As filed with the Securities and Exchange Commission on July 20, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
System Energy Resources, Inc.
(Exact name of registrant as specified in its charter)
State of Arkansas 72-0752777
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
601-368-5000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
DONALD C. HINTZ WILLIAM J. REGAN, JR.
President and Chief Executive Vice President and Treasurer
Officer System Energy Resources, Inc.
System Energy Resources, Inc. 639 Loyola Avenue
1340 Echelon Parkway New Orleans, Louisiana 70113
Jackson, Mississippi 39213 504-576-4308
601-368-5000
LAURENCE M. HAMRIC, Esq.
DENISE C. REDMANN, Esq.
Entergy Services, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
504-576-2272
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. []
If any of the securities being registered on this Form are to
be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with
dividend or interest reimbursement plans, check the following
box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under
the Securities Act, please check the following box and list
the Securities Act registration statement
number of the earlier effective registration statement for the
same offering. [] _______________
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act,
check the following box and list the Securities Act
registration statement number of the earlier
effective registration statement for the same offering. []
_______________
If delivery of the prospectus is expected to be made pursuant
to Rule 434,
please check the following box. []
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each maximum maximum Amount of
class of offering aggregate registration
securities to Amount to be price offering fee
be registered registered per unit price (1)
(1)
Debt Securities $265,000,000 100% $265,000,000 $91,379.31
(1) Exclusive of accrued interest, if any, and estimated
solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement
on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further
amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
Subject to Completion,
Dated July 20, 1995
P R O S P E C T U S
$265,000,000
SYSTEM ENERGY RESOURCES, INC.
Debt Securities
_____________________________
System Energy Resources, Inc. ("System Energy" or the
"Company") intends to offer from time to time up to
$265,000,000 aggregate principal amount of unsecured debt
securities (the "Debt Securities") in one or more series, at
prices and upon terms to be determined at the time or times
of sale. For each issue of the Debt Securities (the
"Offered Securities") there will be a Prospectus Supplement
("Prospectus Supplement") accompanying this Prospectus that
will set forth, without limitation and to the extent
applicable, the specific designation, aggregate principal
amount, denomination, maturity, premium, if any, rate of
interest (which may be fixed or variable) or method of
calculation thereof, time of payment of interest, any terms
for redemption, any sinking fund provisions, the initial
public offering price, the names of any underwriters or
agents, the principal amounts, if any, to be purchased by
the underwriters, the compensation of such underwriters or
agents, the amount and proposed use of proceeds to the
Company from the Offered Securities, and any other special
terms of or pertinent information with respect to the
Offered Securities and the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities will be sold through one or more
underwriters, dealers or agents, or directly to one or more
purchasers. The Prospectus Supplement will set forth the
names of the underwriters, dealers or agents, if any, any
applicable commissions or discounts and the net proceeds to
the Company from any such sale of the Offered Securities.
See "Plan of Distribution."
_______________
The date of this Prospectus is ___________________, 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN
ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER
THE SECURITIES LAWS OF ANY SUCH STATE.
_______________
AVAILABLE INFORMATION
System Energy is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith
files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports
include information, as of particular dates, concerning the
Company's directors and officers, their remuneration, the
principal holders of the Company's securities and any
material interests of such persons in transactions with the
Company. Such reports and other information filed by the
Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street
N.W., Room 1024, Washington, D.C. 20549-1004; and at the
following Regional Offices of the Commission: Chicago
Regional Office, 500 W. Madison Street, Suite 1400, Chicago,
Illinois 60661, and New York Regional Office, 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of
such material can also be obtained at prescribed rates from
the Public Reference Branch of the Commission at its
principal office at 450 Fifth Street N.W., Washington, D.C.
20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for
the year ended December 31, 1994 ( the "1994 10-K").
2. The Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995.
In addition, all documents filed by the Company with
the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act after the date of this Prospectus and prior to
the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents (such
documents, and the documents enumerated above, being herein
referred to as "Incorporated Documents," provided, however,
that the documents enumerated above or subsequently filed by
the Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act prior to the filing of the Company's next
Annual Report on Form 10-K with the Commission shall not be
Incorporated Documents or be incorporated by reference in
this Prospectus or be a part hereof from and after any such
filing of an Annual Report on Form 10-K).
Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for all
purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed
Incorporated Document or in a Prospectus Supplement modifies
or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge
to each person, including any beneficial owner, to whom a
copy of this Prospectus has been delivered, on the written
or oral request of any such person, a copy of any or all of
the Incorporated Documents, other than exhibits to such
documents, unless such exhibits are specifically
incorporated by reference herein. Requests for such copies
should be directed to Christopher T. Screen, P.O. Box 61000,
New Orleans, La. 70161, telephone: (504) 576-4212.
No person has been authorized to give any information
or to make any representation not contained in this
Prospectus, as supplemented or amended, or with respect to
the Debt Securities, and, if given or made, such information
or representation must not be relied upon as having been
authorized by the Company or any other person. This
Prospectus does not constitute an offer to sell or a
solicitation of any offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it
is unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of
the Company since the date of this Prospectus.
<PAGE>
THE COMPANY
General
The Company's principal executive offices are located
at Echelon One, 1340 Echelon Parkway, Jackson, Mississippi
39213. The Company's telephone number is 601-368-5000. The
Company is a wholly-owned subsidiary of Entergy Corporation
("Entergy"), a registered public utility holding company
under the Public Utility Holding Company Act of 1935, as
amended, which also owns all of the common stock of Arkansas
Power & Light Company ("AP&L"), Gulf States Utilities
Company, Louisiana Power & Light Company ("LP&L"),
Mississippi Power & Light Company ("MP&L") and New Orleans
Public Service Inc. ("NOPSI"). Other subsidiaries of
Entergy include Entergy Services, Inc., a service company,
Entergy Operations, Inc., a nuclear management services
company ("Entergy Operations"), Entergy Power, Inc., a
wholesale power company, and Entergy Enterprises, Inc., a
non-utility company. AP&L, LP&L, MP&L and NOPSI own System
Fuels, Inc., which is responsible for the procurement,
transportation and storage of fuel supplies for their
generating plants.
Nature of the Company's Business
The Company's principal asset consists of a 90%
ownership/leasehold interest in Grand Gulf 1, a 1,250
megawatt ("MW") nuclear powered electric generating unit
near Port Gibson, Mississippi ("Grand Gulf 1"). The other
10% of Grand Gulf 1 is owned by South Mississippi Electric
Power Association, a wholesale cooperative in Mississippi.
The Company has approximately a 78.5% ownership interest and
an 11.5% leasehold interest in Grand Gulf 1. The Company
sells the capacity and energy from its 90% interest
exclusively to four affiliated companies that are also
subsidiaries of Entergy. These sales are made under the
Unit Power Sales Agreement among the Company, AP&L, LP&L,
MP&L and NOPSI (the "Unit Power Sales Agreement") which has
been approved by the Federal Energy Regulatory Commission
("FERC"). (See "-Source of Revenue" below.) At March 31,
1995, the Company had net utility plant of $2.7 billion,
long-term debt of $1.4 billion and common shareholder's
equity of $898 million.
The Company was formed in 1974 to construct, finance
and own certain base-load generating units for the operating
subsidiaries of Entergy. At that time, the Company
contracted with MP&L for MP&L to act as the Company's agent
for the design, construction, operation and maintenance of
the Grand Gulf Station, a proposed two-unit nuclear-powered
electric generating station having a capacity of 2,500 MW.
Grand Gulf 1 was placed in commercial operation on July 1,
1985. Construction of the proposed second unit of the Grand
Gulf Station ("Grand Gulf 2") was suspended in 1985 and this
unit was canceled and written off in 1989. On July 28,
1986, the Company's name was changed from "Middle South
Energy, Inc." to "System Energy Resources, Inc.," and
effective December 20, 1986, the Company assumed the primary
responsibilities, previously assigned to MP&L, for the
management, operation and maintenance of the Grand Gulf
Station. In 1990, Entergy Operations took over
responsibility for operating Grand Gulf 1.
Source of Revenue
The operating revenues of the Company are derived from
the allocation of the capacity and energy associated with
the Company's 90% share of Grand Gulf 1 pursuant to the Unit
Power Sales Agreement. Under that agreement, the Company
has agreed to sell all of its 90% owned and leased share of
capacity and energy from Grand Gulf 1 to AP&L, LP&L, MP&L
and NOPSI in accordance with specified percentages (AP&L
36%, LP&L 14%, MP&L 33% and NOPSI 17%) as ordered by FERC.
Charges under this agreement are paid in consideration for
the respective entitlements of AP&L, LP&L, MP&L and NOPSI to
receive capacity and energy, and are payable irrespective of
the quantity of energy delivered so long as the unit remains
in commercial operation. The current monthly obligation for
payments from AP&L, LP&L, MP&L and NOPSI to the Company
under the Unit Power Sales Agreement is approximately $49
million.
The financial condition of the Company depends
exclusively upon the receipt of payments from AP&L, LP&L,
MP&L and NOPSI and on the continued commercial operation of
Grand Gulf 1. AP&L, LP&L, MP&L and NOPSI currently have
retail rate structures sufficient to recover their costs
associated with their allocated share of capacity and energy
from Grand Gulf 1 under the Unit Power Sales Agreement, and
a return on equity.
The Unit Power Sales Agreement will remain in effect
until terminated by the parties (which termination would be
subject to FERC approval), which the Company expects to
occur upon Grand Gulf 1's retirement from service. In
general, approval by holders of any of the Company's
outstanding indebtedness for borrowed money would not be
required for termination, amendment or modification of the
Unit Power Sales Agreement. For further information with
respect to the Unit Power Sales Agreement, reference is made
to "Certain System Financial and Support Agreements," under
Part 1, Item 1 on page 11 of the 1994 10-K and to Note 7,
"Commitments and Contingencies" of the Company's Notes to
the 1994 Financial Statements on page 332 of the 1994 10-K.
Contractual Arrangements for the Benefit of Other Creditors
Substantially all of the Company's property is subject
to the lien of the Company's First Mortgage Bond Indenture.
In addition, certain indebtedness for borrowed money of the
Company, including its outstanding First Mortgage Bonds, is
secured by assignments of the Company's rights under the
Capital Funds Agreement, dated as of June 21, 1974, as
amended and supplemented, between the Company and Entergy
(the "Capital Funds Agreement") and under the Availability
Agreement, dated as of June 21, 1974, as amended, among the
Company, AP&L, LP&L, MP&L and NOPSI (the "Availability
Agreement").
Pursuant to the Capital Funds Agreement, Entergy has
agreed to supply to the Company sufficient capital to (1)
maintain the Company's equity capital at an amount equal to
a minimum of 35% of its total capitalization (excluding
short-term debt), and (2) permit the continuation of
commercial operation of Grand Gulf 1 and to pay in full all
indebtedness for borrowed money of the Company when due
under any circumstances.
Pursuant to the Availability Agreement, AP&L, LP&L,
MP&L and NOPSI are individually obligated to make payments
or subordinated advances to the Company in accordance with
stated percentages (AP&L 17.1%, LP&L 26.9%, MP&L 31.3% and
NOPSI 24.7%) in amounts that, when added to amounts received
under the Unit Power Sales Agreement or otherwise, are
adequate to cover all of the Company's (i) operating
expenses for the Grand Gulf Station, including depreciation
at a specified rate, (ii) interest charges, and (iii) an
amount sufficient to amortize the Company's investment in
Grand Gulf 2 over 27 years. Since commercial operation of
Grand Gulf 1 began, payments under the Unit Power Sales
Agreement to the Company have exceeded the amounts payable
under the Availability Agreement. Accordingly, no payments
under the Availability Agreement by AP&L, LP&L, MP&L and
NOPSI have ever been required.
The Capital Funds Agreement and the Availability
Agreement may be terminated, amended or modified by mutual
agreement of the parties thereto, and upon obtaining, if
required, the consent of those holders of the Company's
indebtedness then outstanding who have received assignments
of such agreements as described above. The Company's
obligation to pay when due the principal of and premium, if
any, and interest on the Debt Securities will not be secured
by any assets of the Company or by any pledge of the
Company's First Mortgage Bonds, nor by any assignment of the
Company's rights under the Capital Funds Agreement, the
Availability Agreement or the Unit Power Sales Agreement.
For further information with respect to these agreements,
reference is made to "Certain System Financial and Support
Agreements," under Part 1, Item 1 on page 11 of the 1994 10-
K, and to Note 7, "Commitments and Contingencies" of the
Company's Notes to the 1994 Financial Statements on page 332
of the 1994 10-K.
The information above relating to the Company does not
purport to be comprehensive and should be read together with
the financial statements and other information contained in
the Incorporated Documents. For further information
concerning Entergy, AP&L, LP&L, MP&L and NOPSI, reference is
made to the information relating to such companies contained
in the Annual Report on Form 10-K for the year ended
December 31, 1994 of Entergy, AP&L, LP&L, MP&L and NOPSI.
<PAGE>
USE OF PROCEEDS
Except as otherwise described in any Prospectus
Supplement, the net proceeds to be received from the
issuance and sale of the Offered Securities will be applied
primarily to the redemption, repurchase, repayment or
retirement of outstanding indebtedness of the Company.
RATIO OF EARNINGS TO FIXED CHARGES
March Twelve Months Ended
31, December 31,
1995 1994 1993 1992 1991 1990
Ratio of Earnings
to Fixed Charges(a) 1.47(b) 1.23(b) 1.87 2.04 1.74 2.10
_______________________
(a) "Earnings," as defined by Commission Regulation S-K,
represent the aggregate of (1) net income, (2) taxes
based on income, (3) investment tax credit adjustments-
net and (4) fixed charges. "Fixed Charges" include
interest (whether expensed or capitalized), related
amortization and interest applicable to rentals charged
to operating expenses.
(b) Earnings for the twelve months ended March 31, 1995
and December 31, 1994 include a charge of $80.2 million
as a result of the settlement of a long-standing dispute
at the Federal Energy Regulatory Commission (the "FERC
Settlement") involving income tax allocation procedures
of the Company. For further information with respect to
the FERC Settlement, reference is made to Note 2, "Rate
and Regulatory Matters," of the Company's Notes to the
1994 Financial Statements on page 327 of the 1994 10-K.
DESCRIPTION OF DEBT SECURITIES
Set forth below are certain general terms and
provisions of the Debt Securities, which may be issued from
time to time in one or more series. The particular terms of
each series of Offered Securities will be described in a
Prospectus Supplement relating thereto. Accordingly, for a
description of the terms of any particular series, reference
must be made to both the description set forth below and the
Prospectus Supplement relating thereto.
The statements under this heading do not purport to be
complete and are subject to the detailed provisions of an
Indenture to be dated as of August 1, 1995, (the
"Indenture") between the Company and Chemical Bank, as
trustee (the "Trustee"), a copy of which has been filed as
an exhibit to the Registration Statement of which this
Prospectus is a part. References in parentheses below refer
to section numbers in the Indenture and capitalized terms
not otherwise defined herein shall have the respective
meanings ascribed to them in the Indenture.
General
The Debt Securities may be issued in one or more new
series under the Indenture. The Indenture does not contain
any limitation on the principal amount of Debt Securities
which may be issued thereunder. The Debt Securities will be
unsecured obligations of the Company.
Reference is made to the Prospectus Supplement relating
to any particular series of Offered Securities for the
following terms, among others: (1) the title of such Debt
Securities; (2) any limit on the aggregate principal amount
of such Debt Securities or the series of which they are a
part; (3) the date or dates on which the principal of any of
such Debt Securities will be payable; (4) the rate or rates
at which any of such Debt Securities will bear interest, if
any, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such
interest will be payable and the Regular Record Date for any
such interest payable on any Interest Payment Date; (5) the
place or places where the principal of and premium, if any,
and interest on any of such Debt Securities will be payable;
(6) the period or periods within which, the price or prices
at which and the terms and conditions on which any of such
Debt Securities may be redeemed, in whole or in part, at the
option of the Company; (7) the obligation, if any, of the
Company to redeem or purchase any of such Debt Securities
pursuant to any sinking fund or analogous provision or at
the option of the Holder thereof, and the period or periods
within which, the price or prices at which and the terms and
conditions on which any of such Debt Securities will be
redeemed or purchased, in whole or in part, pursuant to any
such obligation; (8) the denominations in which any of such
Debt Securities will be issuable if other than denominations
of $1,000 and any integral multiple thereof; (9) if the
amount of principal of or any premium or interest on any of
such Debt Securities will be determined with reference to an
index or pursuant to a formula, the manner in which such
amounts will be determined; (10) if any such Debt Securities
will be issued in global form and, if so, any and all
matters incidental to such Debt Securities,; (11) any
addition to the Events of Default applicable to any of such
Debt Securities; (12) any addition to the covenants of the
Company for the benefit of the Holders of such Debt
Securities in the Indenture; and (13) any other terms of
such Debt Securities not inconsistent with the provisions of
the Indenture. (Section 301).
Form, Exchange and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities of each series will be
issuable only in fully registered form without coupons and
in denominations of $1,000 and any integral multiple
thereof. (Sections 201 and 302).
At the option of the Holder, subject to the terms of
the Indenture and the limitations applicable to global
securities, Debt Securities of any series will be
exchangeable for other Debt Securities of the same series,
of any authorized denomination and of like tenor and
aggregate principal amount (Section 305).
Subject to the terms of the Indenture and the
limitations applicable to global securities, Debt Securities
may be presented for exchange as provided above or for
registration of transfer (duly endorsed or accompanied by a
duly executed instrument of transfer) at the office of the
Security Registrar or at the office of any transfer agent
designated by the Company for such purpose. The Company may
designate itself the Security Registrar. No service charge
will be made for any registration of transfer or exchange of
Debt Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith. Such transfer or exchange
will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the
request. (Section 305). Any transfer agent (in addition to
the Security Registrar) initially designated by the Company
for any Debt Securities will be named in the applicable
Prospectus Supplement. The Company may at any time
designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the
office through which any transfer agent acts, except that
the Company will be required to maintain a transfer agent in
each Place of Payment for the Debt Securities of each
series. (Section 602).
The Company will not be required to (i) issue, register
the transfer of, or exchange any Debt Security or any
Tranche thereof during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of any such Debt Security called for redemption
and ending at the close of business on the day of such
mailing or (ii) register the transfer of or exchange any
Debt Security so selected for redemption, in whole or in
part, except the unredeemed portion of any such Debt
Security being redeemed in part. (Section 305).
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of interest on a Debt Security on any
Interest Payment Date will be made to the person in whose
name such Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus
Supplement, principal of and any premium and interest on the
Debt Securities of a particular series will be payable at
the office of such Paying Agent or Paying Agents as the
Company may designate for such purpose from time to time.
Unless otherwise indicated in the applicable Prospectus
Supplement, the corporate trust office of the Trustee in New
York City will be designated as the Company's sole Paying
Agent for payments with respect to Debt Securities of each
series. Any other Paying Agents initially designated by the
Company for the Debt Securities of a particular series will
be named in the applicable Prospectus Supplement. The
Company may at any time designate additional Paying Agents
or rescind the designation of any Paying Agent or approve a
change in the office through which any Paying Agent acts,
except that the Company will be required to maintain a
Paying Agent in each Place of Payment for the Debt
Securities of a particular series. (Section 602).
All moneys paid by the Company to a Paying Agent for
the payment of the principal of or any premium or interest
on any Debt Security which remain unclaimed at the end of
two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and
the Holder of such Debt Security thereafter may look only to
the Company for payment thereof. (Section 603).
Redemption
Any terms for the optional or mandatory redemption of
any series of Debt Securities will be set forth in the
applicable Prospectus Supplement. Except as shall otherwise
be provided in the applicable Prospectus Supplement with
respect to Debt Securities that are redeemable at the option
of the Holder, Debt Securities will be redeemable only upon
notice by mail not less than 30 nor more than 60 days' prior
to the date fixed for redemption, and, if less than all the
Debt Securities of a series, or any Tranche thereof, are to
be redeemed, the particular Debt Securities to be redeemed
will be selected by such method as shall be provided for any
particular series, or in the absence of any such provision,
by such method of random selection as the Security Registrar
deems fair and appropriate. (Section 403 and 404).
Any notice of redemption at the option of the Company
may state that such redemption will be conditional upon
receipt by the Paying Agent or Agents, on or prior to the
date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any,
on such Debt Securities and that if such money has not been
so received, such notice will be of no force and effect and
the Company will not be required to redeem such Debt
Securities (Section 404).
Events of Default
The Indenture defines the occurrence of any one or more
of the following events to be an "Event of Default":
(a) failure to pay any interest on any Debt
Security within sixty (60) days after the same
becomes due and payable;
(b) failure to pay the principal of or premium, if
any, on any Debt Security when due and payable;
(c) failure to perform or breach of any other
covenant or warranty of the Company in the Indenture
(other than a covenant or warranty of the Company in
the Indenture solely for the benefit of one or more
series of Debt Securities other than such series),
for 60 days after written notice to the Company by
the Trustee, or to the Company and the Trustee by
the Holders of at least 33% in principal amount of
the Debt Securities outstanding under the Indenture
as provided in the Indenture;
(d) certain events of bankruptcy, insolvency or
reorganization; or
(e) any other Event of Default specified with
respect to the Debt Securities (Section 801).
No Event of Default with respect to a particular series
of the Debt Securities necessarily constitutes an Event of
Default with respect to any other series of Debt Securities
that may be issued under the Indenture.
Remedies
If an Event of Default occurs and is continuing with
respect to Debt Securities of any series at the time
Outstanding, then either the Trustee or the Holders of not
less than 33% in principal amount of the Outstanding Debt
Securities of such series may declare the principal amount
(or if any of the Debt Securities of such series are
Discount Securities, such portion of the principal amount of
such Debt Securities as may be specified in the applicable
Prospectus Supplement) of all of the Debt Securities of such
series to be due and payable immediately; provided, however,
that if an Event of Default occurs and is continuing with
respect to more than one series of Debt Securities, the
Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Debt Securities of all
such series, considered as one class, may make such
declaration of acceleration, and not the Holders of the Debt
Securities of any one of such series.
At any time after the declaration of acceleration with
respect to the Debt Securities of any series has been made
and before a judgment or decree for payment of the money due
has been obtained by the Trustee, the Event of Default
giving rise to such declaration of acceleration will,
without further act, be deemed to have been waived, and such
declaration and its consequences will, without further act,
be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(1) all overdue interest on the Debt Securities
of such series;
(2) the principal of and premium, if any, on the
Debt Securities of such series which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities;
(3) interest upon overdue interest at the rate or
rates prescribed therefore in the Debt Securities
of such series, to the extent that payment of such
interest is lawful; and
(4) all amounts due to the Trustee under the
Indenture;
and
(b) any other Event or Events of Default with
respect to the Debt Securities of such series, other
than the nonpayment of the principal of the Debt
Securities of such Series which has become due
solely by such declaration of acceleration, have
been cured or waived as provided in the Indenture
(Section 802).
If an Event of Default occurs and is continuing with
respect to a series of Debt Securities, the Holders of a
majority in principal amount of the Outstanding Debt
Securities of such series will have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt
Securities of such series; provided, however, that if an
Event of Default occurs and is continuing with respect to
more than one series of Debt Securities issued under the
Indenture, the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of all such
series, considered as one class, will have the right to make
such direction, and not the Holders of the Debt Securities
of any one of such series; and provided, further, that (a)
such direction will not be in conflict with any rule of law
or with the Indenture and will not involve the Trustee in
personal liability in circumstances where reasonable
indemnity would not in the Trustee's sole discretion be
adequate and (b) the Trustee may take any other action it
deems proper which is not inconsistent with such direction
(Section 812).
The Holders of a majority in principal amount of the
then Outstanding Debt Securities of any series may waive any
past default under the Indenture except a default (a) in the
payment of the principal of or premium, if any, or interest,
if any, on any Debt Security of such series or (b) with
respect to a covenant or provision of the Indenture which
under the Indenture cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security
of such series affected (Section 813).
The right of a Holder of the Debt Securities to
institute a proceeding with respect to the Indenture is
subject to certain conditions precedent, but each Holder has
an absolute right to receive payment of principal and
premium, if any, and interest, if any, on or after the
applicable due date specified in such Debt Security and to
institute suit for the enforcement of any such payment
(Sections 807 and 808). The Indenture provides that the
Trustee, within 90 days after the occurrence of any default
thereunder with respect to the Debt Securities of any
series, is required to give the Holders of the Debt
Securities of such series notice of such default, unless
cured or waived; provided, however, that, except in the case
of a default in the payment of principal of or premium, if
any, or interest, if any, on the Debt Securities of such
series, the Trustee may withhold such notice if the Trustee
determines that it is in the interest of such Holders to do
so; and provided, further, that in the case of an Event of
Default of the character specified above in clause (c) under
"Events of Default," no such notice shall be given to such
Holders until at least 75 days after the occurrence thereof
(Section 902).
The Company will be required to furnish annually to the
Trustee a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Indenture, such
compliance to be determined without regard to any period of
grace or requirement of notice under the Indenture (Section
606).
Consolidation, Merger, Conveyance, Transfer or Lease
The Company will not consolidate with or merge into any
other corporation or convey, transfer, or lease its
properties and assets substantially as an entirety to any
Person unless (a) the corporation formed by such
consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which
leases, the property and assets of the Company substantially
as an entirety, is a Person organized and existing under the
laws of the United States of America, any State thereof or
the District of Columbia, and such Person expressly assumes,
by supplemental indenture, the due and punctual payment of
the principal of and premium, if any, and interest, if any,
on all the Outstanding Debt Securities and the performance
of all of the covenants of the Company under the Indenture,
(b) immediately after giving effect to such transactions, no
Event of Default, and no event which after notice and lapse
of time would become an Event of Default, will have occurred
and be continuing, and (c) the Company will have delivered
to the Trustee an Officer's Certificate and an Opinion of
Counsel as provided in the Indenture (Section 1101).
Modification of Indenture
Without the consent of any Holders of Debt Securities,
the Company and the Trustee may enter into one or more
supplemental indentures, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor
of the covenants of the Company in the Indenture and
the Debt Securities;
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Outstanding Debt Securities or to surrender any
right or power conferred upon the Company by the
Indenture;
(c) to add any additional Events of Default with
respect to all or any series of outstanding Debt
Securities;
(d) to change or eliminate any provision of the
Indenture or to add any provision to the Indenture;
provided that if such change, elimination or
addition will adversely affect the interests of the
Holders of Debt Securities of any series in any
material respect, such change, elimination or
addition will become effective with respect to such
series only when there is no Debt Security of such
series remaining Outstanding under the Indenture;
(e) to provide collateral security for the Debt
Securities;
(f) to establish the form or terms of Debt
Securities of any series as permitted by the
Indenture;
(g) to provide for the authentication and delivery
of bearer securities and coupons appertaining
thereto representing interest, if any, thereon and
for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders
thereof, and any matters incidental thereto;
(h) to evidence and provide for the acceptance of
appointment of a separate or successor Trustee under
the Indenture with respect to the Debt Securities of
one or more series and to add to or change any of
the provisions of the Indenture as shall be
necessary to provide for or to facilitate the
administration of the trusts under the Indenture by
more than one Trustee;
(i) to provide for the procedures required to
permit the utilization of a noncertificated system
of registration for any series of Debt Securities;
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Debt Securities shall
be payable, (2) all or any series of Debt Securities
may be surrendered for registration of transfer, (3)
all or any series of Debt Securities may be
surrendered for exchange, and (4) notices and
demands to or upon the Company in respect of all or
any series of Debt Securities may be served; or
(k) to cure any ambiguity, defect or inconsistency
or to make any other changes to the provisions of
the Indenture with respect to matters and questions
arising under the Indenture, provided such action
shall not adversely affect the interests of the
Holders of Debt Securities of any series in any
material respect (Section 1201).
The consent of the Holders of a majority in aggregate
principal amount of the Debt Securities of all series then
Outstanding under the Indenture, considered as one class, is
required for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions
of, the Indenture pursuant to an indenture or supplemental
indenture; provided, however, that if less than all of the
series of Debt Securities Outstanding under the Indenture
are directly affected by a supplemental indenture, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of all
series so directly affected, considered as one class, will
be required; and provided, further, that if the Debt
Securities of any series have been issued in more than one
Tranche and if the proposed supplemental indenture directly
affects the rights of the Holders of Debt Securities of one
or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of all
Tranches so directly affected, considered as one class, will
be required; and provided, further, that no such
supplemental indenture will, without the consent of the
Holder of each Outstanding Security under the Indenture of
each such series directly affected thereby, (a) change the
Stated Maturity of, or any installment of principal of or
interest on, any Debt Security, or reduce the principal
thereof or the rate of interest (or the amount of any
installment of interest thereon), if any, thereon or
redemption premium thereon, or change the method of
calculating the rate of interest thereon, or reduce the
amount of the principal of any Discount Security that would
be due and payable upon a declaration of acceleration of the
Maturity thereof, or change the coin or currency (or other
property) in which any Debt Security or any premium or the
interest thereon is payable or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity of any Debt Security (or, in the case of
redemption, on or after the Redemption Date), (b) reduce the
percentage in principal amount of the Debt Securities
Outstanding under such series, the consent of the Holders of
which is required for any supplemental indenture or waiver
of compliance with any provision of the Indenture or any
default thereunder and its consequences or to reduce the
requirements for quorum and voting under the Indenture, or
(c) modify certain of the provisions of the Indenture
relating to supplemental indentures, waivers of certain
covenants and waivers of past defaults.
A supplemental indenture which changes or eliminates
any covenant or other provision of the Indenture which has
expressly been included solely for the benefit of one or
more particular series of Debt Securities or one or more
Tranches thereof, or which modifies the rights of the
Holders of Debt Securities of such series or Tranches with
respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders
of Debt Securities of any other series or Tranche (Section
1202).
The Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding
Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under
the Indenture or whether a quorum is present at a meeting of
Holders of Debt Securities, (i) Debt Securities owned by the
Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all
Outstanding Debt Securities under the Indenture, or all
Outstanding Debt Securities of each such series and each
such Tranche, as the case may be, determined without regard
to this clause (i)) shall be disregarded and deemed not to
be Outstanding; (ii) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof as provided in the Indenture; and (iii) the
principal amount of a Debt Security denominated in one or
more foreign currencies or a composite currency that will be
deemed to be Outstanding will be the amount of Dollars which
could have been purchased by the principal amount (or, in
the case of a Debt Security described in clause (ii) above,
of the amount described in such clause) of such currency or
composite currency evidenced by such Debt Security.
(Section 101).
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
election, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be
Holders for the purposes of (i) determining whether Holders
of the requisite proportion of the Outstanding Debt
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act and for that purpose the Outstanding
Debt Securities shall be computed as of the record date or
(ii) determining which Holders may revoke any such Act..
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Debt Security and the
Holder of every Debt Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such
Debt Security. (Section 104).
Defeasance
Unless otherwise indicated in the applicable Prospectus
Supplement for a series of Offered Securities, any series of
Debt Securities, or any portion of the principal amount
thereof, will be deemed to have been paid for purposes of
the Indenture (except as to any surviving rights of
registration of transfer or exchange expressly provided for
in the Indenture), and the entire indebtedness of the
Company in respect thereof will be deemed to have been
satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent
(other than the Company), in trust: (a) money in an amount
which will be sufficient, or (b) Government Obligations (as
defined below), which do not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
will be sufficient, or (c) a combination of (a) and (b)
which will be sufficient, to pay when due the principal of
and premium, if any, and interest, if any, due and to become
due on such Debt Securities of such series or portions
thereof (Section 701). For this purpose, Government
Obligations, include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof
and certificates, depositary receipts or other instruments
which evidence a direct ownership interest in such
obligations or in any specific interest or principal
payments due in respect thereof.
While there may be no legal precedent on point, it is
possible that for federal income tax purposes any deposit
contemplated in the preceding paragraph could be treated as
a taxable exchange of the related Debt Securities for an
issue of obligations of the trust or a direct interest in
the cash and securities held in the trust. In that case,
Holders of such Debt Securities would recognize a gain or
loss for federal income tax purposes, as if their share of
the trust obligations or the cash or securities deposited,
as the case may be, had actually been received by them in
exchange for their Debt Securities. In addition, such
Holders thereafter would be required to include in income a
share of the income, gain or loss of the trust. The amount
so required to be included in income could be different from
the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their
own tax advisors as to the specific consequences to them of
such deposit.
Resignation of Trustee
The Trustee may resign at any time by giving written
notice thereof to the Company or may be removed at any time
by Act of the Holders of a majority in principal amount of
the then Outstanding Debt Securities delivered to the
Trustee and the Company. No resignation or removal of the
Trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the
Indenture. So long as no Event of Default or event which,
after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing and except
with respect to a Trustee appointed by Act of the Holders,
if the Company has delivered to the Trustee a resolution of
its Board of Directors appointing a successor trustee and
such successor has accepted such appointment in accordance
with the terms of the Indenture, the Trustee will be deemed
to have resigned and the successor will be deemed to have
been appointed as trustee in accordance with the Indenture.
(Section 910).
Book-Entry System - Global Debt Securities
Unless otherwise specified in the applicable Prospectus
Supplement. The Depository Trust Company, New York, New
York ("DTC") will act as securities depository for the Debt
Securities. The Debt Securities will be issued only as
fully-registered securities registered in the name of Cede &
Co. (DTC's partnership nominee). One or more fully-
registered global certificates will be issued for the Debt
Securities representing the aggregate principal amount of
such series of Debt Securities, and will be deposited with
DTC.
DTC is a limited-purpose trust company organized under
the New York Banking Law, a "banking organization" within
the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities that
its participants (the "Direct Participants") deposit with
DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants'
accounts, thereby eliminating the need for physical movement
of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC
is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange,
Inc., and the National Association of Securities Dealers,
Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly (the "Indirect Participants," and together with
the Direct Participants, the "Participants"). The rules
applicable to DTC and its Participants are on file with the
Commission.
Purchases of Debt Securities within the DTC system must
be made by or through Direct Participants, which will
receive a credit for the Debt Securities on DTC's records.
The ownership interest of each actual purchaser of each
Debenture (a "Beneficial Owner") is in turn to be recorded
on the Direct and Indirect Participants' respective records.
Beneficial Owners will not receive written confirmation from
DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the
transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction.
Transfers of ownership interest in the Debt Securities are
to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing
their ownership interest in Debt Securities except in the
event that use of the book-entry system for the Debt
Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities
deposited by Direct Participants with DTC are registered in
the name of DTC's partnership nominee, Cede & Co. The
deposit of the Debt Securities with DTC and their
registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to
whose accounts such Debt Securities are credited, which may
or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC
to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to
time.
Redemption notices shall be sent to Cede & Co. If less
than all of the securities of an issue are being redeemed,
DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with
respect to the Debt Securities. Under its usual procedures,
DTC mails an omnibus proxy (an "Omnibus Proxy") to the
Participants as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts the
Debt Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on
the Debt Securities will be made to DTC. DTC's practice is
to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings
shown on DTC's records unless DTC has reason to believe that
it will not receive payment on such payment date. Payments
by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the
case with securities for the accounts of customers in bearer
form or registered in "street-name," and will be the
responsibility of such Participant and not of DTC, the
Underwriters, or the Company, subject to any statutory or
regulatory requirements as may be in effect from time to
time. Payment of principal, redemption premium, if any, and
interest to DTC is the responsibility of the Company or the
Trustee. Disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement
of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as
securities depository with respect to the Debt Securities at
any time by giving reasonable notice to the Company. Under
such circumstances and in the event that a successor
securities depository is not obtained, Debt Securities
certificates are required to be printed and delivered. In
addition, the Company may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor
securities depository). In that event, Debt Securities
certificates will be printed and delivered.
The Company will not have any responsibility or
obligation to Participants or the persons for whom they act
as nominees with respect to the accuracy of the records of
DTC, its nominee or any Direct or Indirect Participant with
respect to any ownership interest in the Debt Securities, or
with respect to payments to or providing of notice for the
Direct Participants, the Indirect Participants or the
Beneficial Owners.
So long as Cede & Co. is the registered owner of the
Debt Securities, as nominee of DTC, references herein to
Holders of the Debt Securities shall mean Cede & Co. or DTC
and shall not mean the Beneficial Owners of the Debt
Securities.
The information in this section concerning DTC and
DTC's book-entry system has been obtained from DTC. Neither
the Company, the Trustee nor the underwriters, dealers or
agents takes responsibility for the accuracy or completeness
thereof.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities: (i) through
underwriters or dealers, (ii) directly to one or more
purchasers, (iii) through agents or (iv) through a
combination of any such methods of sale. The applicable
Prospectus Supplement with respect to the Offered Securities
shall set forth the terms of the offering of the Offered
Securities, including the name or names of any underwriters,
dealers or agents, the purchase price of such Offered
Securities and the proceeds to the Company from such sale,
any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering
price and any discounts or concessions allowed or reallowed
or paid by any underwriters to dealers. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers by any underwriters may be
changed from time to time.
If underwriters are used in the sale of the Offered
Securities, such Offered Securities will be acquired by the
underwriters for their own account and may be resold from
time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. The
underwriters with respect to a particular underwritten
offering of Offered Securities will be named in the
applicable Prospectus Supplement relating to such offering
and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover
page of such Prospectus Supplement. In connection with the
sale of Offered Securities, the underwriters may receive
compensation from the Company or from purchasers in the form
of discounts, concessions or commissions. The underwriters
will be, and any dealers participating in the distribution
of the Offered Securities may be, deemed to be underwriters
within the meaning of the Securities Act of 1933, as
amended. The Company has agreed to indemnify the
underwriters against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended.
The underwriting agreement pursuant to which any Offered
Securities are to be sold will provide that the obligations
of the underwriters are subject to certain conditions
precedent and that the underwriters will be obligated to
purchase all of the Offered Securities if any are purchased;
provided that the agreement between the Company and the
underwriter providing for the sale of the Offered Securities
may provide that under certain circumstances involving a
default of underwriters that less than all of the Offered
Securities may be purchased.
Offered Securities may be sold directly by the Company
or through agents designated by the Company from time to
time. The applicable Prospectus Supplement shall set forth
the name of any agent involved in the offer or sale of the
Offered Securities in respect of which such Prospectus
Supplement is delivered as well as any commissions payable
by the Company to such agent. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on
a best efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus
Supplement, the Company will authorize agents, underwriters
or dealers to solicit offers by certain specified
institutions to purchase Offered Securities from the Company
at the public offering price set forth in such Prospectus
Supplement pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future.
Such contracts will be subject to those conditions set forth
in the applicable Prospectus Supplement, and such Prospectus
Supplement will set forth the commission payable for
solicitation of such contracts.
EXPERTS AND LEGALITY
The Company's balance sheet as of December 31, 1994 and
the statements of income, retained earnings, and cash flows
for the year ended December 31, 1994, incorporated by
reference in this Prospectus, have been incorporated by
reference herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in accounting and
auditing.
The financial statements as of December 31, 1993 and
for each of the two years in the period ended December 31,
1993, incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their reports dated
February 11, 1994 (November 30, 1994 as to Note 2, "Rate and
Regulatory Matters-FERC Settlement"), which included an
explanatory paragraph relating to the Company's change in
method of accounting for income taxes, also incorporated by
reference herein.
The legality of the Debt Securities will be passed upon
for the Company by Reid & Priest LLP, New York, New York and
Wise Carter Child & Caraway, Professional Association,
Jackson, Mississippi. Certain legal matters will be passed
upon for any underwriters, dealers or agents by Winthrop,
Stimson, Putnam & Roberts, New York, New York. Matters
pertaining to New York law will be passed upon by Reid &
Priest LLP, New York counsel to the Company; matters
pertaining to Arkansas law will be passed upon by Friday,
Eldredge & Clark, Little Rock, Arkansas, Arkansas counsel to
the Company; and matters pertaining to Mississippi law will
be passed upon by Wise Carter Child & Caraway, Professional
Association, Mississippi counsel to the Company.
The statements as to matters of law and legal
conclusions made under "Description of Debt Securities" have
been reviewed by Wise Carter Child & Caraway, Professional
Association, Jackson, Mississippi, and by Reid & Priest LLP,
New York, New York, and are set forth herein in reliance
upon the opinions of said firms, respectively, and upon
their authority as experts.
The statements made in the Incorporated Documents as to
matters of law and legal conclusions, based on the belief or
opinion of the Company or otherwise pertaining to (i) titles
to properties, franchises and other operating rights of the
Company, (ii) regulations to which the Company is subject,
and (iii) any legal proceedings to which the Company is a
party, are made on the authority of Wise Carter Child &
Caraway, Professional Association, and such statements are
included in such documents and herein in reliance upon their
authority as experts.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees_Securities and Exchange
Commission:
Registration Statement $91,379 -
Application_Declaration 2,000 -
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 7,000 3,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway, 20,000 10,000
Professional Association
Reid & Priest LLP 60,000 25,000
Friday, Eldredge & Clark 10,000 5,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accounting fees 18,000 12,000
*Printing and engraving costs 30,000 20,000
*Miscellaneous expenses (including Blue- 19,621 15,000
Sky expenses)
*Total Expenses $318,000 $140,000
___________________
* Estimated
Item 15. Indemnification of Directors and Officers.
System Energy has insurance covering its expenditures
which might arise in connection with its lawful
indemnification of its directors and officers for certain of
their liabilities and expenses. Directors and officers of
System Energy also have insurance which insures them against
certain other liabilities and expenses. The corporation
laws of Arkansas permit indemnification of directors and
officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933, and under
System Energy's Restated and Amended Articles of
Incorporation, its officers and directors may generally be
indemnified to the full extent of such laws.
Item 16. List of Exhibits.*
**1 - Form of Underwriting Agreement (filed as
Exhibit B-12 in System Energy's Application-
Declaration on Form U-1 in 70-8511).
4(a) - Form of Indenture for Unsecured Debt
Securities to be dated as of August 1, 1995
between System Energy and Chemical Bank, as
Trustee.
**4(b) - Form of Debt Security (filed as Exhibit A-6 in
System Energy's Application-Declaration on
Form U-1 in 70-8511).
4(c) - Form of Officer's Certificate to be used in
designating and authorizing the terms and
conditions of any series of Debt Securities
offered hereunder.
5(a) - Opinion of Wise Carter Child & Caraway,
Professional Association, Mississippi counsel
for System Energy, as to the legality of the
Debt Securities being registered.
5(b) - Opinion of Reid & Priest LLP, New York counsel
for System Energy, as to the legality of the
Debt Securities being registered.
**12 - Computations of Ratio of Earnings to Fixed
Charges (filed as Exhibit 12(f) to System
Energy's Annual Report on Form 10-K for the
period ended December 31, 1994, and Exhibit
99(f) to System Energy's Quarterly Report on
Form 10-Q for the period ended March 31, 1995,
each in File No. 1-9067).
23(a) - Consent of Wise Carter Child & Caraway,
Professional Association (included in Exhibit
5(a)).
23(b) - Consent of Reid & Priest LLP (included in
Exhibit 5(b)).
23(c) - Consent of Coopers & Lybrand L.L.P.
23(d) - Consent of Deloitte & Touche LLP.
25 - Statement of Eligibility of Trustee on Form T-
1 under the Trust Indenture Act of 1939, as
amended, of Chemical Bank, Trustee.
______________
* Reference is made to a duplicate list of exhibits being
filed as a part of the Registration Statement, which
list, prepared in accordance with Item 102 of
Regulation S-T of the Securities and Exchange
Commission, immediately precedes the exhibits being
physically filed with the Registration Statement.
** Incorporated herein by reference as indicated.
Item 17. Undertakings.
The undersigned registrant hereby undertakes
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii)
above do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability
under the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New Orleans, State
of Louisiana, on the 20th day of July, 1995.
SYSTEM ENERGY RESOURCES, INC.
By /s/ Donald C. Hintz
Donald C. Hintz, President,
Chief Executive Officer and
Director
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the
following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/ Donald C. Hintz President, Chief July 20, 1995
Donald C. Hintz Executive Officer and
Director
(Principal Executive
Officer)
/s/ Gerald D. McInvale Executive Vice July 20, 1995
Gerald D. McInvale President
Chief Financial
Officer,
and Director
(Principal Financial
and
Accounting Officer)
/s/ Edwin Lupberger Director July 20, 1995
Edwin Lupberger
/s/ Jerry L. Maulden Director July 20, 1995
Jerry L. Maulden
EXHIBIT 4(a)
_________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
CHEMICAL BANK
AS TRUSTEE
_________
Indenture
(For Unsecured Debt Securities)
Dated as of August 1, 1995
_________________________________________
<PAGE>
THIS INDENTURE, dated as of August 1, 1995, between SYSTEM
ENERGY RESOURCES, INC., a corporation duly organized and existing
under the laws of the State of Arkansas (herein called the
"Company"), having its principal office at Echelon One, 1340 Echelon
Parkway, Jackson, Mississippi 39213, and Chemical Bank, a New York
corporation, having its principal corporate trust office at 450 West
33rd Street, New York, New York 10001, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness
(herein called the " Securities"), in an unlimted aggregate principal
amount to be issued from time to time in one or more series as
contemplated herein; and all acts necessary to make this Indenture a
valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Securities are to be authenticated, issued and delivered
and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by refer
ence therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting princi
ples as are generally accepted in the United States at the date of
such computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted account
ing principles applicable to the Company, the Company shall, to
the extent required, conform to any order, rule or regulation of
any administrative agency, regulatory authority or other govern
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"Act", when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to
act on behalf of the Trustee to authenticate one or more series of
Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other duly authorized officer of the Company.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is
not a day on which banking institutions or trust companies in such
Place of Payment or other location are generally authorized or
required by law, regulation or executive order to remain closed,
except as may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the date of
execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such
time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Indenture is located at 450 West 33rd Street, New
York, New York 10001.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant
to Section 802. "Interest" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a particular
series has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of
Columbia or of any county, municipality or other political
subdivision of any thereof, or any department, agency, authority or
other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States entitled to the benefit
of the full faith and credit thereof; and
(b) certificates, depositary receipts or other in
struments which evidence a direct ownership interest in
obligations described in clause (a) above or in any spe
cific interest or principal payments due in respect
thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments
shall be a bank or trust company (which may include the
Trustee or any Paying Agent) subject to Federal or state
supervision or examination with a combined capital and
surplus of at least $50,000,000; [and provided, further,
that except as may be otherwise required by law,] such
custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instru
ments the full amount received by such custodian in
respect of such obligations or specific payments and
shall not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed
and delivered and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and
shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of
interest on such Security.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as provided
in such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, or other counsel
acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accord
ance with Section 701; and
(c) Securities which have been paid pursuant to Sec
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it and the Company that
such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the Securities
Outstanding under this Indenture, or the Outstanding
Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder or whether or not a quorum is present at a meeting
of Holders of Securities,
(x) Securities owned by the Company or
any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor
owns all Securities Outstanding under this
Indenture, or (except for purposes of actions to be
taken by Holders generally under Section 812 or 813)
all Outstanding Securities of each such series and
each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be
disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver
or upon any such determination as to the presence of
a quorum, only Securities which the Trustee knows to
be so owned shall be so disregarded; provided,
however, that Securities so owned which have been
pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securi
ties or any Affiliate of the Company or of such
other obligor;
(y) the principal amount of a Discount
Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal
thereof that would be due and payable as of the date
of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 802; and
(z) the principal amount of any Security
which is denominated in a currency other than
Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be
the amount of Dollars which could have been
purchased by the principal amount (or, in the case
of a Discount Security, the Dollar equivalent on the
date determined as set forth below of the amount
determined as provided in (y) above) of such
currency or composite currency evidenced by such
Security, in each such case certified to the Trustee
in an Officer's Certificate, based (i) on the
average of the mean of the buying and selling spot
rates quoted by three banks which are members of the
New York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time) in
The City of New York on the fifth Business Day
preceding any such determination or (ii) if on such
fifth Business Day it shall not be possible or
practicable to obtain such quotations from such
three banks, on such other quotations or alternative
methods of determination which shall be as
consistent as practicable with the method set forth
in (i) above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any time
for all purposes of this Indenture shall be the original
principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium,
if any, or interest, if any, on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or
rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership,
joint venture, trust, limited liability company, limited
liability partnership or unincorporated organization or any
Governmental Authority thereof.
"Place of Payment", when used with respect to the Securi
ties of any series, or Tranche thereof, means the place or
places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche
are payable.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the
same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Secur
ity to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means
the date specified for that purpose as contemplated by Section
301.
"Required Currency" has the meaning specified in Section
311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to
bear simple interest. Any calculation or other determination
to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to
the effective interest cost to the Company of such Security
and without regard to the Stated Interest Rate on, or the
effective cost to the Company of, any other indebtedness in
respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such
obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or
extension).
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, as amended, or any successor statute,
as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to
the Trustee to take any action under any provision of this
Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application
or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each Person signing such cer
tificate 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 state
ments or opinions contained in such certificate or opin
ion are based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of
each such Person, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which
such Officer's Certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information with
respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion
or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee
of any Board Resolution, Officer's Certificate, Opinion of
Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or
omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with
the same force and effect as if originally filed in the
corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute
document or instrument shall be deemed to have been executed
and/or delivered as of the date or dates required with
respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had
the original document or instrument not contained such error
or omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in
full force and effect, except to the extent that such action
was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally
and ratably with all other Outstanding Securities, except as
aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied
in and evidenced by the record of Holders voting in
favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly
called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments
and any such record. Except as herein otherwise
expressly provided, such action shall become effective
when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Sec
tion 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in
the manner provided in Section 1306.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved
by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof or
may be proved in any other manner which the Trustee and
the Company deem sufficient. Where such execution is by
a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding
the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a
Holder shall bind every future Holder of the same
Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Com
pany in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) Until such time as written instruments shall
have been delivered to the Trustee with respect to the
requisite percentage of principal amount of Securities
for the action contemplated by such instruments, any
such instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or all of
such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act of
Holders may, and shall if required by the Trustee, bear
a notation in form approved by the Trustee as to any
action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any
Tranche thereof, so modified as to conform, in the
opinion of the Trustee and the Company, to such action
may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its
option, by Board Resolution, fix in advance a record
date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have
no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of record
at the close of business on the record date shall be
deemed to be Holders for the purposes of (i) determining
whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be
computed as of the record date or (ii) determining which
Holders may revoke any such Act (notwithstanding Section
104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with, the Trustee by
any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by
facsimile transmission, telex or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time
to time designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such party's
name below or to such other address as either party hereto
may from time to time designate:
If to the Trustee, to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee, Administration Department
Telephone: (212) 946-3347
Telecopy: (212) 946-7799 or 7800
If to the Company, to:
System Energy Resources, Inc.
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention:
Telephone: (601) 984-9000
Telecopy:
With a copy to:
System Energy Resources, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: William J. Regan, Jr., Treasurer
Telephone: (504) 576-4308
Telecopy: (504) 576-4455
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if transmitted
by facsimile transmission, telex or other direct written
electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given, and shall be
deemed given, to Holders if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail, then
such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived
in writing by the Person entitled to receive such notice,
either before or after the event otherwise to be specified
therein, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such
waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Indenture by, or is
otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture
and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall for any reason be held to be invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than the
parties hereto, their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed
by and construed in accordance with the laws of the State of
New York, except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not
be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of
the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or
Officer's Certificate which establishes the terms of the
Securities of such series or Tranche, which specifically
states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly
provided for on such Business Day, no interest shall accrue
on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be
in substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in
a Board Resolution establishing such series, or in an
Officer's Certificate pursuant to such supplemental indenture
or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate,
if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be issuable
in registered form without coupons. The definitive
Securities shall be produced in such manner as shall be
determined by the officers executing such Securities, as
evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication shall
be in substantially the form set forth below:
This is one of the Securities of the
series designated therein referred to in the
within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
Prior to the authentication, issuance and delivery of
Securities of any series, there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such series
from Securities of all other series);
(b) any limit upon the aggregate principal amount
of the Securities of such series which may be authenti
cated 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 the series pursuant to Section 304, 305,
306, 406 or 1206 and, except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in
whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on
the Regular Record Date for such interest;
(d) the date or dates on which the principal of
the Securities of such series or any Tranche thereof, is
payable or any formulary or other method or other means
by which such date or dates shall be determined, by
reference to an index or other fact or event
ascertainable outside this Indenture or otherwise
(without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of
such series, or any Tranche thereof, shall bear
interest, if any (including the rate or rates at which
overdue principal shall bear interest, if different from
the rate or rates at which such Securities shall bear
interest prior to Maturity, and, if applicable, the rate
or rates at which overdue premium or interest shall bear
interest, if any), or any formulary or other method or
other means by which such rate or rates shall be
determined, by reference to an index or other fact or
event ascertainable outside this Indenture or otherwise;
the date or dates from which such interest shall accrue;
the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date, if any, for the
interest payable on such Securities on any Interest
Payment Date; and the basis of computation of interest,
if other than as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of
such series, or any Tranche thereof, may be effected and
(4) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security
Registrar and Paying Agent or Agents for such series;
and if such is the case, and if acceptable to the
Trustee, that the principal of such Securities shall be
payable without presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which and
the terms and conditions upon which the Securities of
such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by the
Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from
any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such
series, or any Tranche thereof, pursuant to any sinking
fund or other analogous mandatory redemption provisions
or at the option of a Holder thereof and the period or
periods within which or the date or dates on which, the
price or prices at which and the terms and conditions
upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obliga
tion, and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if
other than denominations of $1,000 and any integral
multiple thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal of
and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof, shall
be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or in
terest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of
the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be
payable, the period or periods within which and the
terms and conditions upon which, such election may be
made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable
at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of
such securities or other property, or the formulary or
other method or other means by which such amount shall
be determined, and the period or periods within which,
and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal
of or premium, if any, or interest, if any, on the
Securities of such series, or any Tranche thereof, may
be determined with reference to an index or other fact
or event ascertainable outside this Indenture, the
manner in which such amounts shall be determined to the
extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof,
the portion of the principal amount of Securities of
such series, or any Tranche thereof, which shall be
payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities
of such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series,
or any Tranche thereof, in addition to those set forth
in Article Six and whether any such covenants may be
waived pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may
be converted into or exchanged for shares of capital
stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in
respect of the Securities of such series, or any Tranche
thereof, denominated in a currency other than Dollars or
in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided
in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form, (i)
any limitations on the rights of the Holder or Holders
of such Securities to transfer or exchange the same or
to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive
form in lieu of global form and (iii) any and all other
matters incidental to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto which
are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such Series,
or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of
such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in
the definition of Business Day, with respect to the
Securities of such series, or any Tranche thereof; and
(v) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent with
the provisions of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the
Board Resolution which establishes such series, or the
Officer's Certificate pursuant to such supplemental indenture
or Board Resolution, as the case may be, may provide general
terms or parameters for Securities of such series and provide
either that the specific terms of Securities of such series,
or any Tranche thereof, shall be specified in a Company Order
or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company
Order as contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, the Securities of each series shall be
issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, the Securities shall be executed on behalf
of the Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or reproduced
thereon attested by any other Authorized Officer. The
signature of any or all of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of execution
Authorized Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at
the date of such Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time or
from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication
and delivery of such Securities and, to the extent that
the terms of such Securities shall not have been
established in an indenture supplemental hereto or in a
Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301,
either (i) establishing such terms or (ii) in the case
of Securities of a series subject to a Periodic
Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established
(which procedures may provide, to the extent acceptable
to the Trustee, for authentication and delivery pursuant
to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in writing),
in either case in accordance with the instrument or
instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on
behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such
Securities have been duly authorized by the Company
and have been established in conformity with the
provisions of this Indenture;
(ii) that the terms of such Securities
have been duly authorized by the Company and have
been established in conformity with the provisions
of this Indenture; and
(iii) that such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the manner
and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid and
legally binding obligations of the Company,
entitled to the benefits provided by this
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating
to or affecting generally the enforcement of
creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in
equity or at law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel only once at or
prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses
the authentication and delivery of all Securities of such
series) and that in lieu of the opinions described in clauses
(ii) and (iii) above Counsel may opine that:
(x) when the terms of such Securities
shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders, all
as contemplated by and in accordance with the
instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly
authorized by the Company and will have been
established in conformity with the provisions of
this Indenture; and
(y) such Securities, when authenticated
and delivered by the Trustee in accordance with
this Indenture and the Company Order or Orders or
specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in
the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating
to or affecting generally the enforcement of credi
tors' rights, including, without limitation,
bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in
equity or at law).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to
the authorization by the Company of any of such Securities,
the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion
of Counsel and other documents delivered pursuant to Sections
201 and 301 and this Section, as applicable, at or prior to
the time of the first authentication of Securities of such
series unless and until such opinion or other documents have
been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall
be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
rules, regulations or orders of any Governmental Authority
having jurisdiction over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or any
Tranche thereof, no Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for
herein executed by the Trustee or its agent by manual
signature of an authorized officer thereof, and such
certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing,
if any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its behalf,
but shall never have been issued and sold by the Company, and
the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the
benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, or any Tranche thereof, the Company may execute,
and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of
the tenor of the definitive Securities in lieu of which they
are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their
execution of such Securities; provided, however, that
temporary Securities need not recite specific redemption,
sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, after the preparation of definitive
Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive
Securities of such series or Tranche upon surrender of such
temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for
such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute
and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and
Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities
of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to
the Securities of each series ,a register (the register kept
in accordance with this Section being referred to as the
"Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide
for the registration of Securities of such series or any
Tranche thereof and the registration of transfer thereof.
The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and such
Person is referred to herein, with respect to such series, as
the "Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one of its offices
as the office in which the register with respect to the
Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with
respect to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the Company
at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, upon surrender for registration of
transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or Tranche,
the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series
and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, any Security of such series or Tranche
may be exchanged at the option of the Holder, for one or more
new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the
Company, the Trustee or the Security Registrar, as the case
may be, duly executed by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or any
Tranche thereof, no service charge shall be made for any
registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 406
or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange
of (a) Securities of any series, or any Tranche thereof,
during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the
Securities of such series or Tranche called for redemption or
(b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security
of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership
of and the destruction, loss or theft of any Security and (b)
such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or
the Trustee that such Security is held by a Person purporting
to be the owner of such Security, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security
of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone
other than the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, interest on any Security which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Se
curities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed
in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense
of the Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in
the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such De
faulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall be no
longer payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section
and Section 305, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of
and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to
any Person other than the Security Registrar, be delivered to
the Security Registrar and, if not theretofore canceled,
shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in
any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No Securities
shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed
of in accordance with a Company Order delivered to the
Security Registrar and the Trustee, and the Security
Registrar shall promptly deliver a certificate of disposition
to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled
Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security
in accordance with this Section 309 to the Trustee and the
Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche
thereof, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve
30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than
Dollars or in a composite currency (the "Required Currency"),
except as otherwise specified with respect to such Securities
as contemplated by Section 301, the obligation of the Company
to make any payment of the principal thereof, or the premium
or interest thereon, shall not be discharged or satisfied by
any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Cur
rency then due and payable. If any such tender or recovery
is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs
and risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall remain fully liable
for any shortfall or delinquency in the full amount of Re
quired Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor except in the case of
its negligence or willful misconduct.
SECTION 312. CUSIP Numbers.
The Company in issuing Securities of any series
shall use a "CUSIP" number and the Trustee shall use the
CUSIP number in notices of redemption or exchange as a
convenience to the Holders of the Securities of such series;
provided, that any such notice may state that no such
representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or in the Securities
of such series, and that reliance may be placed only on the
other identification numbers printed on the Securities of
such series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof,
which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche) in accordance with this
Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed. In the
case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture
or (b) pursuant to an election of the Company which is
subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or
any Tranche thereof, are to be redeemed, the particular
Securities to be redeemed shall be selected by the Security
Registrar from the Outstanding Securities of such series or
Tranche not previously called for redemption, by such method
as shall be provided for any particular series, or, in the
absence of any such provision, by such method of random
selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of such series or
Tranche or any integral multiple thereof) of the principal
amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination
for Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or
any Tranche thereof, and less than all of such Securities as
to which such offer was made shall have been tendered to the
Company for such purchase, the Security Registrar, if so
directed by Company Order, shall select for redemption all or
any principal amount of such Securities which have not been
so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected
for redemption and, in the case of any Securities selected to
be redeemed in part, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to
be redeemed not less than 30 nor more than 60 days prior to
the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series
or Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of
the principal amount of any Security to be redeemed in
part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to the
Redemption Date, will become due and payable upon each
such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(e) the place or places where such Securities are
to be surrendered for payment of the Redemption Price
and accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to
any notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such
Securities shall be deemed to have been paid in accordance
with Section 701, such notice may state that such redemption
shall be conditional upon the receipt by the Paying Agent(s)
for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that
such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was
given, that such money was not so received and such
redemption was not required to be made, and the Paying
Agent(s) for the Securities otherwise to have been redeemed
shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed
at the election of the Company, and any notice of non-
satisfaction of a condition for redemption as aforesaid,
shall be given by the Company or, at the Company's request,
by the Security Registrar in the name and at the expense of
the Company. Notice of mandatory redemption of Securities
shall be given by the Security Registrar in the name and at
the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the case
of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance
with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except
as otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on any
Security the Stated Maturity of which installment is on or
prior to the Redemption Date shall be payable to the Holder
of such Security, or one or more Predecessor Securities,
registered as such at the close of business on the related
Regular Record Date according to the terms of such Security
and subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service
charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount
equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of the Securities of
any series, or any Tranche thereof, except as otherwise
specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to as an
"optional sinking fund payment". If provided for by the
terms of Securities of any series, or any Tranche thereof,
the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 502. Each sinking
fund payment shall be applied to the redemption of Securities
of the series or Tranche in respect of which it was made as
provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called for
redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which
have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment
if such Securities shall have been previously so applied.
Securities so applied shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an
Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking
fund payment to be made together with such mandatory
sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such mandatory sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant
to Section 502 and stating the basis for such credit and
that such Securities have not previously been so
credited, and the Company shall also deliver to the
Trustee any Securities to be so delivered. If the
Company shall not deliver such Officer's Certificate,
the next succeeding mandatory sinking fund payment for
such series or Tranche shall be made entirely in cash in
the amount of the mandatory sinking fund payment. Not
less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
404. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium,
if any, and interest, if any, on the Securities of each
series in accordance with the terms of such Securities and
this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment
for the Securities of each series, or any Tranche thereof, an
office or agency where payment of such Securities shall be
made, where the registration of transfer or exchange of such
Securities may be effected and where notices and demands to
or upon the Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt
notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall
fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof,
or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be effected
and notices and demands in respect thereof may be served at
the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate
one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof, for
any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series or Tranche, no
such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner
specified in Section 106, of any such designation or
rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding,
any office or agency required by this Section may be
maintained at an office of the Company, in which event the
Company shall perform all functions to be performed at such
office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any series, or
any Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche
thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company shall promptly notify the Trustee
of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than
the Company or the Trustee, to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the payment of
the principal of and premium, if any, or interest, if
any, on such Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to
make any payment of principal of or premium, if any, or
interest, if any, on such Securities; and
(c) at any time during the continuance of any
failure referred to in the preceding paragraph (b), upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent
and furnish to the Trustee such information as it
possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent
and, if so stated in a Company Order delivered to the
Trustee, in accordance with the provisions of Article Seven;
and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment
of the principal of and premium, if any, or interest, if any,
on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become
due and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge, the
Holder of such Security shall, as an unsecured general
creditor and not as a Holder of an Outstanding Security, look
only to the Company for payment of the amount so due and
payable and remaining unpaid, and all liability of the
Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable effort
to cause) all its properties used or useful in the conduct of
its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort
to cause) to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly
conducted; provided, however, that nothing in this Section
shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to the
Trustee an Officer's Certificate which need not comply with
Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the
Company's compliance with all conditions and covenants under
this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under
this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the
Securities of any series, or any Tranche thereof, as
contemplated by Section 301 as being subject to waiver
pursuant to this Section 607, if before the time for such
compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches with respect to which compliance with such
covenant or restriction is to be omitted, considered as one
class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition and (b) Section 604,
605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of
such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver
shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid
for all purposes of this Indenture, and the entire
indebtedness of the Company in respect thereof shall be
deemed to have been satisfied and discharged, if there shall
have been irrevocably deposited with the Trustee or any
Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient,
or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof,
Eligible Obligations, which shall not contain provisions
permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and
the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held
by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however,
that in the case of the provision for payment or redemption
of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected
by the Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority
shall have been given by the Company to the Trustee to give
such notice, under arrangements satisfactory to the Trustee;
and provided, further, that the Company shall have delivered
to the Trustee and such Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a Company
Order stating that the money and Eligible
Obligations deposited in accordance with this
Section shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall have
been deposited, an Opinion of Counsel that the
obligations so deposited constitute Eligible
Obligations and do not contain provisions
permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of
an independent public accountant of nationally
recognized standing, selected by the Company, to
the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an
Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such
Securities or portions thereof will have been
satisfied and discharged as contemplated in this
Section.
Upon the deposit of money or Eligible Obligations,
or both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the
Trustee shall, upon receipt of a Company Request, acknowledge
in writing that the Security or Securities or portions
thereof with respect to which such deposit was made are
deemed to have been paid for all purposes of this Indenture
and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set
forth in the preceding paragraph shall have been satisfied in
respect of any Securities or portions thereof except that,
for any reason, the Officer's Certificate specified in clause
(z), if required, shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed
to have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under
Article Six (except the covenants contained in Sections 602
and 603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by Section
301, but the indebtedness of the Company in respect of such
Securities or portions thereof shall not be deemed to have
been satisfied and discharged prior to Maturity for any other
purpose, and the Holders of such Securities or portions
thereof shall continue to be entitled to look to the Company
for payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of
the Securities of any series, or any Tranche thereof, is to
be provided for in the manner and with the effect provided in
this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption
of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed
to have been paid for purposes of this Indenture, and, if
such is the case, in respect of which the Company's
indebtedness shall have been satisfied and discharged, all as
provided in this Section do not mature and are not to be
redeemed within the sixty (60) day period commencing with the
date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable,
give a notice, in the same manner as a notice of redemption
with respect to such Securities, to the Holders of such
Securities to the effect that such deposit has been made and
the effect thereof.
Notwithstanding that any Securities shall be deemed
to have been paid for purposes of this Indenture, as
aforesaid, the obligations of the Company and the Trustee in
respect of such Securities under Sections 304, 305, 306, 404,
503 (as to notice of redemption), 602, 603, 907 and 915 and
this Article Seven shall survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible Obligations
shall have been deposited as provided in this Section
against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or
interest received in respect of such Eligible Obligations,
including, but not limited to, any such tax payable by any
entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding,
(a) if, at any time after a Security would be deemed to have
been paid for purposes of this Indenture, and, if such is the
case, the Company's indebtedness in respect thereof would be
deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph),
the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to the
Company or its representative under any applicable Federal or
State bankruptcy, insolvency or other similar law, such
Security shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed
not to have been effected, and such Security shall be deemed
to remain Outstanding and (b) any satisfaction and discharge
of the Company's indebtedness in respect of any Security
shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to
be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder;
and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously deemed to
have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this Indenture
shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full
force and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably request to
evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of
this Indenture as aforesaid, the obligations of the Company
and the Trustee under Sections 304, 305, 306, 404, 503 (as to
notice of redemption), 602, 603, 907 and 915 and this Article
Seven shall survive.
Upon satisfaction and discharge of this Indenture
as provided in this Section, the Trustee shall assign,
transfer and turn over to the Company, subject to the lien
provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of
the Holders of the Securities other than money and Eligible
Obligations held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or in
terest payments on any such Eligible Obligations, shall be
withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and
premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such
deposit was made, all subject, however, to the provisions of
Section 603; provided, however, that, so long as there shall
not have occurred and be continuing an Event of Default any
cash received from such principal or interest payments on
such Eligible Obligations, if not then needed for such pur
pose, shall, to the extent practicable, be invested upon
Company Request and upon receipt of the documents referred to
in clause (y) of Section 701 in Eligible Obligations of the
type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as
shall be sufficient, together with any other moneys and the
principal of and interest on any other Eligible Obligations
then held by the Trustee, to pay when due the principal of
and premium, if any, and interest, if any, due and to become
due on such Securities or portions thereof on and prior to
the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as received,
free and clear of any trust, lien or pledge under this In
denture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have
occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant
to this Section shall be held until such Event of Default
shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one or more of
the following events which has occurred and is continuing:
(a) failure to pay interest, if any, on any
Security of such series within sixty (60) days after the
same becomes due and payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series when due and
payable; or
(c) failure to perform or breach of any covenant
or warranty of the Company in this Indenture (other than
a covenant or warranty a default in the performance of
which or breach of which is elsewhere in this Section
specifically dealt with or which has expressly been in
cluded in this Indenture solely for the benefit of one
or more series of Securities other than such series) for
a period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of
such series not less than the principal amount of
Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of
such period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of such
principal amount of Securities of such series, as the
case may be, shall be deemed to have agreed to an
extension of such period if corrective action is
initiated by the Company within such period and is being
diligently pursued; or
(d) the entry by a court having jurisdiction in
the premises of (1) a decree or order for relief in re
spect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or (2) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition by one or more Persons other than the Company
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company
or for any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree
or order shall have remained unstayed and in effect for
a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the
Company in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due,
or the authorization of such action by the Board of
Directors; or
(f) any other Event of Default specified with re
spect to Securities of such series as contemplated by
Section 301.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the
time Outstanding, then in every such case the Trustee or the
Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the
principal amount (or, if any of the Securities of such series
are Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of
such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by
Holders), and upon such declaration such principal amount (or
specified amount) shall become immediately due and payable;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, may
make such declaration of acceleration, and not the Holders of
the Securities of any one of such series.
At any time after such a declaration of
acceleration with respect to Securities of any series shall
have been made and before a judgment or decree for payment of
the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of
Default giving rise to such declaration of acceleration
shall, without further act, be deemed to have been waived,
and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled,
if
(a) the Company shall have paid or deposited with
the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium, if
any, on any Securities of such series which have be
come due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such
Securities; and
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the non-
payment of the principal of Securities of such series
which shall have become due solely by such declaration
of acceleration, shall have been cured or waived as
provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or
(b) of Section 801 shall have occurred and be continuing, the
Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Securities of the series with
respect to which such Event of Default shall have occurred,
the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, to
the extent permitted by law, interest on premium, if any, and
on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover
any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid,
may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the
Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount
of principal, premium, if any, and interest, if any,
owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee
under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under
Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities
or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders in respect
of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee with respect to
a particular series of Securities pursuant to this Article
Eight shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in
respect of which or for the benefit of which such money shall
have been collected and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully
paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium,
if any, and interest, if any, in respect of which or for
the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal, premium, if any, and interest,
if any, respectively; and
Third: To the payment of any surplus then
remaining to the Company, or to whomever may be lawfully
entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event of
Default with respect to the Securities of such series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities
of all series in respect of which an Event of Default
shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to
institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to
the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance
with such request;
(d) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have
failed to institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such
60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
series in respect of which an Event of Default shall
have occurred and be continuing, considered as one
class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808.Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of
the principal of and premium, if any, and (subject to Section
307) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding,
the Company, and Trustee and such Holder shall be restored
severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the
Trustee and such Holder shall continue as though no such
proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph
of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article Eight or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders
of a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that if an
Event of Default shall have occurred and be continuing with
respect to more than one series of Securities, the Holders of
a majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict with
any rule of law or with this Indenture, and could not
involve the Trustee in personal liability in
circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with
such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium,
if any, or interest, if any, on any Security of such
series, or
(b) in respect of a covenant or provision hereof
which under Section 1202 cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder
by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit may be
brought, considered as one class, or to any suit instituted
by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on
or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform,
with respect to Securities of such series, such
duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its
part, the Trustee may, with respect to Securities
of such series, conclusively rely, as to the truth
of the statements and the correctness of the
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case
of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a) of
this Section;
(2) the Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken
by it in good faith in accordance with the direc
tion of the Holders of a majority in principal
amount of the Outstanding Securities of any one or
more series, as provided herein, relating to the
time, method and place of conducting any proceeding
for any remedy available to the Trustee, or
exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the
conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to the
Holders of Securities of such series in the manner and to the
extent required to do so by the Trust Indenture Act, unless
such default shall have been cured or waived; provided,
however, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall
be given until at least 75 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, deben
ture, note, other evidence of indebtedness or other
paper or document 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 men
tioned herein shall be sufficiently evidenced by a Com
pany Request or Company Order, or as otherwise expressly
provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Inden
ture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any Holder
pursuant to this Indenture, unless such Holder shall
have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its dis
cretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry
or investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge
of any Event of Default with respect to the Securities
of any series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (2)
written notice of such Event of Default shall have been
given to the Trustee by the Company, any other obligor
on such Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall
be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes responsibility
for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of
the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 908 and 913, may otherwise deal with the
Company with the same rights it would have if it were not the
Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds, except to the extent
required by law. The Trustee shall be under no liability for
interest on or investment of any moneys received by it
hereunder except as expressly provided herein or otherwise
agreed with, and for the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reason
able compensation for all services rendered by it here
under (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reason
able expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its
agents and counsel), except to the extent that any such
expense, disbursement or advance may be attributable to
its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless
from and against, any loss, liability or expense
reasonably incurred by it arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its
duties hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to
its negligence, wilful misconduct or bad faith.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a
lien prior to the Securities upon all property and funds held
or collected by the Trustee as such other than property and
funds held in trust under Section 703 (except as otherwise
provided in Section 703). "Trustee" for purposes of this
Section shall include any predecessor Trustee; provided,
however, that the negligence, wilful misconduct or bad faith
of any Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the
effect, and subject to the conditions, provided in the Trust
Indenture Act and this Indenture. For purposes of Section
310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in
respect of the Securities of any series, shall not be deemed
to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by
Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon application,
a corporation or other Person organized and doing
business under the laws of a foreign government,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000 or the Dollar equivalent of the applicable
foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to
the requirements of such supervising or examining authority,
then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article Nine.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
Nine shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide Holder
for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be ap
pointed or any public officer shall take charge or con
trol of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquida
tion,
then, in any such case, (x) the Company by a Board Resolution
may remove the Trustee with respect to all Securities or
(y) subject to Section 814, any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause (other than as
contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it
being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable
requirements of Section 911. If, within one year after
such resignation, removal or incapability, or the oc
currence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the
applicable requirements of Section 911, become the
successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any
Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of
itself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice
or lapse of time, or both, would become, an Event of
Default shall have occurred and be continuing, and except
with respect to a Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this Section, if
the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective
as of such date, by such successor Trustee in accordance
with Section 911, the Trustee shall be deemed to have
resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have
been appointed by the Company pursuant to subsection (e)
of this Section and such appointment shall be deemed to
have been accepted as contemplated in Section 911, all as
of such date, and all other provisions of this Section
and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-
class mail, postage prepaid, to all Holders of Securities
of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of
the successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of all sums
owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts here
under separate and apart from any trust or trusts here
under administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee,
such retiring Trustee, upon payment of all sums owed to
it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
this Article Nine.
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the suc
cessor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article
Nine, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than
by reason of a relationship described in Section 311(b) of
the Trust Indenture Act), the Trustee shall be subject to any
and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the
Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least
thirty-three per centum (33%) in principal amount of the
Securities then Outstanding, the Company shall for such
purpose join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Trustee either to act as
co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right
or power deemed necessary or desirable, subject to the other
provisions of this Section. If the Company does not join in
such appointment within 15 days after the receipt by it of a
request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power
to make such appointment.
Should any written instrument or instruments from
the Company be required by any co-trustee or separate trustee
so appointed to more fully confirm to such co-trustee or
separate trustee such property, title, right or power, any and
all such instruments shall, on request, be executed,
acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations
hereby conferred or imposed upon the Trustee in respect
of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-
trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the
Company, may accept the resignation of or remove any co-
trustee or separate trustee appointed under this Section,
and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company.
Upon the written request of the Trustee, the Company
shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or
omission of the Trustee, or any other such trustee
hereunder; and
(e) any Act of Holders delivered to the Trustee
shall be deemed to have been delivered to each such co-
trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series,
or any Tranche thereof, which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by
the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the
United States, any State or territory thereof or the District
of Columbia or the Commonwealth of Puerto Rico, authorized
under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of
one or more series, or any Tranche thereof, shall be made
pursuant to this Section, the Securities of such series or
Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated
upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section
102 and need not be accompanied by an Opinion of Counsel),
shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the
Trustee, an Authenticating Agent having an office in a Place
of Payment designated by the Company with respect to such
series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than June 30 and December 31
in each year, commencing December 31, 1995, and at such other
times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as
to the names and addresses of the Holders, and the Trustee
shall preserve such information and similar information
received by it in any other capacity and afford to the Holders
access to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than June 30 in each year, commencingJune
30, 1996, the Trustee shall transmit to the Holders and the
Commission a report, dated as of the next precedingApril 1,
with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and
to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders and the Commission, and
the Company shall file with the Trustee (within thirty (30)
days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with
the Commission and furnished to the Trustee) and transmit to
the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer or
lease its properties and assets substantially as an entirety
to any Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a Person organized and existing under
the laws of the United States, any State thereof or the
District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if
any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(b) immediately after giving effect to such trans
action and treating any indebtedness for borrowed money
which becomes an obligation of the Company as a result of
such transaction as having been incurred by the Company
at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and
be continuing; and
(c) the Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions
precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger
by the Company into any other corporation or any conveyance,
or other transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with
Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the
Person to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company and
the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the
Securities, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for
the benefit of the Holders of, or to remain in effect
only so long as there shall be Outstanding, Securities of
one or more specified series, or one or more specified
Tranches thereof, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this In
denture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the
Holders of Securities of any series or Tranche
Outstanding on the date of such indenture supplemental
hereto in any material respect, such change, elimination
or addition shall become effective with respect to such
series or Tranche only pursuant to the provisions of
Section 1202 hereof or when no Security of such series or
Tranche remains Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(g) to provide for the authentication and delivery
of bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities of one or more series and
to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of
Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-cer
tificated system of registration for all, or any series
or Tranche of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any,
on all or any series of Securities, or any Tranche
thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered
for registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or
any Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other changes to the provisions hereof or to add
other provisions with respect to matters or questions
arising under this Indenture, provided that such other
changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or
Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the
execution and delivery of this Indenture or at any time
thereafter shall be amended and
(x) if any such amendment shall require
one or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to
the Trust Indenture Act, and the Company and the
Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
effect or evidence such changes or additional
provisions; or
(y) if any such amendment shall permit
one or more changes to, or the elimination of, any
provisions hereof which, at the date of the
execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act
to be contained herein, this Indenture shall be
deemed to have been amended to effect such changes
or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such
amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of
all series then Outstanding under this Indenture, considered
as one class, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one
or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series shall
have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of
such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as
one class, shall be required; and provided, further, that no
such supplemental indenture shall:
(a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon
the redemption thereof, or reduce the amount of the
principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption,
on or after the Redemption Date), without, in any such
case, the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of
the Outstanding Securities of any series or any Tranche
thereof, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of
the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any
default hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders of
each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities
of any series, or any Tranche thereof (except to increase
the percentages in principal amount referred to in this
Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or
waived), without the consent of the Holder of each
Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or of one or more Tranches
thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of
any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any pro
posed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof. A waiver by a
Holder of such Holder's right to consent under this Section
shall be deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 901) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate
this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this
Indenture as theretofore in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine,
new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an
Officer's Certificate pursuant to a Board Resolution as
contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee, any
such supplemental Board Resolution or Officer's Certificate
shall be deemed to be a "supplemental indenture" for purposes
of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, may be
called at any time and from time to time pursuant to this
Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken
by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, for any purpose
specified in Section 1301, to be held at such time and at
such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place
of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in
Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice
of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company
or the Holders of Securities of such series and Tranches
in the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place
as shall be determined or approved by the Company, for
such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of
this Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of
the Company and the Trustee are present, or if notice is
waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or
by such of them as are not present at the meeting in
person or by proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or
more Outstanding Securities of such series or Tranches, or (b)
a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of
such series or Tranches by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of Holders
of Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any repre
sentatives of the Trustee and its counsel and any represen
tatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series
and Tranches with respect to which a meeting shall have been
called as hereinbefore provided, considered as one class,
shall constitute a quorum for a meeting of Holders of
Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered
as one class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of
Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the
meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as
may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by
Section 1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in
Section 1302(a) not less than ten days prior to the date on
which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly
the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series and Tranches which
shall constitute a quorum.
Except as limited by Section 1202, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by
the affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series
and Tranches with respect to which such meeting shall have
been called, considered as one class; provided, however, that,
except as so limited, any resolution with respect to any
action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance with
this Section shall be binding on all the Holders of Securities
of the series and Tranches with respect to which such meeting
shall have been held, whether or not present or represented at
the meeting.
SECTION 1305.Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent
permitted by law, any such proxy shall remain in effect
and be binding upon any future Holder of the Securities
with respect to which it was given unless and until
specifically revoked by the Holder or future Holder
(except as provided in Section 104(g) of such Securities
before being voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding
of such Securities and of the appointment of proxies and
in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the
holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by
Holders as provided in Section 1302(b), in which case the
Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1000 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of all series and Tranches represented at the meeting,
considered as one class; and the meeting may be held as
so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which shall
be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and
Tranches with respect to which the meeting shall have been
called, held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolu
tion and who shall make and file with the secretary of the
meeting their verified written reports of all votes cast at
the meeting. A record of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed
and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based
thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future of the Company or of any predecessor or
successor corporation (either directly or through the Company
or a predecessor or successor corporation), whether by virtue
of any constitutional provision, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and
all the Securities are solely corporate obligations, and that
no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indi
rectly through the Company or any predecessor or successor
corporation, because of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities or to be implied herefrom or therefrom, and that
any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration
for, the execution of this Indenture and the issuance of the
Securities.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
SYSTEM ENERGY RESOURCES, INC.
By:_____________________________
[SEAL]
ATTEST:
_______________________
CHEMICAL BANK, Trustee
By:_____________________________
[SEAL]
ATTEST:
_______________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me
personally came _________________, to me known, who, being by
me duly sworn, did depose and say that he is the
_________________________ of System Energy Resources, Inc.,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OFNEW YORK )
On the _____ day of ____________, 1995, before me
personally came _________________, to me known, who, being by
me duly sworn, did depose and say that he is a
_________________ ofChemical Bank, one of the corporations
described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
<PAGE>
SYSTEM ENERGY RESOURCES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, 1995
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
Exhibit 4(c)
SYSTEM ENERGY RESOURCES, INC.
OFFICER'S CERTIFICATE
________________, the _______________ of System Energy
Resources, Inc. (the "Company"), pursuant to the authority
granted in the Board Resolutions of the Company dated _________,
1995, does hereby certify to ______________ (the "Trustee"), as
Trustee under the Indenture of the Company dated as of
__________, 1995 (the "Indenture") that:
1. The securities of the first series to be issued under
the Indenture shall be designated "___% Debentures due ____" (the
"Debentures of the First Series"). All capitalized terms used in
this certificate which are not defined herein but are defined in
the Indenture shall have the meanings set forth in the Indenture;
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $__________ at any time
Outstanding;
3. The Debentures shall mature and the principal shall be
due and payable together with all accrued and unpaid interest
thereon on ___________________;
4. The Debentures shall bear interest from the date of
original issuance (which is anticipated to be _____________), at
the rate of ___% per annum payable in equal ________
installments, in arrears, on _____ and _____ of each year (each
an "Interest Payment Date") commencing __________, 199_. The
amount of interest payable for any such period will be computed
on the basis of a 360-day year of twelve 30-day months. Interest
on the Debentures will accrue from the date of original issuance
to the first Interest Payment Date, and thereafter will accrue,
from the last Interest Payment Date to which interest has been
paid. No interest will accrue on the Debentures with respect to
the day on which the Debentures mature. In the event that any
Interest Payment Date is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment
Date;
5. Each installment of interest on a Debenture shall be
payable to the Person in whose name such Debenture is registered
at the close of business __ calendar days next preceding the
corresponding Interest Payment Date (the "Regular Record Date")
for the Debentures. Any installment of interest on the
Debentures not punctually paid or duly provided for shall
forthwith cease to be payable to the Holders of such Debentures
on such Regular Record Date, and may be paid to the Persons in
whose name the Debentures are registered at the close of business
on a Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest, notice whereof shall be given
to the Holders of the Debentures 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 Debentures may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in the Indenture;
6. The principal and each installment of interest on the
Debentures shall be payable at the office or agency of the
Company in The City of New York. The Trustee will initially be
the Paying Agent and the Registrar for the Debentures;
7. The Debentures will be redeemable on or prior to
_______________ at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at
___% of the principal amount redeemed plus accrued and unpaid
interest, if any, to the Redemption Date; and thereafter at ___%
of the principal amount redeemed plus accrued and unpaid
interest, if any, to the Redemption Date; [provided, however,
that none of the Debentures shall be redeemed prior to ________,
if such redemption is for the purpose, or in anticipation, of
refunding such Debentures through the use, directly or
indirectly, of funds borrowed by the Company at an effective
interest cost to the Company (calculated in accordance with
acceptable financial practice) of less than _____% per annum;]
8. The Debentures shall be issuable in denominations of
$__ and any integral multiple thereof;
9. So long as any Debentures are Outstanding, the failure
of the Company to pay interest on any Debentures within 60 days
after the same becomes due and payable shall constitute an Event
of Default;
10. The Debentures shall have such other terms and
provisions as are provided in the form thereof set forth in
Exhibit A hereto, and shall be issued in substantially such form;
11. The undersigned has read all of the covenants or
conditions of the Indenture relating to the issuance of the
Debentures and the definitions in the Indenture relating thereto;
12. The statements contained in this certificate are based
upon the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon discussions by
the undersigned with officers and employees of the Company
familiar with the matters set forth herein;
13. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to express an
informed opinion whether or not such covenants or conditions have
been complied with; and
14. In the opinion of the undersigned, such covenants or
conditions have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ___ day of _____, 1995.
_______________________
Name:
Title:
[LETTERHEAD OF WISE CARTER CHILD & CARAWAY]
July 20, 1995
EXHIBIT 5(a)
System Energy Resources, Inc.
1340 Echelon Parkway
Jackson, Mississippi 39213
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3,
including the exhibits thereto, to be filed with the Securities
and Exchange Commission (the "Commission") on or about the date
hereof by System Energy Resources, Inc. (the "Company") for the
registration under the Securities Act of 1933, as amended (the
"Securities Act") of $265,000,000 in aggregate principal amount
of debt securities (the "Securities") to be issued, in one or
more series, by the Company and for the qualification under the
Trust Indenture Act of 1939, as amended, of the Company's
Indenture (the "Indenture") under which the Securities are to be
issued.
We are of the opinion that the Company is a corporation
validly organized, existing and in good standing under the laws
of the State of Arkansas.
We are further of the opinion that all action necessary to
make valid and legal the proposed issuance and sale of the
Securities by the Company will have been taken when:
(a) the Company's said Registration
Statement on Form S-3, as it may be amended, shall
have become effective in accordance with the
applicable provisions of the Securities Act, and a
supplement or supplements to the prospectus
specifying certain details with respect to the
offering or offerings of the Securities shall have
been filed with the Commission, and the Indenture
shall have been qualified under the Trust
Indenture Act of 1939, as amended;
(b) an appropriate order or orders shall
have been issued by the Commission under the
Public Utility Holding Company Act of 1935, as
amended, with respect to the related Application-
Declaration on Form U-1 (File No. 70-8511), as
amended and as it may be further amended;
(c) appropriate action shall have been taken
by the Board of Directors of the Company for the
purpose of authorizing the consummation of the
issuance and sale of the Securities;
(d) the proposed Indenture shall have been
appropriately executed and delivered;
(e) the specific terms of each Security
shall have been determined by supplemental
indenture, board resolution or officer's
certificate; and
(f) the Securities shall have been
appropriately issued and delivered for the
consideration contemplated by, and otherwise in
conformity with, the acts, proceedings and
documents referred to above.
We are further of the opinion that when the foregoing steps
have been taken, the Securities will be legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of
creditors' rights and general equitable principles. This opinion
does not pass upon the matter of compliance with "blue sky" laws
or similar laws relating to the sale or distribution of the
Securities by underwriters.
We are members of the Mississippi Bar and do not hold
ourselves out as experts on the laws of any other state. As to
matters of Arkansas law, we have examined or caused to be
examined such documents and satisfied ourselves as to such
matters as we have deemed necessary in order to render this
opinion. In giving this opinion, we have relied, as to matters
of New York law, upon the opinion of even date addressed to you
by Reid & Priest LLP.
We hereby consent to the use of this opinion as an exhibit
to the Company's said Registration Statement on Form S-3, as it
may be amended, and consent to such references to our firm as may
be made in such Registration Statement and in the Prospectus
constituting a part thereof.
Very truly
yours,
WISE
CARTER CHILD & CARAWAY
Professional Association
BY: /s/
Betty Toon Collins
Betty
Toon Collins
[LETTERHEAD OF REID & PRIEST LLP]
July 20, 1995
EXHIBIT 5(b)
System Energy Resources, Inc.
1340 Echelon Parkway
Jackson, Mississippi 39213
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3,
including the exhibits thereto, to be filed with the Securities
and Exchange Commission (the "Commission") on or about the date
hereof by System Energy Resources, Inc. (the "Company") for the
registration under the Securities Act of 1933, as amended (the
"Securities Act"), of $265,000,000 in aggregate principal amount
of debt securities (the "Securities") to be issued, in one or
more series, by the Company and for the qualification under the
Trust Indenture Act of 1939, as amended, of the Company's
Indenture (the "Indenture") under which the Securities are to be
issued.
We are of the opinion that all action necessary to make
valid and legal the proposed issuance and sale of the Securities
by the Company will have been taken when:
(a) the Company's said Registration
Statement on Form S-3, as it may be amended, shall
have become effective in accordance with the
applicable provisions of the Securities Act, and a
supplement or supplements to the prospectus
specifying certain details with respect to the
offering or offerings of the Securities shall have
been filed with the Commission, and the Indenture
shall have been qualified under the Trust
Indenture Act of 1939, as amended;
(b) an appropriate order or orders shall
have been issued by the Commission under the
Public Utility Holding Company Act of 1935, as
amended, with respect to the related Application-
Declaration on Form U-1 (File No. 70-8511), as
amended and as it may be further amended;
(c) appropriate action shall have been taken
by the Board of Directors of the Company for the
purpose of authorizing the consummation of the
issuance and sale of the Securities;
(d) the proposed Indenture shall have been
appropriately executed and delivered;
(e) the specific terms of each Security
shall have been determined by supplemental
indenture, board resolution or officer's
certificate; and
(f) the Securities shall have been
appropriately issued and delivered for the
consideration contemplated by, and otherwise in
conformity with, the acts, proceedings and
documents referred to above.
We are further of the opinion that when the foregoing steps
have been taken, the Securities will be legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of
creditors' rights and general equitable principles. This opinion
does not pass upon the matter of compliance with "blue sky" laws
or similar laws relating to the sale or distribution of the
Securities by underwriters.
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of any other state. As to matters of
Arkansas and Mississippi law, we have relied upon an opinion of
even date addressed to you by Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi. We consent to
the reliance of said firm upon our opinion insofar as it relates
to matters of New York law.
We hereby consent to the use of this opinion as an exhibit
to the Company's said Registration Statement on Form S-3, as it
may be amended, and consent to such references to our firm as may
be made in such Registration Statement and in the Prospectus
constituting a part thereof.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our reports dated
February 21, 1995, on our audit of the financial statements
and financial statement schedules of System Energy
Resources, Inc. as of and for the year ended December 31,
1994, which reports are included in the Company's Annual
Report of Form 10-K. We also consent to the reference to
our firm under the caption "Experts and Legality."
/s/ Coopers & Lybrand L.L.P.
New Orleans, Louisiana
July 19, 1995
Exhibit 23(d)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of System Energy Resources, Inc. on
Form S-3 of our reports dated February 11, 1994 (November
30, 1994 as to Note 2, "Rate and Regulatory Matters - FERC
Settlement"), appearing in System Energy Resources, Inc.'s
Annual Report on Form 10-K for the year ended December 31,
1994 and to the reference to us under the heading "Experts
and Legality" in the Prospectus, which is part of this
Registration Statements.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New Orleans, Louisiana
July 19, 1995
Exhibit 25
_______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
System Energy Resources, Inc.
(Exact name of obligor as specified in its charter)
Arkansas 72-0752777
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Echelon One
1340 Echelon Parkway
Jackson, MS 39213
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York,
N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b)Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee
as now in effect, including the Organization Certificate and
the Certificates of Amendment dated February 17, 1969, August
31, 1977, December 31, 1980, September 9, 1982, February 28,
1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
3. None, authorization to exercise corporate trust
powers being contained in the documents identified above as
Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 33-84460, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Chemical Bank, a corporation organized and
existing under the laws of the State of New York, has duly
caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City
of New York and State of New York, on the 13th day of July,
1995.
CHEMICAL BANK
By /s/ James M. Foley
James M. Foley
Assistant Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 5,797
Interest-bearing balances 5,523
Securities:
Held to maturity securities 6,195
Available for sale securities 17,785
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold 2,493
Securities purchased under agreements to resell 50
Loans and lease financing receivables:
Loans and leases, net of unearned income $68,937
Less: Allowance for loan and lease losses 1,898
Less: Allocated transfer risk reserve 113
Loans and leases, net of unearned income,
allowance, and reserve 66,926
Trading Assets 37,294
Premises and fixed assets (including capitalized
leases) 1,402
Other real estate owned 99
Investments in unconsolidated subsidiaries and associated
companies 148
Customer's liability to this bank on acceptances
outstanding 1,051
Intangible assets 512
Other assets 6,759
TOTAL ASSETS $149,034
=========
LIABILITIES
Deposits
In domestic offices $44,882
Noninterest-bearing $14,690
Interest-bearing 30,192
In foreign offices, Edge and Agreement subsidiaries,
and IBF's 32,537
Noninterest-bearing $ 146
Interest-bearing 32,391
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased 10,587
Securities sold under agreements to repurchase 3,083
Demand notes issued to the U.S. Treasury 464
Trading liabilities 31,358
Other Borrowed money:
With original maturity of one year or less 7,527
With original maturity of more than one year 914
Mortgage indebtedness and obligations under capitalized
leases 20
Bank's liability on acceptances executed and outstanding 1,054
Subordinated notes and debentures 3,410
Other liabilities 5,986
TOTAL LIABILITIES 141,822
EQUITY CAPITAL
Common stock 620
Surplus 4,501
Undivided profits and capital reserves 2,558
Net unrealized holding gains (Losses)
on available-for-sale securities (476)
Cumulative foreign currency translation adjustments 9
TOTAL EQUITY CAPITAL 7,212
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL $149,034
==========
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
