer
By: /s/ Bonnie Wilkinson
Attorney-in-fact
Accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ James D. Glascott
Name: James D. Glascott
Title: Vice President
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We, together with Reid & Priest, of New York, N.Y.,
have acted as counsel for System Energy Resources, Inc. (the
"Company") in connection with the sale to you, the several
Underwriters, pursuant to and subject to the conditions of the
Underwriting Agreement, effective (the "Underwriting
Agreement"), among GG1B Funding Corporation (the "Funding
Corporation"), the Company and you, of $____________ aggregate
principal amount of the Funding Corporation's Secured Lease
Obligation Bonds _____% Series due ____ and $___________
aggregate principal amount of its Secured Lease Obligation Bonds
_____% Series due ____ (the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture dated as of
, as amended by Supplemental Indenture No. 1 thereto, dated as of
(the Collateral Trust Indenture, as so amended being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee"). This opinion is being delivered to you pursuant
to Section 8(d) of the Underwriting
Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus (such terms having the same meaning
herein as in the Underwriting Agreement) filed under the
Securities Act of 1933, as amended (the "Securities Act"); (e)
the documents incorporated by reference in the Registration
Statement and Prospectus; (f) the records of various corporate
proceedings relating to the authorization, issuance and sale of
the Bonds by the Funding Corporation and the execution and
delivery by the Company of the Trust Indenture and the
Underwriting Agreement and (g) the proceedings before the
Securities and Exchange Commission (the "Commission") under the
Public Utility Holding Company Act of 1935, as amended (the "1935
Act"), relating to the issuance and sale of the Bonds by the
Funding Corporation and the execution and delivery by the Company
of the Trust Indenture and the Underwriting Agreement. We have
also examined or caused to be examined such other documents and
have satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. We have not
examined the Bonds, except a specimen thereof, and we have relied
upon a certificate of the Trustee under the Trust Indenture as to
the authentication and delivery thereof.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and other laws affecting
creditors' rights or remedies for the enforcement of the security
interest provided by the Trust Indenture and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
duly qualified under the Trust Indenture Act of 1939, as amended
(the "TIA"), and no proceedings to suspend the such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(3) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Company.
(4) The statements made in the Prospectus under the
captions "Selected Information", "Selected Information Relating
to the Bonds", "Certain Terms of the Bonds", "Security and Source
of Payment for the Bonds", "Description of the Bonds and the
Indenture", "Description of the Lease Indentures", "Description
of the Leases" and "Other Agreements", insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(5) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, as
amended, (b) will not violate or conflict with any provision of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in (other than as contemplated by the Trust Indenture)
any of the assets of the Company pursuant to the provisions of,
any mortgage, indenture, contract, agreement or other undertaking
known to us (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its respective assets, and (c) will
not violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to the Company (except that various approvals, authorizations,
orders, licenses, permits, franchises and consents of, and
registrations, declarations and filings with, governmental
authorities may be required to be obtained or made, as the case
may be (1) in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction, (2) in
connection with the construction, acquisition, ownership,
operation and maintenance of the Grand Gulf Nuclear Electric
Generating Station and (3) as set forth in the exceptions to the
opinions set forth in paragraph (7) below).
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement (except with respect to the part of the Registration
Statement that constitutes the statements of eligibility of the
Trustee and Stanley Burg, upon which we do not pass), at the date
of its effectiveness, and the Prospectus, at the time it was
filed with the Commission pursuant to Rule 424(b) under the
Securities Act, complied as to form in all material respects with
the applicable requirements of the Securities Act, the TIA, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
documents or portions thereof filed with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3, such documents or portions thereof, on
the day first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act; and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(7) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture; to
the best of our knowledge, said order is in full force and
effect; no further approval, authorization, consent or other
order of any governmental body including without limitation the
Nuclear Regulatory Commission (other than the declaration of
effectiveness of the Registration Statement under the Securities
Act or in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction) is legally
required to permit the valid issuance and sale by the Funding
Corporation of the Bonds to the Underwriters pursuant to the
Underwriting Agreement or the execution and delivery of the Trust
Indenture by the Company; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance (other than that relating to
the construction, acquisition, ownership, operation and
maintenance of the Grand Gulf Nuclear Electric Generating
Station) by the Company of its obligations with respect to the
Bonds or under the Trust Indenture and the Underwriting
Agreement.
(8) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement or the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement or the Prospectus
which are not so filed, or any contracts or other documents of
the Company of a character required to be disclosed in the
Registration Statement or the Prospectus which are not disclosed
and properly described therein as required; the descriptions in
the Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown.
(9) Except as disclosed in the Prospectus, there is no
action, suit, proceeding or investigation pending against or
affecting the Company or any of its assets the result of which
would, in our opinion, have a materially adverse effect on the
issuance and sale of the Bonds in accordance with the
Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) above. In connection
with the preparation of the Registration Statement and the
Prospectus, we have had discussions with certain of the Company's
officers and representatives, with other counsel for the Company,
with Deloitte & Touche, the independent certified public
accountants who audited certain of the financial statements
included or incorporated by reference in the Registration
Statement, and with your representatives. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at its effective date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time filed with the Commission pursuant to
Rule 424(b) under the Securities Act and at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements or other
financial or statistical data included or incorporated by
reference in the Registration Statement or the Prospectus or as
to the statements of eligibility on Form T-1 and T-2 filed as
exhibits to the Registration Statement.
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the Mississippi Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Reid & Priest and Winthrop, Stimson, Putnam &
Roberts, and we concur in the conclusions expressed therein
insofar as they involve questions of Mississippi law. As to all
matters of Arkansas and New York law, we have relied, in the case
of Arkansas law, upon the opinion of even date herewith addressed
to us of Friday, Eldredge & Clark of Little Rock, Arkansas, and
in the case of New York law, upon the opinion of even date
herewith addressed to you of Reid & Priest.
With respect to the opinion set forth in paragraph 2
above, we call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
The opinion set forth above is solely for the benefit
of the addressees of this Letter and may not be relied upon in
any manner by any other person without our prior written consent,
except that Reid & Priest and Winthrop, Stimson, Putnam & Roberts
may rely on this opinion as to all matters of Mississippi law in
rendering their opinions required to be delivered under the
Underwriting Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest
Counsel to the Company]
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted as
counsel for System Energy Resources, Inc. (the "Company") in
connection with the sale to you, the several Underwriters,
pursuant to and subject to the conditions of the Underwriting
Agreement, effective (the "Underwriting
Agreement"), among GG1B Funding Corporation (the "Funding
Corporation"), the Company and you, of $___________ aggregate
principal amount of the Funding Corporation's Secured Lease
Obligation Bonds, _____% Series due ____ and $___________
aggregate principal amount of its Secured Lease Obligation Bonds
_____% Series due ____ (the "Bonds"). The Bonds are being issued
pursuant to the Collateral Trust Indenture, dated as of
, as amended by Supplemental Indenture No. 1, dated as of
(the Collateral Trust Indenture, as so amended being hereinafter
referred to as the "Trust Indenture"), among the Funding
Corporation, the Company and Bankers Trust Company, as trustee
(the "Trustee"). This opinion is being delivered to you pursuant
to Section 8(d) of the Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus (such terms having the same meaning
herein as in the Underwriting Agreement) filed under the
Securities Act of 1933, as amended (the "Act"); (e) the documents
incorporated by reference in the Registration Statement and
Prospectus; (f) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Funding Corporation, and the execution and delivery by the
Company of the Trust Indenture and the Underwriting Agreement;
and (g) the proceedings before the Securities and Exchange
Commission (the "Commission") under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"), relating to the
issuance and sale of the Bonds by the Funding Corporation and the
execution and delivery by the Company of the Trust Indenture and
the Underwriting Agreement. We have also examined or caused to
be examined such other documents and have satisfied ourselves as
to such other matters as we have deemed necessary in order to
render this opinion. We have not examined the Bonds, except a
specimen thereof, and we have relied upon a certificate of the
Trustee under the Trust Indenture as to the authentication and
delivery thereof.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, is a legal, valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and other laws affecting
creditors' rights or remedies for the enforcement of the security
interest provided by the Trust Indenture and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
duly qualified under the Trust Indenture Act of 1939, as amended
(the "TIA"), and no proceedings to suspend such qualification
have been instituted or, to our knowledge, threatened by the
Commission.
(3) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Company.
(4) The execution, delivery and performance by the
Company of the Underwriting Agreement and the Trust Indenture and
the consummation of the transactions contemplated thereby (a)
will not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, as
amended, (b) will not violate or conflict with any provision of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in (other than as contemplated by the Trust Indenture)
any of the assets of the Company pursuant to the provisions of,
any mortgage, indenture, contract, agreement or other undertaking
known to us (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its respective assets, and (c) will
not violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to the Company (except that various approvals, authorizations,
orders, licenses, permits, franchises and consents of, and
registrations, declarations and filings with, governmental
authorities may be required to be obtained or made, as the case
may be (1) in connection or compliance with the provisions of the
securities or blue sky laws of any jurisdiction, (2) in
connection with the construction, acquisition, ownership,
operation and maintenance of the Grand Gulf Nuclear Electric
Generating Station and (3) as set forth in the exceptions to the
opinions set forth in paragraph 6 below).
(5) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement (except with respect to the part of the Registration
Statement that constitutes the statements of eligibility of the
Trustee and Stanley Burg, upon which we do not pass), at the date
of its effectiveness, and the Prospectus, at the time it was
filed with the Commission pursuant to Rule 424(b) under the
Securities Act, complied as to form in all material respects with
the applicable requirements of the Securities Act, the TIA, and
the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
documents or portions thereof filed with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3, such documents or portions thereof, on
the day first filed with the Commission, complied as to form in
all material respects with the applicable provisions of the
Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act; and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(6) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds and the execution, delivery and performance by the
Company of the Trust Indenture and Underwriting Agreement; to the
best of our knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of any
governmental body (other than the declaration of effectiveness of
the Registration Statement under the Securities Act or in
connection or compliance with the provisions of the securities or
blue sky laws of any jurisdiction) is legally required to permit
the valid issuance and sale by the Funding Corporation of the
Bonds to the Underwriters pursuant to the Underwriting Agreement
or the execution and delivery of the Trust Indenture by the
Company; and no further approval, authorization, consent or other
order of any governmental body is legally required to permit the
performance (other than that relating to the construction,
acquisition, ownership, operation and maintenance of the Grand
Gulf Nuclear Electric Generating Station) by the Company of its
obligations with respect to the Bonds or under the Trust
Indenture and the Underwriting Agreement.
(7) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement or the Prospectus which are not disclosed and properly
described therein as required are pending or, to our knowledge,
threatened; and we do not know of any contracts or other
documents of the Company of a character required to be filed as
exhibits to the Registration Statement or the Prospectus which
are not so filed, or any contracts or other documents of the
Company of a character required to be disclosed in the
Registration Statement or the Prospectus which are not disclosed
and properly described therein as required; the descriptions in
the Registration Statement and Prospectus of statutes, legal and
government proceedings and contracts and other documents are
accurate and fairly present the information required to be shown.
(8) Except as disclosed in the Prospectus, there is no
action, suit, proceeding or investigation pending against or
affecting the Company or any of its assets the result of which
would, in our opinion, have a materially adverse effect on the
financial condition of the Company or on the issuance and sale of
the Bonds in accordance with the Underwriting Agreement.
(9) The statements made in the Prospectus under the
captions "Selected Information", "Selected Information Relating
to the Bonds", "Certain Terms of the Bonds", "Security and Source
of Payment for the Bonds", "Description of the Bonds and the
Indenture", "Description of the Lease Indentures", "Description
of the Leases" and "Other Agreements", insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in Paragraph 9
above. In connection with the preparation of the Registration
Statement and the Prospectus, we have had discussions with
certain of the Company's officers and representatives, with other
counsel for the Company, with Deloitte & Touche, the independent
certified public accountants who audited certain of the financial
statements included or incorporated by reference in the
Registration Statement, and with your representatives. Our
examination of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information which
gives us reason to believe that the Registration Statement, at
its effective date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time filed with the
Commission pursuant to Rule 424(b) under the Securities Act and
at the date hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus or as to the statements of eligibility on Form T-1 and
T-2 filed as exhibits to the Registration Statement.
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. Accordingly, as to matters involving the laws of other
jurisdictions, we have relied upon the below-named opinions of
counsel to the extent that such opinions state an opinion with
regard to the matters covered by this opinion. As to matters of
Arkansas law relating to the Company, we have, with your consent,
relied upon an opinion of even date herewith addressed to us of
Messrs. Friday, Eldredge & Clark of Little Rock, Arkansas. As to
matters of Mississippi law related to the Company, we have, with
your consent, relied upon the opinion of even date herewith of
Wise Carter Child & Caraway, Professional Association, which has
been delivered to you pursuant to the Underwriting Agreement.
The opinion set forth above is solely for the benefit
of the addressees of this Letter and may not be relied upon in
any manner by any other person without our prior written consent,
except that Wise Carter Child & Caraway may rely on this opinion
as to matters of New York law in rendering its opinion referred
to above.
With respect to the opinion set forth in paragraph 2
above, we call your attention to the fact that the provisions of
the Atomic Energy Act of 1954, as amended, and regulations
promulgated thereunder impose certain licensing and other
requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
We have not examined and are expressing no opinion as
to the title of the Company to its properties or the lien of the
Trust Indenture.
Very truly yours,
REID & PRIEST
<PAGE>
EXHIBIT C
[Letterhead of Friday, Eldredge & Clark]
REID & PRIEST
40 West 57th Street
New York, New York 10019
WISE CARTER CHILD & CARAWAY,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the sale to
the several Underwriters pursuant to and subject to the
conditions of the Underwriting Agreement, effective
(the "Underwriting Agreement"), among GG1B Funding Corporation
(the "Funding Corporation"), the Company and such Underwriters,
of $___________ in principal amount of the Funding Corporation's
Secured Lease Obligation Bonds _____% Series due ____ and
$___________ aggregate principal amount of its Secured Lease
Obligation Bonds _____% Series due ____ (the "Bonds"). The Bonds
are being issued pursuant to the Collateral Trust Indenture,
dated as of , as amended by Supplemental Indenture
No. 1, dated as of (the Collateral Trust
Indenture, as so amended being hereinafter referred to as the
"Trust Indenture"), among the Funding Corporation, the Company
and Bankers Trust Company, as trustee (the "Trustee"). This
opinion is being delivered to you pursuant to Section 8(d) of the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus (such terms having the same meaning
herein as in the Underwriting Agreement) filed under the
Securities Act of 1933, as amended (the "Act"); (e) the documents
incorporated by reference in the Registration Statement and
Prospectus; and (f) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
the Funding Corporation and the execution and delivery by the
Company of the Trust Indenture and the Underwriting Agreement. We
have also examined or caused to be examined such other documents
and have satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. We have not
examined the Bonds, except a specimen thereof, and we have relied
upon a certificate of the Trustee under the Trust Indenture as to
the authentication and delivery thereof.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas, and is duly qualified to conduct its business in such
state.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company and is a legal, valid and binding instrument of the
Company enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and other laws affecting
creditors' rights or remedies for the enforcement of the security
interest provided by the Trust Indenture and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or law).
(3) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Company.
(4) The execution, delivery and performance by the
Company of the Trust Indenture and the Underwriting Agreement,
and the consummation of the transactions contemplated thereby (a)
will not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, and (b) will not violate or conflict with any
provision of any law or regulation of the State of Arkansas or
any subdivision thereof applicable to the Company or, to the best
of our knowledge (having made due inquiry with respect thereto),
any provision of any order, writ, judgment or decree of any
governmental instrumentality of the State of Arkansas or any
subdivision thereof applicable to the Company.
(5) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration or
filing with any Arkansas governmental authority is required in
connection with the issuance and sale of the Bonds or the
execution, delivery and performance by the Company of the Trust
Indenture and the Underwriting Agreement.
(6) Except as disclosed in the Prospectus, there is no
action, suit, proceeding or investigation pending against or
affecting the Company or any of its assets the result of which
would, in our opinion, have a materially adverse effect on the
financial condition of the Company or on the issuance and sale of
the Bonds in accordance with the Underwriting Agreement.
Since we have acted herein only as Arkansas counsel for
the Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under the Underwriting Agreement. The opinions set
forth above are solely for the benefit of the addressees of this
Letter and may not be relied upon in any manner by any other
person without our prior written consent, except that Winthrop,
Stimson, Putnam & Roberts may rely on these opinions as to all
matters of Arkansas law and the underwriters to whom your
respective opinions are addressed may rely upon these opinions as
though addressed and delivered to such underwriters.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of Reid & Priest, Counsel to
Funding Corporation]
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We have acted as special counsel to GG1B Funding
Corporation ("Funding Corporation"), in connection with the sale
to you, the several Underwriters, of $___________ aggregate
principal amount of Funding Corporation's Secured Lease
Obligation Bonds, _____% Series due ____ and $___________ of its
Secured Lease Obligation Bonds, _____% Series due ____ (the
"Bonds"), pursuant to and subject to the conditions set forth in
the Underwriting Agreement, effective (the
"Underwriting Agreement"), among Funding Corporation, System
Energy Resources, Inc. ("SERI") and you. The Bonds are being
issued pursuant to the Collateral Trust Indenture, dated as of
, as amended by Supplemental Indenture No. 1, dated as of
(the Collateral Trust Indenture, as so amended being hereinafter
referred to as the "Trust Indenture"), among Funding Corporation,
SERI and Bankers Trust Company, as Trustee (the "Trustee"). This
opinion is being delivered to you pursuant to Section 8(d) of the
Underwriting Agreement.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) Funding Corporation's Certificate of
Incorporation and By-Laws, as amended; (b) the Underwriting
Agreement; (c) the Trust Indenture; (d) the Registration
Statement and Prospectus (such terms having the same meaning
herein as in the Underwriting Agreement) filed under the
Securities Act of 1933, as amended (the "Act"), and the Trust
Indenture Act of 1939, as amended (the "TIA"); (e) the documents
incorporated by reference in the Registration Statement and
Prospectus; (f) the records of various corporate proceedings
relating to the authorization, issuance and sale of the Bonds by
Funding Corporation and the execution and delivery by the Company
of the Trust Indenture and the Underwriting Agreement; and (g)
the proceedings before the Securities and Exchange Commission
(the "Commission") under the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act"), relating to the issuance
and sale of the Bonds by Funding Corporation, and the execution
and delivery by Funding Corporation of the Trust Indenture and
the Underwriting Agreement. We have also examined or caused to
be examined such other documents and have satisfied ourselves as
to such other matters as we have deemed necessary in order to
render this opinion. We have not examined the Bonds, except a
specimen thereof, and we have relied upon a certificate of the
Trustee as to the authentication and delivery thereof.
Based upon the foregoing, and subject to the foregoing
and to the further exceptions and qualifications set forth below,
we are of the opinion that:
(1) Funding Corporation is duly incorporated and
validly existing as a corporation in good standing under the laws
of the State of Delaware and has all corporate and other power
and authority to own its properties and conduct its business as
described in the Prospectus.
(2) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of
Funding Corporation, has been duly and validly executed and
delivered by Funding Corporation and is a legal, valid and
binding instrument of Funding Corporation, enforceable against
Funding Corporation in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws affecting creditors' rights or
remedies for the enforcement of the security interest provided by
the Trust Indenture and general equitable principles (regardless
of whether such enforceability is considered in a proceeding in
equity or at law), and has been duly qualified under the TIA, and
no proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(3) Funding Corporation has executed such instruments
and complied with such other formalities as are required by the
Trust Indenture as a condition precedent to the creation and
issuance of the Bonds.
(4) The Bonds have been duly and validly authorized,
executed and issued by Funding Corporation and are legal, valid
and binding obligations of Funding Corporation enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws
affecting creditors' rights or remedies for the enforcement of
the security interest provided by the Trust Indenture and general
equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law), are entitled
to the benefits and security afforded by the Trust Indenture in
accordance with the terms of the Trust Indenture and the Bonds,
and conform to the description thereof in the Prospectus.
(5) The Registration Statement has become, and on the
date hereof is, effective under the Act, and to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Act.
(6) The Commission has issued an order under the 1935
Act authorizing the issuance and sale of the Bonds, and no other
consent, approval, authorization or other order of any regulatory
body is legally required for the valid issuance and sale of the
Bonds pursuant to the Underwriting Agreement other than the
declaration of effectiveness of the Registration Statement under
the Securities Act or such registration or qualification as may
be required under state securities or Blue Sky laws.
(7) It is not necessary for Funding Corporation to
register as an investment company pursuant to the Investment
Company Act of 1940 in order to participate in the transactions
contemplated by the Prospectus.
(8) No legal or governmental proceedings to which
Funding Corporation is a party, or of which its property is the
subject, that are of a character required to be disclosed in the
Registration Statement or the Prospectus are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of Funding Corporation of a character required to
be filed as exhibits to the Registration Statement which are not
so filed, or any contracts or other documents of Funding
Corporation of a character required to be disclosed in the
Registration Statement or the Prospectus which are not disclosed
and properly described therein as required; the descriptions in
the Registration Statement and Prospectus of statutes, legal and
government proceedings and contracts and other documents fairly
present the information required to be shown.
(9) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by Funding
Corporation.
(10) Except as disclosed in the Prospectus, there is no
action, suit, proceeding or investigation pending against or
affecting Funding Corporation or any of its assets the result of
which would, in our opinion, have a materially adverse effect on
the financial condition of Funding Corporation or on the issuance
and sale of the Bonds in accordance with the Underwriting
Agreement.
(11) Neither the execution and delivery by Funding
Corporation of the Underwriting Agreement, the Bonds or the Trust
Indenture nor the consummation of the transactions therein
contemplated will conflict with, or result in a breach of, any of
the terms, conditions or provisions of the Certificate of
Incorporation or By-Laws of Funding Corporation or of any law or
decree, or any regulation, order, writ, injunction, determination
or award known to us of any court or arbitrator or of any
governmental department, body, commission, board, bureau, agency
or instrumentality or any agreement or instrument known to us to
which Funding Corporation is a party or otherwise subject or by
which it or any of its property is affected or by which it is
bound, or constitute a default thereunder or result in the
creation or imposition of any lien, charge, encumbrance on or
security interest in (other than as contemplated by the Trust
Indenture) any of the assets of Funding Corporation pursuant to
the provisions of any mortgage, indenture, contract, agreement or
other undertaking known to us after due inquiry with respect
thereto to which Funding Corporation is a party or which purports
to be binding upon Funding Corporation or upon any of its assets.
(12) The statements contained in the Prospectus under
the captions "Selected Information", "Selected Information
Relating to the Bonds", "Certain Terms of the Bonds", "Security
and Source of Payment for the Bonds", "GG1B Funding Corporation",
"Description of the Bonds and the Indenture", "Description of the
Lease Indentures", "Description of the Leases" and "Other
Agreements", insofar as such statements purport to constitute
summaries of documents referred to therein, constitute accurate
summaries of the terms of such documents in all material
respects.
With respect to the opinions set forth in paragraphs 2
and 4 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
In rendering the opinions set forth above, we have not
passed upon and do not purport to pass upon the application of
any laws of any jurisdiction other than the Federal laws of the
United States, the law of the State of New York and the General
Corporation Law of the State of Delaware.
The opinion set forth above is solely for the benefit
of the addressees of this Letter and may not be relied upon in
any manner by any other person without our prior written consent,
except that the Trustee, Funding Corporation and SERI are
entitled to rely on this opinion as if addressed to them.
Very truly yours,
REID & PRIEST
<PAGE>
EXHIBIT E
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
We have acted as counsel for you as the underwriters
(the "Underwriters"), pursuant to the Underwriting Agreement
effective (the "Underwriting Agreement") among
the Underwriters, GG1B Funding Corporation (the "Funding
Corporation") and System Energy Resources, Inc. (the "Company"),
providing for the several purchases and reoffering by the
Underwriters of $___________ aggregate principal amount of the
Funding Corporation's Secured Lease Obligation Bonds _____%
Series due ____ and $___________ aggregate principal amount of
its Secured Lease Obligation Bonds _____% Series due ____
(collectively, the "Bonds"). Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in
the Underwriting Agreement.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and the Funding
Corporation and statements in the Registration Statement. In
such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of the documents
submitted to us as certified or photostatic copies, and the
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the Bonds
except specimens thereof, and we have relied upon a certificate
of the Trustee as to the due authentication and delivery thereof.
We have not examined into, and are expressing no opinion or
belief as to matters relating to, titles to property, franchises,
licenses and permits or the lien of the Trust Indenture.
Based upon the foregoing, it is our opinion that:
(1) The Trust Indenture has been duly and validly
authorized by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by the
Company, and is a valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization and other laws affecting creditors'
rights or remedies for the enforcement of the security interest
provided by the Trust Indenture and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and is duly qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Securities and Exchange
Commission (the "Commission").
(2) The Bonds have been duly and validly authorized by
all necessary corporate action, and are legal, valid and binding
obligations of the Funding Corporation, enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization and other laws affecting
creditors' rights or remedies for the enforcement of the security
interest provided by the Trust Indenture and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(3) The statements made in the Prospectus under the
captions "Selected Information", "Selected Information Relating
to the Bonds", "Certain Terms of the Bonds", "Security and Source
of Payment for the Bonds", "Description of the Bonds and the
Indenture", "Description of the Lease Indentures", "Description
of the Leases" and "Other Agreements", insofar as such statements
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(4) The Underwriting Agreement has been duly and
validly authorized, executed and delivered by the Funding
Corporation and the Company.
(5) An appropriate order has been entered by the
Commission under the Public Utility Holding Company Act of 1935,
as amended, granting the application, as amended, with respect to
the Bonds and, to the best of our knowledge, such order is in
full force and effect.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement (except with respect to the part of the Registration
Statement that constitutes the statements of eligibility on Forms
T-1 and T-2, respectively, of the Trustee and Stanley Burg, upon
which we do not pass), at the date of its effectiveness, and the
Prospectus, at the time it was first filed with the Commission
pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), complied as to form in all material
respects with the applicable requirements of the Securities Act,
the TIA, and the applicable instructions, rules and regulations
of the Commission thereunder or pursuant to said instructions,
rules and regulations are deemed to comply therewith; and, with
respect to documents or portions thereof filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the day first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act; and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and information included or incorporated by reference in
the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) above. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we have had discussions with certain officers and
representatives of and counsel for the Funding Corporation and
the Company and its affiliates, with Deloitte & Touche, the
independent certified public accountants who audited certain of
the financial statements included or incorporated by reference in
the Registration Statement, and with your representatives. Our
examination of the Registration Statement and the Prospectus, and
our discussions, did not disclose to us any information which
gives us reason to believe that, at its effective date, the
Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the time first filed with
the Commission pursuant to Rule 424 under the Securities Act and
at the date hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
We do not express any opinion or belief as to the financial
statements or other financial or statistical data included or
incorporated by reference in the Registration Statement or
Prospectus or as to the statements of eligibility on Form T-1 and
T-2 filed as exhibits to the Registration Statement.
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon opinions of even date herewith addressed to
you of (i) Friday, Eldredge & Clark and (ii) Wise Carter Child
& Caraway, Professional Association, as to all matters of
Arkansas and Mississippi law, respectively, related to this
opinion.
With respect to the opinions set forth in paragraphs 1
and 2 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustee or other
purchasers pursuant to the remedial provisions of the Trust
Indenture) who seek to acquire, possess or use nuclear production
facilities.
This opinion is solely for the benefit of the
addressees hereof in connection with the Underwriting Agreement
and the transactions contemplated thereunder and may not be
relied upon in any manner by any other person or for any other
purpose, without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT F
ITEMS PURSUANT TO SECTION 8(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN
LETTER OF DELOITTE & TOUCHE REFERRED
TO THEREIN
CAPTION ITEMS
REGISTRATION STATEMENT
ON FORM S-3 (NO. 33-51175)
RATIOS OF EARNINGS TO FIXED The unaudited ratios of
CHARGES earnings to fixed charges of
the Company for each of the
five years in the period ended
December 31, 1992 and the
twelve-month period ended
September 30, 1993, the
coverage deficiency in footnote
(b) and compliance with the
requirements of Item 503(d) of
Regulation S-K. P. 32
FORM 10-Q FOR THE
QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1993
COMMITMENTS AND The total equity capital
CONTINGENCIES percentage of adjusted
capitalization and the fixed
charge coverage ratio of the
Company at September 30, 1993
for purposes of the
Reimbursement Agreement. P. 41
Exhibit B-10(b)
REFUNDING AGREEMENT NO. 1-A
dated as of January 1, 1994
among
RESOURCES CAPITAL MANAGEMENT CORPORATION,
as Owner Participant and Approved Transferee of
Public Service Resources Corporation
the Original Owner Participant
GG1B Funding Corporation,
as Funding Corporation
MERIDIAN TRUST COMPANY,
as Corporate Owner Trustee under Trust Agreement No. 1, dated as
of
December 1, 1988, with the Individual Owner Trustee and the Owner
Participant, as successor in interest to the Original Owner
Participant,
STEPHEN J. KABA,
as successor Individual Owner Trustee under Trust Agreement No.
1, dated as of December 1, 1988, with the Corporate Owner
Trustee and the Owner Participant, as successor in interest to
the
Original Owner Participant,
BANKERS TRUST COMPANY,
as Corporate Indenture Trustee under Trust Indenture, Deed of
Trust,
Mortgage, Security Agreement and Assignment of Facility Lease No.
1,
dated as of December l, 1988, as supplemented, with the
Individual Indenture
Trustee and the Owner Trustee,
STANLEY BURG,
as Individual Indenture Trustee under Trust Indenture, Deed of
Trust, Mortgage, Security Agreement and Assignment of Facility
Lease
No. 1, dated as of December 1, 1988, as supplemented, with the
Corporate Indenture Trustee and the Owner Trustee,
and
SYSTEM ENERGY RESOURCES, INC.,
as Lessee
<PAGE>
REFUNDING AGREEMENT NO. 1-A, dated as of January 1,
1994, ("Refunding Agreement") among RESOURCES CAPITAL MANAGEMENT
CORPORATION, a New Jersey corporation (the "Owner Participant")
as Approved Transferee (such term, and other capitalized terms
used herein without definition, being defined as provided in
Section 1) of Public Service Resources Corporation, the Original
Owner Participant, GG1A FUNDING CORPORATION, a Delaware
corporation (the "Original Funding Corporation"), GG1B FUNDING
CORPORATION, a Delaware corporation (the "Funding Corporation"),
MERIDIAN TRUST COMPANY, a Pennsylvania trust company, not in its
individual capacity, but solely as Corporate Owner Trustee under
the Trust Agreement, STEPHEN J. KABA, not in his individual
capacity, but solely as successor Individual Owner Trustee under
the Trust Agreement, BANKERS TRUST COMPANY, a New York banking
corporation, not in its individual capacity but solely as
Corporate Indenture Trustee under the Indenture, STANLEY BURG,
not in his individual capacity but solely as Individual Indenture
Trustee under the Indenture, and SYSTEM ENERGY RESOURCES, INC.,
an Arkansas corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the parties to this Refunding Agreement other
than the Funding Corporation are parties to Participation
Agreement No. 1, dated as of December 1, 1988 (the "Participation
Agreement"), among the Lessee, the Original Funding Corporation,
the Owner Participant, as successor in interest to the Original
Owner Participant, the Corporate Owner Trustee, the Individual
Owner Trustee, the Corporate Indenture Trustee, the Individual
Indenture Trustee and the Original Loan Participants named
therein; and
WHEREAS, the Initial Series Notes were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest; and
WHEREAS, on April 13, 1989 the Original Funding
Corporation utilized the proceeds of a series of Bonds issued by
it to make a Refunding Loan to the Owner Trustee and the Owner
Trustee issued Fixed Rate Notes to refund the Initial Series
Notes; and
WHEREAS, Section 2(d) of the Participation Agreement
provides for a refunding of the Notes theretofore issued and then
Outstanding upon the satisfaction of the conditions set forth in
Sections 2 and 11(c) of the Participation Agreement; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return of the Owner
Participant in the event of the issuance of Fixed Rate Notes; and
WHEREAS, on December 14, 1993, at the direction of the
Lessee and the Owner Participant, the Owner Trustee gave the
Indenture Trustee notice of prepayment, which notice provided, in
accordance with Section 3.9(c) of the Indenture, that such
prepayment is conditional upon the receipt by the Indenture
Trustee on or prior to the Refunding Date, of moneys sufficient
to pay the principal of, and the premium, if any, and interest on
the Outstanding Notes and that if such moneys shall not have been
so received, said notice shall be of no force and effect and the
Owner Trustee shall not be required to prepay the Outstanding
Notes, on January 18, 1994 of the Outstanding Notes and the
Original Funding Corporation gives notice to the Collateral Trust
Trustee of the redemption on January 18, 1994 of the Bonds
Outstanding, which notice was correspondingly conditional; and
WHEREAS, the parties hereto wish to cause the issuance
of a new series of Fixed Rate Notes (the "Refunding Notes") in
order to refund the Outstanding Notes and redeem the outstanding
Bonds; and
WHEREAS, the Lessee has filed with the Securities and
Exchange Commission a Registration Statement on Form S-3 (Reg.
No. 33-51175) relating to the New Bonds, which Registration
Statement became effective on December 28, 1993; and
WHEREAS, Section 10.1(viii) of the Indenture provides,
among other things, that the Owner Trustee and Indenture Trustee
may, without consent of the Holders of Notes Outstanding, execute
a supplement to the Indenture in order to evidence the issuance
of and to provide the terms of Additional Notes; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Indenture Trustee intend to execute
Supplemental Indenture No. 2 to the Indenture, dated as of
January 1, 1994 ("Supplemental Indenture No. 2"), providing for
the issuance under the Indenture of Refunding Notes as
contemplated in Supplemental Indenture No. 2; and
WHEREAS, Section 10.2(ii) of the Indenture provides,
among other things, that, upon receipt of a written instruction
from the Lessee and the Owner Trustee, the Indenture Trustee
shall consent to certain amendments of the Facility Lease; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Lessee intend to execute Lease
Supplement No. 2 to the Facility Lease, dated as of January 1,
1994 ("Lease Supplement No. 2"), to amend certain schedules
thereto;
WHEREAS, subject to the conditions set forth herein,
the Owner Participant and the Lessee intend to execute Amendment
No. 1 dated as of January 1, 1994 to the Tax Indemnity Agreement
No. 1 ("TIA Amendment No. 1"), to amend certain provisions of the
Tax Indemnity Agreement;
WHEREAS, Basic Rent and the Value Schedules, as set
forth in Lease Supplement No. 2, have been adjusted to take into
effect, among other things, the additional Tax Assumptions set
forth on TIA Amendment No. 1 and the additional Pricing
Assumptions set forth on Schedule 2 hereto;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein shall have the respective meanings
assigned to such terms as set forth in Appendix A to the
Participation Agreement.
SECTION 2. Agreement of Funding Corporation.
(a) Subject to the terms and conditions hereof and of
Section 2 and 11(c) of the Participation Agreement, on the
Refunding Date, Funding Corporation shall make a Refunding Loan
to the Owner Trustee by paying to the Indenture Trustee for the
account of the Owner Trustee immediately available funds in an
amount equal to $348,009,000. Proceeds of the Refunding Loan
shall be paid directly to a special account established by the
Owner Trustee with the Indenture Trustee and shall be applied as
set forth in Section 3(c)(ii).
(b) On and as of the Refunding Date, Original Funding
Corporation hereby assigns to Funding Corporation and Funding
Corporation hereby assumes all rights and obligations of Original
Funding Corporation under the Participation Agreement and
thereupon the Original Funding Corporation shall be released and
discharged from any further obligations under the Participation
Agreement. Notwithstanding the foregoing, Original Funding
Corporation shall continue to have the rights and obligations of
an Indemnitee under Section 13 of the Participation Agreement. On
and as of the Refunding Date (and for purposes of the definitions
contained in this Agreement on and as of the date of the
execution and delivery hereof), Appendix A to the Participation
Agreement shall be amended such that Funding Corporation, as
defined therein, shall mean GG1B Funding Corporation, a Delaware
corporation (it being understood that the reference to "Funding
Corporation" in Section 11(c) of the Participation Agreement
refers to GG1B Funding Corporation in the context of the
Refunding Loan contemplated hereby).
SECTION 3. Issuance of Refunding Notes by
Owner Trustee; Application of
Proceeds.
Subject to the terms and conditions hereof and of
Sections 2 and 11(c) of the Participation Agreement and Section
3.5 of the Indenture, on the Refunding Date, (a)(i) the Lessee
and the Lessor shall enter into Lease Supplement No. 2, (ii) the
Owner Trustee and the Indenture Trustee shall enter into
Supplemental Indenture No. 2, and (iii) the Lessee, the Funding
Corporation and the Collateral Trust Trustee shall enter into the
Collateral Trust Indenture and, subject to satisfaction of the
conditions therein set forth, Supplemental Indenture No. 1 to the
Collateral Trust Indenture ("Collateral Trust Supplement") and
(iv) the Lessee and the Owner Participant will enter into the TIA
Amendment No. 1, (b) the Lessee shall make a Supplemental Rent
payment pursuant to Section 3(b)(ii) of the Facility Lease in the
amount of $25,935,493.05, (c) upon receipt of the Refunding Loan
to be made by Funding Corporation in accordance with Section 2
hereof and such Supplemental Rent payment, the Indenture Trustee,
at the direction of the Owner Trustee, shall (i) authenticate and
deliver the Refunding Notes, in the aggregate principal amount of
the Refunding Loan and bearing interest at the rates per annum
and in the amounts, respectively, set forth in Supplemental
Indenture No. 2 and (ii) apply the proceeds of the Refunding Loan
to the prepayment in full of the principal of the Outstanding
Notes (it being understood that any accrued interest on the
Outstanding Notes shall be paid from the Rent payable by the
Lessee under the Facility Lease on the Refunding Date and that
the premium payable upon the prepayment of the Outstanding Notes
shall be paid from the Supplemental Rent payable by the Lessee in
accordance with clause (b) hereof under Section 3(b)(ii) of the
Facility Lease on the Refunding Date) and (d) Schedule 5 to the
Participation Agreement shall be amended to include the
additional Pricing Assumptions set forth on Schedule 2 hereof.
SECTION 4. Implementation.
(a) Forms. The forms of Supplemental Indenture No. 2,
Lease Supplement No. 2, the Collateral Trust Indenture and the
Collateral Trust Supplement and the TIA Amendment No. 1 are
attached hereto as Exhibits A, B, C, D and E respectively.
(b) Obligations of the Owner Participant. The Owner
Participant hereby directs the Owner Trustee to execute and
deliver this Refunding Agreement and, subject to the terms and
conditions of Sections 2(d) and 11(c) of the Participation
Agreement and Section 3.5 of the Indenture, and subject to the
Owner Trustee having received the Rent payments described in
Section 3, the Owner Participant hereby agrees that, on the
Refunding Date, it will execute and deliver TIA Amendment No. 1
and direct (i) the Owner Trustee to execute and deliver
Supplemental Indenture No. 2 and Lease Supplement No. 2
(collectively, with this Refunding Agreement and TIA Amendment
No. 1, the "Refunding Documents") in the forms of Exhibits A and
B hereto, respectively, (ii) the Corporate Owner Trustee to
execute Refunding Notes as contemplated by the Refunding
Documents and to request the Indenture Trustee (x) to
authenticate and deliver the Refunding Notes pursuant to Section
3.5 of the Indenture and (y) in view of the fact that Funding
Corporation is to pledge such Refunding Notes to the Collateral
Trust Trustee, to cause such Refunding Notes to be delivered
directly to, and registered in the name of, the Collateral Trust
Trustee and (iii) the Corporate Owner Trustee to execute and
deliver all other agreements, instruments and certificates
contemplated by the Transaction Documents, the Financing
Documents and the Refunding Documents.
(c) Instruction and Consent. Subject to satisfaction
of the terms and conditions of Section 2(d) and 11(c) of the
Participation Agreement and Section 3.5 of the Indenture, (x) in
accordance with Section 10.2(ii) of the Indenture, the Lessee and
the Owner Trustee hereby instruct the Indenture Trustee to
consent, effective as of the Refunding Date, to Lease Amendment
No. 2 and the Indenture Trustee hereby so consents and (y) in
accordance with Section 10.1(viii) of the Indenture, the Owner
Trustee and the Indenture Trustee hereby consent and agree to
execute and deliver Supplemental Indenture No. 2 on the Refunding
Date.
(d) Consent of Lessee. In accordance with Section
8(b)(2) of the Participation Agreement, the Lessee hereby
consents to the refunding of the Outstanding Notes as
contemplated hereby.
(e) Recordations and Filings. The Lessee agrees that
it will cause to be made the recordations and filings set forth
in Schedule 1 hereto and represents that such filings and
recordations are all the recordations and filings that are
necessary in order to preserve, protect and perfect the Owner
Trustee's right, title and interest in and to the Undivided
Interest, the Ground Lease Property and under the Facility Lease,
as amended by Lease Amendment No. 2, and the first and prior
security interest of the Indenture Trustee in the Lease Indenture
Estate under the Indenture, as amended by Supplemental Indenture
No. 2.
(f) Funding Corporation Consent. Pursuant to the
Collateral Trust Indenture, Funding Corporation shall assign to
the Collateral Trust Trustee all of Funding Corporation's right,
title and interest in and to the Refunding Notes, as security for
Funding Corporation's obligations under the Collateral Trust
Indenture and, therefore, Funding Corporation hereby consents to
the Owner Trustee's issuance of the Refunding Notes directly to
the Collateral Trust Trustee.
SECTION 5. Conditions Precedent.
(a) Conditions Precedent to Obligations of Funding
Corporation. The obligations of Funding Corporation and the
Lessee to take the actions specified in Sections 2 and 3 hereof
on the Refunding Date shall be subject to the following
conditions precedent:
(i) the Underwriting Agreement dated January 11,
1994 (the "Underwriting Agreement") among Funding
Corporation, the Lessee, Morgan Stanley & Co.
Incorporated, Bear, Stearns & Co. Inc. and Goldman,
Sachs & Co. (collectively, the "Underwriters") relating
to the offer and sale to the public of $435,102,000
aggregate principal amount of Secured Lease Obligation
Bonds of Funding Corporation (the "Bonds") shall have
been executed and delivered;
(ii) the Underwriters shall have purchased the
Bonds pursuant to the Underwriting Agreement; and
(iii) the conditions set forth in Sections 2 and
11(c) of the Participation Agreement and in the
Underwriting Agreement shall have been satisfied.
(b) Conditions Precedent to Obligations of the Owner
Trustee. The obligations of the Owner Trustee to issue and
deliver the Refunding Notes to the Collateral Trust Trustee, as
assignee of Funding Corporation on the Refunding Date in
consideration of the Refunding Loan shall be subject to (x) the
simultaneous performance by Funding Corporation of its
obligations under Sections 2 and 3 hereof and the payment by the
Lessee of Basic Rent, the prepayment of Basic Rent, and
Supplemental Rent referred to in Section 3 hereof, (y) the
satisfaction of the conditions set forth in Sections 2 and 11(c)
of the Participation Agreement and Section 3.5 of the Indenture
to the participation by the Owner Trustee in the transactions
contemplated by this Refunding Agreement and (z) receipt of a
direction from the Owner Participant to the effect set forth in
Section 4(b) hereof.
(c) Conditions Precedent to Obligations of the
Indenture Trustee. The obligations of the Indenture Trustee to
take the action required by Section 3 hereof on the Refunding
Date shall be subject to the satisfaction of the conditions set
forth in Section 3.5 of the Indenture.
SECTION 6. Expenses.
The Lessee hereby affirms that it shall pay, as
Supplemental Rent pursuant to Section 14(b)(ii)(g) of the
Participation Agreement, all reasonable fees, expenses,
disbursements and costs (including legal and other professional
fees and expenses) incurred by the Owner Participant, the Owner
Trustee, the Indenture Trustee and the Collateral Trust Trustee
in connection with the refunding contemplated hereby; provided,
however, that:
(i) Lessee shall pay a fixed sum of $125,000 to
legal counsel of the Owner Participant and a
fee of $160,000 to the Owner Participant in
connection with the refinancing;
(ii) Lessee shall pay a financial advisory fee
of $120,000 to Cornerstone Financial
Advisors, the financial advisor of the Owner
Participant;
(iii) Lessee shall pay on an After Tax Basis the
financial advisory fee and the fee of Owner
Participant's legal counsel, the amortization
of which shall be reflected in Basic Rent and
Casualty Values. Notwithstanding anything to
the contrary in any of the Transaction
Documents, Lessee shall not pay on an After
Tax Basis (or otherwise indemnify the Owner
Participant for) the $160,000 fee to the
Owner Participant;
(iv) In the event that the legal expenses of the
Owner Participant's legal counsel or the
financial advisory fee shall exceed the
amounts set forth above, any such excess
amounts, together with any other fees,
expenses or disbursements of Owner
Participant shall be for the account of the
Owner Participant, shall not be reimbursable
by the Lessee, and shall be disregarded for
the purposes of the Tax Indemnity Agreement;
(v) Lessee shall not be required to reimburse the
Owner Participant for any other fees,
expenses, disbursements or costs, whether
payable under Section 14(b)(g)(ii) of the
Participation Agreement or otherwise payable
in connection with the refunding contemplated
herein.
SECTION 7. Miscellaneous.
(a) Execution. This Refunding Agreement may be
executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed
and delivered, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
(b) Governing Law. This Refunding Agreement has been
negotiated and delivered in the State of New York and shall be
governed by, and be construed in accordance with, the laws of the
State of New York.
(c) Notices to Owner Participant. In accordance with
Section 18 of the Participation Agreement, the Owner Participant
does hereby designate that all communications, notices and
consents to the Owner Participant provided for in the
Participation Agreement shall be addressed as follows unless and
until the Owner Participant shall hereafter designate another
address in accordance with such Section 18:
Resources Capital Management Corporation
One Riverfront Plaza
9th Floor
Newark, New Jersey 07102
Telephone: (201) 596-6711
Telecopy: (201) 596-6701
All payments required to be made to the "Owner
Participant" under any Transaction Document shall be made to the
following account unless and until the Owner Participant shall
hereafter designate another account for such purpose: The Chase
Manhattan Bank, N.A., A/C #910-2-546562, ABA #021000021
(Resources Capital Management Corporation (notify Eileen A.
Moran)).
(d) Concerning the Owner Trustee. MTC and Stephen J.
Kaba are entering into this Refunding Agreement solely as Owner
Trustee under the Trust Agreement and not in their individual
capacities. Anything herein to the contrary notwithstanding, all
and each of the agreements herein made on the part of the Owner
Trustee are made and intended not as personal agreements of MTC
and Stephen J. Kaba but are made and intended for the purpose of
binding only the Trust Estate.
(e) Concerning the Indenture Trustee. BTC and Stanley
Burg are entering into this Refunding Agreement solely as
Corporate Indenture Trustee and Individual Indenture Trustee,
respectively, under the Indenture and not in their individual
capacities. Anything herein to the contrary notwithstanding, all
and each of the respective agreements herein made on the part of
the Corporate Indenture Trustee and Individual Indenture Trustee,
respectively, are made and intended not as personal agreements
for BTC and Stanley Burg, as the case may be, but are made and
intended solely as the agreements of the Corporate Indenture
Trustee and the Individual Indenture Trustee pursuant to the
Indenture, in the exercise of the powers and authority conferred
and vested in the Corporate Indenture Trustee and Individual
Indenture Trustee, respectively,pursuant to the Indenture.
(f) Owner Trustee's, Owner Participant's and Indenture
Trustee's Obligations. The obligations and duties of the Owner
Trustee, the Owner Participant and the Indenture Trustee under
this Agreement are limited to those expressly set forth herein as
obligations of the Owner Trustee, the Owner Participant and the
Indenture Trustee, respectively. Without limiting the generality
of the foregoing, neither the Owner Trustee nor the Owner
Participant shall have any obligations or duties with respect to
the redemption of the bonds issued by Original Funding
Corporation or the issuance of the Bonds.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized.
RESOURCES CAPITAL MANAGEMENT CORPORATION
as Owner Participant
By
Name:
Title:
GG1B FUNDING CORPORATION
By
Name:
Title:
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the
Trust Agreement
By
Name:
Title:
By
STEPHEN J. KABA, not in his
individual capacity, but
solely as Individual Owner
Trustee under the Trust
Agreement
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Corporate Indenture Trustee
By
Name:
Title: Vice President
STANLEY BURG, not in his individual
capacity but solely as Individual
Indenture Trustee
SYSTEM ENERGY RESOURCES, INC., as
Lessee
By
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
Part I. Land Record Filings.
A. Chancery Clerk, Claiborne County, Mississippi
1. Lease Supplement No. 2 to the Facility Lease.
2. Supplemental Indenture No. 2 to the Indenture.
3. Collateral Trust Indenture.
4. Supplemental Indenture No. 1 to the Collateral
Trust Indenture.
Part II. Uniform Commercial Code Filings.
A. Chancery Clerk, Claiborne County, Mississippi:
1. UCC-3 to amend the UCC-l filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-l with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 2 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
B. Chancery Clerk, Hinds County, Mississippi:
1. UCC-3 to amend the UCC-1 filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-l with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
C. Mississippi Secretary of State.
1. UCC-3 to amend the UCC-l filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
D. Secretary of State of Delaware.
UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
E. Secretary of State of New York.
UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
<PAGE>
Schedule 2
Additional Pricing Assumptions
Basic Rent, Casualty Values and Special Casualty
Values, as set forth in the Facility Lease, as amended by
Supplement No. 2, dated as of January 1, 1994, for dates
occurring after the Refunding Date set forth below, have been
computed on the basis of the following additional pricing
assumptions which hereby supplement and amend Schedule 5 to the
Participation Agreement:
1. Refunding Date: January 18, 1994
2. Interest Rate on and Amortization of Notes:
See Supplemental Indenture No. 2, dated
as of January 1, 1994.
3. Refunding Expenses:
a) $3,006,038.39 paid by the Lessee on the Refunding Date
on an After-Tax Basis (amortized on a
straight-line basis during the period
commencing on the Refunding Date and
ending on the last day of the Basic
Lease Term).
b) $25,935,493.05 paid by the Lessee on the Refunding Date
in respect of the premium on the Notes
redeemed on the Refunding Date.
c) $160,000 fee paid to Owner Participant on the
Refunding Date not to be taken into account
for pricing assumptions.
4. Additional Basic Rent: $328,776.91 as interest from
January 15, 1994 to the Refunding
Date on Notes which are redeemed on
the Refunding Date.
5. Owner Participant's
Marginal Federal Tax Rate: 35% (subject to proviso
contained in Section 3(d) of
the Lease).
Exhibit B-11(b)
REFUNDING AGREEMENT NO. 2-A
dated as of January 1, 1994
among
TEXTRON FINANCIAL CORPORATION,
as Owner Participant and Approved Transferee of
Lease Management Realty Corporation IV,
the Original Owner Participant
GG1B Funding Corporation,
as Funding Corporation
MERIDIAN TRUST COMPANY,
as Corporate Owner Trustee under Trust Agreement No. 2, dated as
of
December 1, 1988, with the Individual Owner Trustee and the Owner
Participant, as successor in interest to the Original Owner
Participant,
STEPHEN J. KABA,
as successor Individual Owner Trustee under Trust Agreement No.
2, dated as of December 1, 1988, with the Corporate Owner
Trustee and the Owner Participant, as successor in interest to
the
Original Owner Participant,
BANKERS TRUST COMPANY,
as Corporate Indenture Trustee under Trust Indenture, Deed of
Trust,
Mortgage, Security Agreement and Assignment of Facility Lease No.
2,
dated as of December l, 1988, as supplemented, with the
Individual Indenture
Trustee and the Owner Trustee,
STANLEY BURG,
as Individual Indenture Trustee under Trust Indenture, Deed of
Trust, Mortgage, Security Agreement and Assignment of Facility
Lease
No. 2, dated as of December 1, 1988, as supplemented, with the
Corporate Indenture Trustee and the Owner Trustee,
and
SYSTEM ENERGY RESOURCES, INC.,
as Lessee
<PAGE>
REFUNDING AGREEMENT NO. 2-A, dated as of January 1,
1994, ("Refunding Agreement") among TEXTRON FINANCIAL
CORPORATION, a Delaware corporation (the "Owner Participant") as
Approved Transferee (such term, and other capitalized terms used
herein without definition, being defined as provided in Section
1) of Lease Management Realty Corporation IV, the Original Owner
Participant, GG1A FUNDING CORPORATION, a Delaware corporation
(the "Original Funding Corporation"), GG1B FUNDING CORPORATION, a
Delaware corporation (the "Funding Corporation"), MERIDIAN TRUST
COMPANY, a Pennsylvania trust company, not in its individual
capacity, but solely as Corporate Owner Trustee under the Trust
Agreement, STEPHEN J. KABA, not in his individual capacity, but
solely as successor Individual Owner Trustee under the Trust
Agreement, BANKERS TRUST COMPANY, a New York banking corporation,
not in its individual capacity but solely as Corporate Indenture
Trustee under the Indenture, STANLEY BURG, not in his individual
capacity but solely as Individual Indenture Trustee under the
Indenture, and SYSTEM ENERGY RESOURCES, INC., an Arkansas
corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the parties to this Refunding Agreement other
than the Funding Corporation are parties to Participation
Agreement No. 2, dated as of December 1, 1988 (the "Participation
Agreement"), among the Lessee, the Original Funding Corporation,
the Owner Participant, as successor in interest to the Original
Owner Participant, the Corporate Owner Trustee, the Individual
Owner Trustee, the Corporate Indenture Trustee, the Individual
Indenture Trustee and the Original Loan Participants named
therein; and
WHEREAS, the Initial Series Notes were issued by the
Owner Trustee in connection with the acquisition of the Undivided
Interest; and
WHEREAS, on April 13, 1989 the Original Funding
Corporation utilized the proceeds of a series of Bonds issued by
it to make a Refunding Loan to the Owner Trustee and the Owner
Trustee issued Fixed Rate Notes to refund the Initial Series
Notes; and
WHEREAS, Section 2(d) of the Participation Agreement
provides for a refunding of the Notes theretofore issued and then
Outstanding upon the satisfaction of the conditions set forth in
Sections 2 and 11(c) of the Participation Agreement; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return of the Owner
Participant in the event of the issuance of Fixed Rate Notes; and
WHEREAS, on December 14, 1993, at the direction of the
Lessee and the Owner Participant, the Owner Trustee gave the
Indenture Trustee notice of prepayment, which notice provided, in
accordance with Section 3.9(c) of the Indenture, that such
prepayment is conditional upon the receipt by the Indenture
Trustee on or prior to the Refunding Date, of moneys sufficient
to pay the principal of, and the premium, if any, and interest on
the Outstanding Notes and that if such moneys shall not have been
so received, said notice shall be of no force and effect and the
Owner Trustee shall not be required to prepay the Outstanding
Notes, on January 18, 1994 of the Outstanding Notes and the
Original Funding Corporation gives notice to the Collateral Trust
Trustee of the redemption on January 18, 1994 of the Bonds
Outstanding, which notice was correspondingly conditional; and
WHEREAS, the parties hereto wish to cause the issuance
of a new series of Fixed Rate Notes (the "Refunding Notes") in
order to refund the Outstanding Notes and redeem the outstanding
Bonds; and
WHEREAS, the Lessee has filed with the Securities and
Exchange Commission a Registration Statement on Form S-3 (Reg.
No. 33-51175) relating to the New Bonds, which Registration
Statement became effective on December 28, 1993; and
WHEREAS, Section 10.1(viii) of the Indenture provides,
among other things, that the Owner Trustee and Indenture Trustee
may, without consent of the Holders of Notes Outstanding, execute
a supplement to the Indenture in order to evidence the issuance
of and to provide the terms of Additional Notes; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Indenture Trustee intend to execute
Supplemental Indenture No. 2 to the Indenture, dated as of
January 1, 1994 ("Supplemental Indenture No. 2"), providing for
the issuance under the Indenture of Refunding Notes as
contemplated in Supplemental Indenture No. 2; and
WHEREAS, Section 10.2(ii) of the Indenture provides,
among other things, that, upon receipt of a written instruction
from the Lessee and the Owner Trustee, the Indenture Trustee
shall consent to certain amendments of the Facility Lease; and
WHEREAS, subject to the conditions set forth herein,
the Owner Trustee and the Lessee intend to execute Lease
Supplement No. 2 to the Facility Lease, dated as of January 1,
1994 ("Lease Supplement No. 2"), to amend certain schedules
thereto;
WHEREAS, subject to the conditions set forth herein,
the Owner Participant and the Lessee intend to execute Amendment
No. 1 dated as of January 1, 1994 to the Tax Indemnity Agreement
No. 2 ("TIA Amendment No. 1"), to amend certain provisions of the
Tax Indemnity Agreement;
WHEREAS, Basic Rent and the Value Schedules, as set
forth in Lease Supplement No. 2, have been adjusted to take into
effect, among other things, the additional Tax Assumptions set
forth on TIA Amendment No. 1 and the additional Pricing
Assumptions set forth on Schedule 2 hereto;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein shall have the respective meanings
assigned to such terms as set forth in Appendix A to the
Participation Agreement.
SECTION 2. Agreement of Funding Corporation.
(a) Subject to the terms and conditions hereof and of
Section 2 and 11(c) of the Participation Agreement, on the
Refunding Date, Funding Corporation shall make a Refunding Loan
to the Owner Trustee by paying to the Indenture Trustee for the
account of the Owner Trustee immediately available funds in an
amount equal to $87,093,000. Proceeds of the Refunding Loan
shall be paid directly to a special account established by the
Owner Trustee with the Indenture Trustee and shall be applied as
set forth in Section 3(c)(ii).
(b) On and as of the Refunding Date, Original Funding
Corporation hereby assigns to Funding Corporation and Funding
Corporation hereby assumes all rights and obligations of Original
Funding Corporation under the Participation Agreement and
thereupon the Original Funding Corporation shall be released and
discharged from any further obligations under the Participation
Agreement. Notwithstanding the foregoing, Original Funding
Corporation shall continue to have the rights and obligations of
an Indemnitee under Section 13 of the Participation Agreement. On
and as of the Refunding Date (and for purposes of the definitions
contained in this Agreement on and as of the date of the
execution and delivery hereof), Appendix A to the Participation
Agreement shall be amended such that Funding Corporation, as
defined therein, shall mean GG1B Funding Corporation, a Delaware
corporation (it being understood that the reference to "Funding
Corporation" in Section 11(c) of the Participation Agreement
refers to GG1B Funding Corporation in the context of the
Refunding Loan contemplated hereby).
SECTION 3. Issuance of Refunding Notes by
Owner Trustee; Application of
Proceeds.
Subject to the terms and conditions hereof and of
Sections 2 and 11(c) of the Participation Agreement and Section
3.5 of the Indenture, on the Refunding Date, (a)(i) the Lessee
and the Lessor shall enter into Lease Supplement No. 2, (ii) the
Owner Trustee and the Indenture Trustee shall enter into
Supplemental Indenture No. 2, and (iii) the Lessee, the Funding
Corporation and the Collateral Trust Trustee shall enter into the
Collateral Trust Indenture and, subject to satisfaction of the
conditions therein set forth, Supplemental Indenture No. 1 to the
Collateral Trust Indenture ("Collateral Trust Supplement") and
(iv) the Lessee and the Owner Participant will enter into the TIA
Amendment No. 1, (b) the Lessee shall make a Supplemental Rent
payment pursuant to Section 3(b)(ii) of the Facility Lease in the
amount of $6,534,775.05, (c) upon receipt of the Refunding Loan
to be made by Funding Corporation in accordance with Section 2
hereof and such Supplemental Rent payment, the Indenture Trustee,
at the direction of the Owner Trustee, shall (i) authenticate and
deliver the Refunding Notes, in the aggregate principal amount of
the Refunding Loan and bearing interest at the rates per annum
and in the amounts, respectively, set forth in Supplemental
Indenture No. 2 and (ii) apply the proceeds of the Refunding Loan
to the prepayment in full of the principal of the Outstanding
Notes (it being understood that any accrued interest on the
Outstanding Notes shall be paid from the Rent payable by the
Lessee under the Facility Lease on the Refunding Date and that
the premium payable upon the prepayment of the Outstanding Notes
shall be paid from the Supplemental Rent payable by the Lessee in
accordance with clause (b) hereof under Section 3(b)(ii) of the
Facility Lease on the Refunding Date) and (d) Schedule 5 to the
Participation Agreement shall be amended to include the
additional Pricing Assumptions set forth on Schedule 2 hereof.
SECTION 4. Implementation.
(a) Forms. The forms of Supplemental Indenture No. 2,
Lease Supplement No. 2, the Collateral Trust Indenture and the
Collateral Trust Supplement and the TIA Amendment No. 1 are
attached hereto as Exhibits A, B, C, D and E respectively.
(b) Obligations of the Owner Participant. The Owner
Participant hereby directs the Owner Trustee to execute and
deliver this Refunding Agreement and, subject to the terms and
conditions of Sections 2(d) and 11(c) of the Participation
Agreement and Section 3.5 of the Indenture, and subject to the
Owner Trustee having received the Rent payments described in
Section 3, the Owner Participant hereby agrees that, on the
Refunding Date, it will execute and deliver TIA Amendment No. 1
and direct (i) the Owner Trustee to execute and deliver
Supplemental Indenture No. 2 and Lease Supplement No. 2
(collectively, with this Refunding Agreement and TIA Amendment
No. 1, the "Refunding Documents") in the forms of Exhibits A and
B hereto, respectively, (ii) the Corporate Owner Trustee to
execute Refunding Notes as contemplated by the Refunding
Documents and to request the Indenture Trustee (x) to
authenticate and deliver the Refunding Notes pursuant to Section
3.5 of the Indenture and (y) in view of the fact that Funding
Corporation is to pledge such Refunding Notes to the Collateral
Trust Trustee, to cause such Refunding Notes to be delivered
directly to, and registered in the name of, the Collateral Trust
Trustee and (iii) the Corporate Owner Trustee to execute and
deliver all other agreements, instruments and certificates
contemplated by the Transaction Documents, the Financing
Documents and the Refunding Documents.
(c) Instruction and Consent. Subject to satisfaction
of the terms and conditions of Section 2(d) and 11(c) of the
Participation Agreement and Section 3.5 of the Indenture, (x) in
accordance with Section 10.2(ii) of the Indenture, the Lessee and
the Owner Trustee hereby instruct the Indenture Trustee to
consent, effective as of the Refunding Date, to Lease Amendment
No. 2 and the Indenture Trustee hereby so consents and (y) in
accordance with Section 10.1(viii) of the Indenture, the Owner
Trustee and the Indenture Trustee hereby consent and agree to
execute and deliver Supplemental Indenture No. 2 on the Refunding
Date.
(d) Consent of Lessee. In accordance with Section
8(b)(2) of the Participation Agreement, the Lessee hereby
consents to the refunding of the Outstanding Notes as
contemplated hereby.
(e) Recordations and Filings. The Lessee agrees that
it will cause to be made the recordations and filings set forth
in Schedule 1 hereto and represents that such filings and
recordations are all the recordations and filings that are
necessary in order to preserve, protect and perfect the Owner
Trustee's right, title and interest in and to the Undivided
Interest, the Ground Lease Property and under the Facility Lease,
as amended by Lease Amendment No. 2, and the first and prior
security interest of the Indenture Trustee in the Lease Indenture
Estate under the Indenture, as amended by Supplemental Indenture
No. 2.
(f) Funding Corporation Consent. Pursuant to the
Collateral Trust Indenture, Funding Corporation shall assign to
the Collateral Trust Trustee all of Funding Corporation's right,
title and interest in and to the Refunding Notes, as security for
Funding Corporation's obligations under the Collateral Trust
Indenture and, therefore, Funding Corporation hereby consents to
the Owner Trustee's issuance of the Refunding Notes directly to
the Collateral Trust Trustee.
SECTION 5. Conditions Precedent.
(a) Conditions Precedent to Obligations of Funding
Corporation. The obligations of Funding Corporation and the
Lessee to take the actions specified in Sections 2 and 3 hereof
on the Refunding Date shall be subject to the following
conditions precedent:
(i) the Underwriting Agreement dated January 11,
1994 (the "Underwriting Agreement") among Funding
Corporation, the Lessee, Morgan Stanley & Co.
Incorporated, Bear, Stearns & Co. Inc. and Goldman,
Sachs & Co. (collectively, the "Underwriters") relating
to the offer and sale to the public of $435,102,000
aggregate principal amount of Secured Lease Obligation
Bonds of Funding Corporation (the "Bonds") shall have
been executed and delivered;
(ii) the Underwriters shall have purchased the
Bonds pursuant to the Underwriting Agreement; and
(iii) the conditions set forth in Sections 2 and
11(c) of the Participation Agreement and in the
Underwriting Agreement shall have been satisfied.
(b) Conditions Precedent to Obligations of the Owner
Trustee. The obligations of the Owner Trustee to issue and
deliver the Refunding Notes to the Collateral Trust Trustee, as
assignee of Funding Corporation on the Refunding Date in
consideration of the Refunding Loan shall be subject to (x) the
simultaneous performance by Funding Corporation of its
obligations under Sections 2 and 3 hereof and the payment by the
Lessee of Basic Rent, the prepayment of Basic Rent, and
Supplemental Rent referred to in Section 3 hereof, (y) the
satisfaction of the conditions set forth in Sections 2 and 11(c)
of the Participation Agreement and Section 3.5 of the Indenture
to the participation by the Owner Trustee in the transactions
contemplated by this Refunding Agreement and (z) receipt of a
direction from the Owner Participant to the effect set forth in
Section 4(b) hereof.
(c) Conditions Precedent to Obligations of the
Indenture Trustee. The obligations of the Indenture Trustee to
take the action required by Section 3 hereof on the Refunding
Date shall be subject to the satisfaction of the conditions set
forth in Section 3.5 of the Indenture.
SECTION 6. Expenses.
The Lessee hereby affirms that it shall pay, as
Supplemental Rent pursuant to Section 14(b)(ii)(g) of the
Participation Agreement, all reasonable fees, expenses,
disbursements and costs (including legal and other professional
fees and expenses) incurred by the Owner Participant, the Owner
Trustee, the Indenture Trustee and the Collateral Trust Trustee
in connection with the refunding contemplated hereby; provided,
however, that:
(i) Lessee shall pay a fee of $90,000 to the
Owner Participant in connection with the
refinancing;
(ii) Lessee shall pay a financial advisory fee of
$30,000 to Cornerstone Financial Advisors,
the financial advisor of the Owner
Participant;
(iii) Lessee shall pay on an After Tax Basis the
financial advisory fee and $50,000 of the fee
payable to the Owner Participant, the
amortization of which shall be reflected in
Basic Rent and Casualty Values.
Notwithstanding anything to the contrary in
any of the Transaction Documents, Lessee
shall not pay on an After Tax Basis (or
otherwise indemnify the Owner Participant
for) the $40,000 of the fee to the Owner
Participant;
(iv) In the event that the financial advisory fee
shall exceed the amounts set forth above, any
such excess amounts, together with any other
fees, expenses or disbursements of Owner
Participant (including without limitation the
fees and disbursements of legal counsel for
the Owner Participant shall be for the
account of the Owner Participant, shall not
be reimbursable by the Lessee, and shall be
disregarded for the purposes of the Tax
Indemnity Agreement;
(v) Lessee shall not be required to reimburse the
Owner Participant for any other fees,
expenses, disbursements or costs, whether
payable under Section 14(b)(g)(ii) of the
Participation Agreement or otherwise payable
in connection with the refunding contemplated
herein.
SECTION 7. Miscellaneous.
(a) Execution. This Refunding Agreement may be
executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed
and delivered, shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
(b) Governing Law. This Refunding Agreement has been
negotiated and delivered in the State of New York and shall be
governed by, and be construed in accordance with, the laws of the
State of New York.
(c) Notices to Owner Participant. In accordance with
Section 18 of the Participation Agreement, the Owner Participant
does hereby designate that all communications, notices and
consents to the Owner Participant provided for in the
Participation Agreement shall be addressed as follows unless and
until the Owner Participant shall hereafter designate another
address in accordance with such Section 18:
Textron Financial Corporation
10 Dorrance Street
Post Office Box 6687
Providence, Rhode Island 02940-6687
Attention: Vice President - Law
Telephone: (401) 272-8000
Telecopy: (401) 751-1239
All payments required to be made to the "Owner
Participant" under any Transaction Document shall be made to the
following account unless and until the Owner Participant shall
hereafter designate another account for such purpose: The Chase
Manhattan Bank (National Association), One Chase Manhattan Plaza,
New York, New York 10004, Attention: Account No. #910-2-414969,
ABA #021-000-021 (Textron Financial Corporation (notify James E.
McGeary)).
(d) Concerning the Owner Trustee. MTC and Stephen J.
Kaba are entering into this Refunding Agreement solely as Owner
Trustee under the Trust Agreement and not in their individual
capacities. Anything herein to the contrary notwithstanding, all
and each of the agreements herein made on the part of the Owner
Trustee are made and intended not as personal agreements of MTC
and Stephen J. Kaba but are made and intended for the purpose of
binding only the Trust Estate.
(e) Concerning the Indenture Trustee. BTC and Stanley
Burg are entering into this Refunding Agreement solely as
Corporate Indenture Trustee and Individual Indenture Trustee,
respectively, under the Indenture and not in their individual
capacities. Anything herein to the contrary notwithstanding, all
and each of the respective agreements herein made on the part of
the Corporate Indenture Trustee and Individual Indenture Trustee,
respectively, are made and intended not as personal agreements
for BTC and Stanley Burg, as the case may be, but are made and
intended solely as the agreements of the Corporate Indenture
Trustee and the Individual Indenture Trustee pursuant to the
Indenture, in the exercise of the powers and authority conferred
and vested in the Corporate Indenture Trustee and Individual
Indenture Trustee, respectively,pursuant to the Indenture.
(f) Owner Trustee's, Owner Participant's and Indenture
Trustee's Obligations. The obligations and duties of the Owner
Trustee, the Owner Participant and the Indenture Trustee under
this Agreement are limited to those expressly set forth herein as
obligations of the Owner Trustee, the Owner Participant and the
Indenture Trustee, respectively. Without limiting the generality
of the foregoing, neither the Owner Trustee nor the Owner
Participant shall have any obligations or duties with respect to
the redemption of the bonds issued by Original Funding
Corporation or the issuance of the Bonds.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement to be duly executed by their respective
officers thereunto duly authorized.
TEXTRON FINANCIAL CORPORATION
as Owner Participant
By
Name:
Title:
GG1B FUNDING CORPORATION
By
Name:
Title:
MERIDIAN TRUST COMPANY, not in its
individual capacity, but solely as
Corporate Owner Trustee under the
Trust Agreement
By
Name:
Title:
By
STEPHEN J. KABA, not in his
individual capacity, but
solely as Individual Owner
Trustee under the Trust
Agreement
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Corporate Indenture Trustee
By
Name:
Title: Vice President
STANLEY BURG, not in his individual
capacity but solely as Individual
Indenture Trustee
SYSTEM ENERGY RESOURCES, INC., as
Lessee
By
Name:
Title:
<PAGE>
SCHEDULE 1
Recordations and Filings
Part I. Land Record Filings.
A. Chancery Clerk, Claiborne County, Mississippi
1. Lease Supplement No. 2 to the Facility Lease.
2. Supplemental Indenture No. 2 to the Indenture.
3. Collateral Trust Indenture.
4. Supplemental Indenture No. 1 to the Collateral
Trust Indenture.
Part II. Uniform Commercial Code Filings.
A. Chancery Clerk, Claiborne County, Mississippi:
1. UCC-3 to amend the UCC-l filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-l with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 2 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
B. Chancery Clerk, Hinds County, Mississippi:
1. UCC-3 to amend the UCC-1 filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-l with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
C. Mississippi Secretary of State.
1. UCC-3 to amend the UCC-l filed with respect to the
Facility Lease naming SERI as Lessee and the Owner
Trustee as Lessor, attaching thereto Lease
Supplement No. 2 to the Facility Lease.
2. UCC-3 to amend the UCC-l filed with respect to the
Indenture, naming the Owner Trustee as debtor and
the Indenture Trustee as secured party in respect
of the Lease Indenture Estate, attaching thereto
Supplemental Indenture No. 2 to the Indenture.
3. UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
D. Secretary of State of Delaware.
UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
E. Secretary of State of New York.
UCC-1 with respect to the Collateral Trust
Indenture, as amended by Supplemental Indenture
No. 1 thereto, naming GG1B Funding Corporation as
debtor and Bankers Trust Company, Trustee, as
secured party.
<PAGE>
Schedule 2
Additional Pricing Assumptions
Basic Rent, Casualty Values and Special Casualty
Values, as set forth in the Facility Lease, as amended by
Supplement No. 2, dated as of January 1, 1994, for dates
occurring after the Refunding Date set forth below, have been
computed on the basis of the following additional pricing
assumptions, which hereby supplement and amend Schedule 5 to the
Participation Agreement:
1. Refunding Date: January 18, 1994
2. Interest Rate on and Amortization of Notes:
See Supplemental Indenture No. 2, dated
as of January 1, 1994.
3. Refunding Expenses:
a) $770,780.85 paid by the Lessee on the Refunding Date
on an After-Tax Basis (amortized on a
straight-line basis during the period
commencing on the Refunding Date and
ending on the last day of the Basic
Lease Term).
b) $6,534,775.05 paid by the Lessee on the Refunding Date
in respect of the premium on the Notes
redeemed on the Refunding Date.
c) $40,000 fee paid to Owner Participant on the
Refunding Date not to be taken into account
for pricing assumptions.
4. Additional Basic Rent: $82,331.15 as interest from
January 15, 1994 to the Refunding
Date on Notes which are redeemed on
the Refunding Date.
5. Owner Participant's
Marginal Federal Tax Rate: 35% (subject to proviso
contained in Section 3(d) of
the Lease).
Exhibit B-12(a)
AMENDMENT NO. 1
dated as of January 1, 1994
to
TAX INDEMNITY AGREEMENT
dated as of December 1, 1988
between
TEXTRON FINANCIAL CORPORATION
as Beneficiary under a Trust Agreement,
dated as of December 1, 1988
with
MERIDIAN TRUST COMPANY,
AS OWNER TRUSTEE,
Lessor,
and
SYSTEM ENERGY RESOURCES, INC.
Lessee
<PAGE>
AMENDMENT No. 1, dated as of January 1, 1994, to the Tax
Indemnity Agreement dated as of December 1, 1988, between Textron
Financial Corporation] (the Owner Participant), with Meridian
Trust Company, as Owner Trustee under a Trust Agreement, dated as
of December 1, 1988 (the Lessor) and System Energy Resources,
Inc. (the Lessee). Capitalized terms not otherwise defined
herein shall have the respective meanings specified in Appendix A
to the Participation Agreement, as amended through and including
the date hereof and the Refunding Agreement No. 2-A (the
Refunding Agreement).
W I T N E S S E T H:
A. The Owner Trustee, as Lessor, and the Lessee are
parties to the Facility Lease, whereby the Lessor, as
lessor, has leased the Undivided Interest to the Lessee, as
lessee.
B. The Basic Rent payable by the Lessee under Section
3(e) of the Facility Lease, as adjusted pursuant to Lease
Supplement No. 2, dated as of the date hereof, has been
determined in part on the assumption that the Owner
Participant will be entitled to certain Federal income tax
benefits;
C. In connection with the issuance of the Refunding
Notes and the Bonds, as contemplated by the Refunding
Agreement, dated as of the date hereof, the parties hereto
desire to amend the circumstances under which the Lessee
shall be required to indemnify the Owner Participant for the
loss of tax benefits;
NOW, THEREFORE, in consideration of the mutual
covenants contained herein and in the documents referred to
above, the parties hereby agree as follows:
Section 1. Amendments
(a) The Tax Indemnity Agreement is hereby amended by
inserting "and/or the Refunding Documents" after the term
"Transaction Documents" throughout the Agreement.
(b) Section 1.1(h) of the Tax Indemnity Agreement is
amended by the deletion of "and (vi)" and the substitution,
in lieu thereof, of ", (vi) payment of Supplemental Rent in
the amount of $6,534,775.05, as contemplated by Section 3 of
the Refunding Agreement in the year that such payment is
made, and (vii)".
(c) Section 1.1 (i) of the Tax Indemnity Agreement is
amended to read as follows:
"(i) The Owner Participant's marginal
federal rate of tax is 34% for the taxable
year that includes the Closing Date and for
each taxable year which ends thereafter but
on or before December 31, 1992; and is 35%
for the taxable year that ends on December
31, 1993 and for each taxable year
thereafter."
(d) Section 1.1 of the Tax Indemnity Agreement is
amended by the addition of the following new paragraphs (o)
and (p):
"(o) The Owner Participant will be allowed a
current deduction in the taxable year of the
Owner Participant that includes the Refunding
Date in an amount equal to the excess of the
amount paid in redemption of the Bonds on
that Date over the unpaid principal and
accrued interest on such Bonds as of the
Refunding Date (the Premium Deduction).
(p) The Owner Participant will be entitled
to deduct the fees, costs and expenses
referred to in Section 6 of the Refunding
Agreement, other than those referred to in
the second sentence of subparagraph (iii)
thereof (the Refund Transaction Expenses) on
a straight-line basis over the period that
commences on the Refunding Date and concludes
on the last day of the Basic Lease Term (the
Refunding Amortization Deductions)."
(e) The final paragraph of Section 1.1 of the Tax
Indemnity Agreement is amended by the deletion of "(n)" and
the substitution, in lieu thereof, of "(p)".
(f) Section 3.1(a)(2)(A) of the Tax Indemnity
Agreement is amended by the deletion of "or the Interest
Deductions" and the substitution, in lieu thereof, of "the
Interest Deductions, the Premium Deduction, or the Refunding
Amortization Deductions".
(g) Section 1.2(d) of the Tax Indemnity Agreement is
amended by inserting "the Premium Deduction, the Refunding
Amortization Deductions," immediately after the phrase "the
Amortization Deductions,".
(h) Sections 6(a)(i) and 6(b) of the Tax Indemnity
Agreement are amended by replacing the phrase "or the
Interest Deductions" with the phrase ", the Interest
Deductions, the Premium Deduction, or the Refunding
Amortization Deductions".
Section 2. Miscellaneous.
(a) Execution. This Amendment No. 1 may be executed
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Although
this Amendment No. 1 is dated as of the date first above written
for convenience, the actual dates of the execution hereof by the
parties hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 1 shall be effective on
the latest of such dates.
(b) Governing Law. This Amendment No. 1 has been
negotiated and delivered in the State of New York and shall be
governed by, and be construed in accordance with, the law of the
State of New York.
<PAGE>
IN WITNESS WHEREOF, intending to be legally bound, each
of the parties hereto has caused this Amendment No. 1 to Tax
Indemnity Agreement to be duly executed by an officer thereunto
duly authorized.
TEXTRON FINANCIAL CORPORATION
By
Name:
Title:
Date:
SYSTEM ENERGY RESOURCES, INC.
By
Name:
Title:
Date:
Exhibit B-12(b)
AMENDMENT NO. 1
dated as of January 1, 1994
to
TAX INDEMNITY AGREEMENT
dated as of December 1, 1988
between
RESOURCES CAPITAL MANAGEMENT CORPORATION
as Beneficiary under a Trust Agreement,
dated as of December 1, 1988
with
MERIDIAN TRUST COMPANY,
AS OWNER TRUSTEE,
Lessor,
and
SYSTEM ENERGY RESOURCES, INC.
Lessee
<PAGE>
AMENDMENT No. 1, dated as of January 1, 1994, to the Tax
Indemnity Agreement dated as of December 1, 1988, between Public
Service Resources Corporation (the Owner Participant), with
Meridian Trust Company, as Owner Trustee under a Trust Agreement,
dated as of December 1, 1988 (the Lessor) and System Energy
Resources, Inc. (the Lessee). Capitalized terms not otherwise
defined herein shall have the respective meanings specified in
Appendix A to the Participation Agreement, as amended through and
including the date hereof and the Refunding Agreement No. 1-A
(the Refunding Agreement).
W I T N E S S E T H:
A. The Owner Trustee, as Lessor, and the Lessee are
parties to the Facility Lease, whereby the Lessor, as
lessor, has leased the Undivided Interest to the Lessee, as
lessee.
B. The Basic Rent payable by the Lessee under Section
3(e) of the Facility Lease, as adjusted pursuant to Lease
Supplement No. 2, dated as of the date hereof, has been
determined in part on the assumption that the Owner
Participant will be entitled to certain Federal income tax
benefits;
C. In connection with the issuance of the Refunding
Notes and the Bonds, as contemplated by the Refunding
Agreement, dated as of the date hereof, the parties hereto
desire to amend the circumstances under which the Lessee
shall be required to indemnify the Owner Participant for the
loss of tax benefits;
NOW, THEREFORE, in consideration of the mutual
covenants contained herein and in the documents referred to
above, the parties hereby agree as follows:
Section 1. Amendments
(a) The Tax Indemnity Agreement is hereby amended by
inserting "and/or the Refunding Documents" after the term
"Transaction Documents" throughout the Agreement.
(b) Section 1.1(h) of the Tax Indemnity Agreement is
amended by the deletion of "and (vi)" and the substitution,
in lieu thereof, of ", (vi) payment of Supplemental Rent in
the amount of $25,935,493.05, as contemplated by Section 3
of the Refunding Agreement in the year that such payment is
made, and (vii)".
(c) Section 1.1 (i) of the Tax Indemnity Agreement is
amended to read as follows:
"(i) The Owner Participant's marginal
federal rate of tax is 34% for the taxable
year that includes the Closing Date and for
each taxable year which ends thereafter but
on or before December 31, 1992; and is 35%
for the taxable year that ends on December
31, 1993 and for each taxable year
thereafter."
(d) Section 1.1 of the Tax Indemnity Agreement is
amended by the addition of the following new paragraphs (o)
and (p):
"(o) The Owner Participant will be allowed a
current deduction in the taxable year of the
Owner Participant that includes the Refunding
Date in an amount equal to the excess of the
amount paid in redemption of the Bonds on
that Date over the unpaid principal and
accrued interest on such Bonds as of the
Refunding Date (the Premium Deduction).
(p) The Owner Participant will be entitled
to deduct the fees, costs and expenses
referred to in Section 6 of the Refunding
Agreement, other than those referred to in
the second sentence of subparagraph (iii)
thereof (the Refunding Transaction Expenses)
on a straight-line basis over the period that
commences on the Refunding Date and concludes
on the last day of the Basic Lease Term (the
Refunding Amortization Deductions)."
(e) The final paragraph of Section 1.1 of the Tax
Indemnity Agreement is amended by the deletion of "(n)" and
the substitution, in lieu thereof, of "(p)".
(f) Section 3.1(a)(2)(A) of the Tax Indemnity
Agreement is amended by the deletion of "or the Interest
Deductions" and the substitution, in lieu thereof, of "the
Interest Deductions, the Premium Deduction, or the Refunding
Amortization Deductions".
(g) Section 1.2(d) of the Tax Indemnity Agreement is
amended by inserting "the Premium Deduction, the Refunding
Amortization Deductions," immediately after the phrase "the
Amortization Deductions,".
(h) Sections 6(a)(i) and 6(b) of the Tax Indemnity
Agreement are amended by replacing the phrase "or the
Interest Deductions" with the phrase ", the Interest
Deductions, the Premium Deduction, or the Refunding
Amortization Deductions".
Section 2. Miscellaneous.
(a) Execution. This Amendment No. 1 may be executed
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Although
this Amendment No. 1 is dated as of the date first above written
for convenience, the actual dates of the execution hereof by the
parties hereto are respectively the dates set forth under the
signatures hereto, and this Amendment No. 1 shall be effective on
the latest of such dates.
(b) Governing Law. This Amendment No. 1 has been
negotiated and delivered in the State of New York and shall be
governed by, and be construed in accordance with, the law of the
State of New York.
<PAGE>
IN WITNESS WHEREOF, intending to be legally bound, each
of the parties hereto has caused this Amendment No. 1 to Tax
Indemnity Agreement to be duly executed by an officer thereunto
duly authorized.
RESOURCE CAPITAL MANAGEMENT CORPORATION
By
Name:
Title:
Date:
SYSTEM ENERGY RESOURCES, INC.
By
Name:
Title:
Date:
Exhibit F-1
New York, New York
January 18, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (1) the Application-Declaration
on Form U-1 (File No. 70-8215), as amended ("Application-
Declaration"), filed by System Energy Resources, Inc. ("System
Energy") with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act of
1935, as amended, contemplating, among other things, the
refunding of debt incurred in connection with the sale and
leaseback of a portion of System Energy's 90% undivided
ownership interest in Unit 1 of the Grand Gulf Steam Electric
Generating Station with the issuance and sale by GG1B Funding
Corporation of two separate series of Secured Lease Obligation
Bonds, (2) the Commission's Order, dated January 14, 1994
("Order") granting and permitting to become effective the
Application-Declaration and (3) System Energy's execution of a
Collateral Trust Indenture, a Supplemental Indenture No. 1 to
the Collateral Trust Indenture, an Underwriting Agreement, two
Refunding Agreements, two Lease Supplements to the Facility
Leases, two Supplemental Indentures to the Lease Indentures
and two amendments to System Energy's existing Tax Indemnity
Agreements in connection with said sale and leaseback, all as
referred to and more fully described in the Application-
Declaration (collectively, the "Transactions"). In connection
therewith, we advise you that, in our opinion:
1. System Energy is a corporation duly organized
and validly existing under the laws of the State of Arkansas.
2. The Transactions have been consummated in
accordance with the Application-Declaration and the Order.
3. All state laws applicable to the participation
by System Energy in the Transactions have been complied with
(other than so-called "blue sky" laws or similar laws, upon
which we do not pass herein).
4. The consummation of the Transactions has not
violated the legal rights of the holders of any securities
issued by System Energy or any associate company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. We
have made a study of the laws of other states insofar as they
are involved in the conclusions stated herein.
We consent to the use of this opinion as an exhibit
to the Certificate pursuant to Rule 24.
Very truly yours,
REID & PRIEST
