File No. 70-8511
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_________________________________
Amendment No. 3
to the
Form U-1/A
__________________________________
APPLICATION - DECLARATION
Under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________
System Energy Resources, Inc. Entergy Corporation
1340 Echelon Parkway P.O. Box 61005
Jackson, Mississippi 39213 New Orleans, Louisiana 70161
Telephone: 601-368-5000 Telephone: 504-529-5262
Arkansas Power & Light Company Louisiana Power & Light Company
P.O. Box 551 639 Loyola Avenue
Little Rock, Arkansas 72203 New Orleans, Louisiana 70113
Telephone: 501-377-4000 Telephone: 504-569-4000
Mississippi Power & Light New Orleans Public Service Inc.
Company 639 Loyola Avenue
P.O. Box 1640 New Orleans, Louisiana 70113
Jackson, Mississippi 39205 Telephone: 504-569-4000
Telephone: 601-969-2311
(Names of companies filing this statement and addresses
of principal executive offices)
__________________________________
ENTERGY CORPORATION
(Name of top registered holding company
parent of each applicant or declarant)
_________________________________
Gerald D. McInvale
Senior Vice President and Chief Financial Officer
System Entergy Resources, Inc.
1340 Echelon Parkway
Jackson, Mississippi 39213
(Name and address of agent for service)
_____________________________________
The Commission is also requested to send copies
of communications in connection with this matter to:
Laurence M. Hamric, Esq. Robert B. McGehee, Esq.
Denise C. Redmann, Esq. Wise Carter Child & Caraway
Entergy Services, Inc. 600 Heritage Building
639 Loyola Avenue P.O. Box 651
New Orleans, Louisiana 70113 Congress at Capitol
(504) 576-2095 Jackson, Mississippi 39205
(601) 968-5500
Thomas J. Igoe, Jr., Esq. David P. Falck, Esq.
Reid & Priest Winthrop, Stimson, Putnam & Roberts
40 West 57th Street One Battery Park Plaza
New York, New York 10019 New York, New York 10004
(212) 603-2110 (212) 858-1438
Steven C. McNeal
Director - Corporate Finance
and Risk Management
Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
(504) 569-4363
<PAGE>
Item 6. Exhibits
Section A. Exhibits
A-2 Proposed form of additional Supplemental
Indenture(s) to the Mortgage and Deed of
Trust relating to the Bonds.
A-3 Proposed form of additional Supplemental
Indenture(s) to the Mortgage and Deed of
Trust relating to the Collateral Bonds.
A-4 Proposed form of Bond.
A-5 Proposed form of Collateral Bond.
A-6 Proposed form of Debenture.
A-7 Proposed form of Subordinated Debenture.
B-1 Proposed form of Underwriting or Purchase
Agreement for sale(s)
of the Bonds.
B-2(a) Proposed form of assignment(s) of
Availability Agreement (First Mortgage
Bonds).
B-2(b) Proposed form of assignment(s) of
Availability Agreement (Collateral Bonds).
B-3(a) Proposed form of assignment(s) of Capital
Funds Agreement (First Mortgage Bonds).
B-3(b) Proposed form of assignment(s) of Capital
Funds Agreement (Collateral Bonds).
B-4 Proposed form of Indenture relating to the
Tax-Exempt Bonds.
B-6 Proposed form of Installment Sale Agreement.
B-10 Proposed form of Debenture Indenture.
B-11 Proposed form of Subordinated Debenture
Indenture.
B-12 Proposed form(s) of Underwriting or Purchase
Agreement for sale(s) of the Debentures.
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company
Act of 1935, the undersigned companies have duly caused this
amendment to be signed on their behalf by the undersigned thereunto
duly authorized.
SYSTEM ENERGY RESOURCES, INC.
ENTERGY CORPORATION
By: /s/ Lee W. Randall
Lee W. Randall
Vice President and Chief Accounting Officer
ARKANSAS POWER & LIGHT COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
By: /s/ Lee W. Randall
Lee W. Randall
Vice President, Chief Accounting Officer
and Assistant Secretary
Dated: April 17, 1995
EXHIBIT A-2
__________________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
UNITED STATES TRUST COMPANY OF NEW YORK
AND
GERARD F. GANEY
(Successor to Malcolm J. Hood),
Trustees.
___________________________________
__________ Supplemental Indenture
Dated as of _____________
TO
MORTGAGE AND DEED OF TRUST
Dated as of June 15, 1977.
___________________________________
First Mortgage Bonds, _____% Series due ____
__________________________________________________
<PAGE>
TABLE OF CONTENTS*
Page
Parties
Recitals
ARTICLE I
Definitions and Rules of Construction
Section 1.01. Terms from the Indenture
Section 1.02. Definitions of New Terms
Abandonment
AP&L
Availability Agreement
Basic Agreements
Capital Funds Agreement
Defeasance Trustee
Eighth Series
Eleventh Series
Entergy
Fifteenth Series
Fifth Series
First Series
First Unit of the Grand Gulf Project
Fourteenth Series
Fourth Series
General Redemption Prices
LP&L
MP&L
Ninth Series
NOPSI
Sales Agreement
Second Series
Second Unit of the Grand Gulf Project
Services
Seventh Series
Seventeenth Series
Sixteenth Series
Sixth Series
Special Industrial Development Revenue Bonds
Special Redemption Price
System Agreement
System Companies
Tenth Series
Third Series
Thirteenth Series
Twelfth Series
____________ Assignment of Availability Agreement
____________ Supplementary Capital Funds Agreement
Section 1.03. Rules of Construction
___________
* The Table of Contents shall not be deemed to be any part of the
____________ Supplemental Indenture.
<PAGE>
ARTICLE II
The ____________ Series
Section 2.01. Bonds of the ____________ Series
ARTICLE III
Additional Bond Provisions
Section 3.01. Limit on Aggregate Amount
Section 3.02. Dating of Bonds and Interest Payments
ARTICLE IV
Additional Covenants
Section 4.01. Disposition of Property
Section 4.02. Security Interests in Certain Agreements
Section 4.03. Capital Funds and Availability Agreements
ARTICLE V
Provisions for Retirement of Bonds
Section 5.01. Redemption Upon Condemnation or Abandonment
ARTICLE VI
Additional Defaults
Section 6.01. Additional Defaults so long as ____________ Series
Bonds Outstanding
ARTICLE VII
Additional Security for ____________ Series Bonds
Section 7.01. Additional Security
ARTICLE VIII
Defeasance
Section 8.01. Defeasance
ARTICLE IX
Miscellaneous Provisions
Section 9.01. Record Date
Section 9.02. Titles
Section 9.03. Counterparts
Section 9.04. Waivers and Amendments
Section 9.05. Preconsent to Termination of Availability Agreement,
____________ Assignment of Availability Agreement,
Capital Funds Agreement and ____________
Supplementary Capital Funds Agreement
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
ANNEX A
<PAGE>
____________ SUPPLEMENTAL INDENTURE, dated as of the ___ day of
___________, made and entered into by and between SYSTEM ENERGY
RESOURCES, INC., a corporation of the State of Arkansas, whose post
office address is Echelon One, 1340 Echelon Parkway, Jackson, Mississippi
39213 (hereinafter sometimes called the "Company"), and UNITED STATES
TRUST COMPANY OF NEW YORK, a corporation of the State of New York, whose
Corporate Trust Department post office address is 114 West 47th Street,
New York, New York 10036 (hereinafter sometimes called the "Corporate
Trustee"), and GERARD F. GANEY (successor to Malcolm J. Hood) whose post
office address is 114 West 47th Street, New York, New York 10036
(hereinafter sometimes called the "Co-Trustee"), as Trustees under the
Mortgage and Deed of Trust, dated as of June 15, 1977 (herein sometimes
called the "Original Indenture"), executed and delivered by the Company
(the Corporate Trustee and the Co-Trustee being hereinafter together
sometimes called the "Trustees" or individually sometimes called a
"Trustee");
WHEREAS, the Original Indenture (herein with all indentures
supplemental thereto called the "Indenture") provides for the issuance of
bonds in one or more series (hereinafter called the "bonds"); and
WHEREAS, the Indenture provides that the Company and the Trustees
may enter into indentures supplemental thereto for the purpose, among
others, of setting forth the terms and provisions of each series of bonds
from time to time issued; and
WHEREAS, the Company executed and delivered to the Trustees, as
supplements to the Original Indenture, the following supplemental
indentures:
Designation Dated as of
First Supplemental Indenture June 15, 1977
Second Supplemental Indenture January 1, 1980
Third Supplemental Indenture June 15, 1981
Fourth Supplemental Indenture June 1, 1984
Fifth Supplemental Indenture December 1, 1984
Sixth Supplemental Indenture May 1, 1985
Seventh Supplemental Indenture June 15, 1985
Eighth Supplemental Indenture May 1, 1986
Ninth Supplemental Indenture May 1, 1986
Tenth Supplemental Indenture September 1, 1986
Eleventh Supplemental Indenture September 1, 1986
Twelfth Supplemental Indenture September 1, 1986
Thirteenth Supplemental Indenture November 15, 1987
Fourteenth Supplemental Indenture December 1, 1987
Fifteenth Supplemental Indenture July 1, 1992
Sixteenth Supplemental Indenture October 1, 1992
Seventeenth Supplemental Indenture October 1, 1992
Eighteenth Supplemental Indenture April 1, 1993
Nineteenth Supplemental Indenture April 1, 1994
which supplemental indentures (hereinafter called the "First Supplemental
Indenture", "Second Supplemental Indenture", "Third Supplemental
Indenture", "Fourth Supplemental Indenture", "Fifth Supplemental
Indenture", "Sixth Supplemental Indenture", "Seventh Supplemental
Indenture", "Eighth Supplemental Indenture", "Ninth Supplemental
Indenture", "Tenth Supplemental Indenture", "Eleventh Supplemental
Indenture", "Twelfth Supplemental Indenture", "Thirteenth Supplemental
Indenture", "Fourteenth Supplemental Indenture", "Fifteenth Supplemental
Indenture", "Sixteenth Supplemental Indenture", "Seventeenth Supplemental
Indenture", "Eighteenth Supplemental Indenture" and "Nineteenth
Supplemental Indenture", respectively) were or are to be filed and
recorded in the real estate records of the office of the Chancery Clerk
of Claiborne County in the State of Mississippi, filed in the Uniform
Commercial Code records of the offices of the Chancery Clerks of
Claiborne County, Warren County and Hinds County (First Judicial
District) in the State of Mississippi, and filed with the Secretary of
State of the State of Mississippi; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Indenture, the following series of First Mortgage
Bonds:
Principal Amount
Outstanding at the Date
Principal Amount of the Initial Issue
Series Issued of the _______ Series
9.25% Series due 1989 $400,000,000 None
12.50% Series due 2000 $ 98,500,000 None
16% Series due 2000 $300,000,000 None
15 3/8% Series due 2000 $100,000,000 None
Pollution Control Series A $ 47,208,334 $ 47,208,334
Pollution Control Series B $ 95,643,750 $ 95,643,750
11% Series due 2000 $300,000,000 None
9 7/8% Series due 1991 $300,000,000 None
10 1/2% Series due 1996 $250,000,000 $250,000,000
11 3/8% Series due 2016 $200,000,000 $ 90,319,000
14% Series due 1994 $200,000,000 None
14.34% Series due 1992 $100,000,000 None
8.40% Series due 2002 $ 45,000,000 None
6.12% Series due 1995 $105,000,000 $105,000,000
8.25% Series due 2002 $ 70,000,000 $ 70,000,000
6% Series due 1998 $ 60,000,000 $ 60,000,000
7 5/8% Series due 1999 $ 60,000,000 $ 60,000,000
which bonds are also sometimes called bonds of the First through
_________ Series; and
WHEREAS, the Company has determined to create __________ new series
of bonds, and all things necessary to make this Supplemental Indenture a
valid, binding and legal instrument supplemental to the Indenture have
been performed and the issuance of said series of bonds, subject to the
terms of the Indenture, has been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: that in
order to set forth the terms and provisions of said series of bonds and
in consideration of the premises and of the purchase and acceptance of
said bonds by the holders thereof, and in consideration of the sum of One
Dollar by the Trustees to the Company paid, receipt whereof is hereby
acknowledged, the Company hereby agrees and provides, for the equal and
proportionate benefit of the respective holders from time to time of such
bonds, as follows:
I
DEFINITIONS AND RULES OF CONSTRUCTION.
1. Terms from the Indenture. The terms used in this Supplemental
Indenture which are defined in the Original Indenture, unless otherwise
specified herein, are used herein with the same meanings as in the
Original Indenture. None of the definitions or rules of construction
contained in the First through __________ Supplemental Indentures shall
apply or be used in this Supplemental Indenture (except to the extent
that such definitions or rules of construction are repeated verbatim
herein).
2. Definitions of New Terms. The following terms shall have the
following meanings in this Supplemental Indenture (regardless of any
definition of any such terms in the First through __________ Supplemental
Indentures):
Abandonment shall mean (i) the good faith decision by the Company to
abandon any material portion of the Grand Gulf Project as evidenced by a
Resolution of the Board of Directors of the Company followed by a
cessation of all operations (other than preservative maintenance) of such
material portion for a period of ninety (90) days, certified to in an
Officers' Certificate or (ii) the destruction of all or substantially all
of the Grand Gulf Project, certified to in an Officers' Certificate.
AP&L shall mean Arkansas Power & Light Company, an Arkansas
corporation.
Availability Agreement shall mean the Availability Agreement, dated
as of June 21, 1974, as amended from time to time, among the Company,
AP&L, LP&L, MP&L and NOPSI.
Basic Agreements shall mean the Availability Agreement, the Capital
Funds Agreement, the Sales Agreement, the System Agreement, the
____________ Supplementary Capital Funds Agreement and the ____________
Assignment of Availability Agreement.
Capital Funds Agreement shall mean the Capital Funds Agreement,
dated as of June 21, 1974, as it may be amended from time to time,
between Entergy and the Company.
Defeasance Trustee shall mean the Corporate Trustee if it, at its
option, elects to serve as a Defeasance Trustee or any other bank or
trust company having its principal office and place of business in the
Borough of Manhattan, The City of New York, and which shall at all times
(after the deposit of moneys or obligations pursuant to Section 9.01
hereof) be a corporation organized and doing business under the laws of
the United States or of any State or Territory or of the District of
Columbia, with a combined capital and surplus of at least One Hundred
Million Dollars ($100,000,000), and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
Eighth Series shall have the meaning set forth in Section 2.01 of
the Tenth Supplemental Indenture.
Eleventh Series shall have the meaning set forth in Section 2.01 of
the Thirteenth Supplemental Indenture.
Entergy shall mean Entergy Corporation, a Delaware corporation
(successor to Entergy Corporation, a Florida corporation).
Fifteenth Series shall have the meaning set forth in Section 2.01 of
the Seventeenth Supplemental Indenture.
Fifth Series shall have the meaning set forth in Section 2.01 of the
Seventh Supplemental Indenture.
First Series shall have the meaning set forth in Section 2.01 of the
First Supplemental Indenture.
First Unit of the Grand Gulf Project shall mean unit 1 of the Grand
Gulf Project, which was placed in commercial operation on July 1, 1985.
Fourteenth Series shall have the meaning set forth in Section 2.01
of the Sixteenth Supplemental Indenture.
Fourth Series shall have the meaning set forth in Section 2.01 of
the Sixth Supplemental Indenture.
General Redemption Prices shall have the meaning set forth in
Section 2.01 (a) hereof.
LP&L shall mean Louisiana Power & Light Company, a Louisiana
corporation.
MP&L shall mean Mississippi Power & Light Company, a Mississippi
corporation.
Ninth Series shall have the meaning set forth in Section 2.01 of the
Eleventh Supplemental Indenture.
NOPSI shall mean New Orleans Public Service Inc., a Louisiana
corporation.
Sales Agreement shall mean the Sales Agreement, dated as of June 21,
1974, between MP&L and the Company.
Second Series shall have the meaning set forth in Section 2.01 of
the Second Supplemental Indenture.
Second Unit of the Grand Gulf Project shall mean unit 2 of the Grand
Gulf Project, construction of which was suspended in 1985 and abandoned
in 1989 when the unit was canceled.
Services shall mean Entergy Services, Inc., a Delaware corporation.
Seventh Series shall have the meaning set forth in Section 2.01 of
the Ninth Supplemental Indenture.
Seventeenth Series shall have the meaning set forth in Section 2.01
of the Nineteenth Supplemental Indenture.
Sixteenth Series shall have the meaning set forth in Section 2.01 of
the Eighteenth Supplemental Indenture.
Sixth Series shall have the meaning set forth in Section 2.01 of the
Eighth Supplemental Indenture.
Special Industrial Development Revenue Bonds shall mean indebtedness
represented by securities, the interest payments to the holders of which
are exempt, in the opinion of bond counsel for any such securities, from
federal income taxation under Internal Revenue Code Section 103(c)(4) (or
a similar provision of such Code hereinafter enacted), issued by any
governmental authority to provide funds for pollution control facilities
for the Grand Gulf Project, the principal of and interest on which are to
be payable solely from funds provided by the Company to such governmental
authority by lease payments, conditional sale payments, or payments
pursuant to the provisions of contractual obligations (including bonds)
or otherwise.
Special Redemption Price shall have the meaning set forth in Section
2.01(b) hereof.
System Agreement shall mean the Agreement, dated April 23, 1982 and
effective January 1, 1983, as amended, and as it may be amended from time
to time, among AP&L, LP&L, MP&L and NOPSI, relating to the sharing of
generating capacity and other power resources.
System Companies shall mean AP&L, LP&L, MP&L, NOPSI and any other
operating subsidiary company of Entergy (as such term is defined in
Section 2(a)(8) of the Public Utility Holding Company Act of 1935 ) other
than the Company which shall become a party to the System Agreement.
Tenth Series shall have the meaning set forth in Section 2.01 of the
Twelfth Supplemental Indenture.
Third Series shall have the meaning set forth in Section 2.01 of the
Fifth Supplemental Indenture.
Thirteenth Series shall have the meaning set forth in Section 2.01
of the Fifteenth Supplemental Indenture.
Twelfth Series shall have the meaning set forth in Section 2.01 of
the Fourteenth Supplemental Indenture.
____________ Assignment of Availability Agreement shall mean the
____________ Assignment of Availability Agreement, Consent and Agreement,
dated as of _____________, among the Company, AP&L, LP&L, MP&L, NOPSI and
the Trustees.
____________ Supplementary Capital Funds Agreement shall mean the
____________ Supplementary Capital Funds Agreement and Assignment, dated
as of _____________, between Entergy, the Company and the Trustees.
3. Rules of Construction. All references to any agreement refer
to such agreement as modified, varied or amended from time to time by the
parties thereto (including any permitted successors or assigns) in
accordance with its terms.
II
THE ____________ SERIES.
1. Bonds of the ____________ Series. There shall be a series of bonds
issued pursuant to the Indenture designated "_____% Series due ____"
(herein sometimes referred to as the "____________ Series"). Each such
bond shall also bear the descriptive title First Mortgage Bond, and the
form thereof shall be substantially as set forth in Annex A hereto.
Bonds of the ____________ Series shall mature on _____________, and shall
be issued as fully registered bonds in denominations of $1,000 and, at
the option of the Company, in any multiple or multiples of $1,000 (the
exercise of such option to be evidenced by the execution and delivery
thereof); they shall bear interest at the rate of _____% per annum, until
the principal of any such bond shall have become due and payable, and
shall thereafter bear interest on any overdue principal, on any overdue
premium and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at the rate
of _____% per annum, the first interest payment to be made
_______________, for the period from _____________ to _______________,
with subsequent interest payments to be made semiannually on _________
and _________ of each year; the principal of and interest on each said
bond to be payable at the office or agency of the Company in the Borough
of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for
public and private debts.
(a) The bonds of the ____________ Series shall not be redeemable
at the option of the Company.
(b) The bonds of the ____________ Series shall be redeemable, in whole
or in part, at any time prior to maturity, upon notice mailed to each
registered holder at his last address appearing on the registry books not
less than thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption pursuant to the provisions of Section 4.01 or
Article V hereof or by the application of cash delivered to or deposited
with or held by the Corporate Trustee pursuant to the provisions of
Sections 8.05, 11.03, 11.04, 11.05 and 11.06 of the Original Indenture,
at a Special Redemption Price equal to the principal amount of the bonds
to be redeemed, together with accrued interest to the date fixed for
redemption.]
(c) In case of the redemption of only a part of the bonds of the
____________ Series, the particular bonds to be redeemed shall be
selected by the Corporate Trustee from the Outstanding bonds of such
series which have not previously been called for redemption, by such
method as the Corporate Trustee shall deem fair and appropriate.
(d) At the option of the registered owner, any bonds of the
____________ Series, upon surrender thereof for cancellation at the
office or agency of the Company in the Borough of Manhattan, The City of
New York, shall be exchangeable for a like aggregate principal amount of
bonds of the same series of other authorized denominations.
Bonds of the ____________ Series shall be transferable, upon the
surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the registrar duly executed by the
registered owner or by his duly authorized attorney, at the office or
agency of the Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the ____________ Series,
the Company may make a charge therefor sufficient to reimburse it for any
tax or taxes or other governmental charge, as provided in the Indenture,
but the Company hereby waives any right to make a charge in addition
thereto for any exchange or transfer of bonds of the ____________ Series.
III
ADDITIONAL BOND PROVISIONS.
1. Limit on Aggregate Amount. Bonds of the ____________ Series
shall be limited to _________ Million Dollars ($__________) in aggregate
principal amount at any one time Outstanding, except as provided in
Section 2.09 of the Original Indenture.
SECTION 3.02. Dating of Bonds and Interest Payments. Bonds of the
____________ Series shall be dated as provided in Section 2.03 of the
Original Indenture and bear interest from _____________, provided that if
any bond of the ____________ Series shall be authenticated and delivered
upon a transfer of, or in exchange for or in lieu of, any other bond or
bonds of the ____________ Series, it shall be dated so that such bond
shall bear interest from the last preceding date to which interest shall
have been paid on the bond or bonds in respect of which such bond shall
have been delivered.
Notwithstanding the foregoing, the person in whose name any bond of
the ____________ Series is registered at the close of business on any
record date for the ____________ Series with respect to any interest
payment shall be entitled to receive the interest payable on the interest
payment date (except that in case of any redemption of bonds as provided
for herein on a date subsequent to the record date for the ____________
Series and prior to such interest payment date, interest on such redeemed
bonds shall be payable only to the date fixed for redemption thereof and
only against surrender of such bonds for redemption in accordance with
the notice of such redemption) notwithstanding the cancellation of such
bond upon any transfer or exchange thereof subsequent to the record date
for the ____________ Series and prior to such interest payment date,
except if, and to the extent that, the Company shall default in the
payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the persons in whose names
Outstanding bonds of the ____________ Series are registered on the day
immediately preceding the date of payment of such defaulted interest. Any
bond of the ____________ Series issued upon any transfer or exchange
subsequent to the record date for the ____________ Series for any
interest payment date and prior to such interest payment date shall bear
interest from such interest payment date. The term "record date for the
____________ Series" as used with respect to any interest payment date
shall mean __________ for interest payable _________ and shall mean
____________ for interest payable ___________.
IV
ADDITIONAL COVENANTS.
1. Disposition of Property. Notwithstanding the provisions of
Sections 11.01 through 11.07, inclusive, of the Original Indenture, the
Company covenants that if it sells, assigns, transfers or otherwise
disposes of all or any part of the Mortgaged and Pledged Property and the
Company fails to file with the Corporate Trustee within thirty (30) days
thereafter an Officers' Certificate to the effect that such disposition
would not materially impair the continuing electrical generation
operations of the First Unit of the Grand Gulf Project allocable to the
Company, the Company will give prompt notice to the Trustee and to the
registered holders of bonds of the ____________ Series, and within sixty
(60) days of such disposition of the Mortgaged and Pledged Property it
will redeem all of the bonds of the ____________ Series then Outstanding
at the Special Redemption Price set forth in Section 2.01(b) hereof;
provided, however, that no such Officers' Certificate will be required to
be filed if the sale, assignment, transfer or other disposition of such
Mortgaged and Pledged Property does not adversely affect such continuing
electrical generation operations. Notwithstanding the above, the Company
is not required to redeem bonds of the ____________ Series as a result of
the following transactions so long as such transactions are in compliance
with Sections 11.01 through 11.07, inclusive, of the Original Indenture:
(a) transactions contemplated by and permitted under the provisions
of Article XVI of the Original Indenture (subject to the provisions of
Section 4.04 of the Fifth Supplemental Indenture);
(b) sales, assignments, transfers or other disposition of an
undivided interest in the Grand Gulf Project, if such transactions are
for the purpose of complying with an order or orders of a governmental
body having jurisdiction in the premises or for the purpose of complying
with the conditions of any construction permits issued to the Company by
the Nuclear Regulatory Commission (or any successor); provided, however,
that (i) any cash proceeds paid to and received by the Company (other
than in connection with a transaction involving assumption of
construction costs) shall be deposited with the Corporate Trustee, to be
held by it under the conditions set forth in Section 11.05 of the
Original Indenture, (ii) payment for any such transaction shall be in
cash or its equivalent paid to the Company, or by assumption of
construction costs and (iii) any co-owner or co-owners of the Grand Gulf
Project shall have waived any right it or they might have had to require
any partition or division of the Grand Gulf Project during the useful
life of the Project and shall have entered into an agreement with the
Company for the joint operation of the Grand Gulf Project specifying,
among other things, that it or they will share responsibility for the
operating costs of the Grand Gulf Project and that the Company shall
remain responsible for the operation of the Grand Gulf Project; and
provided further that the conditions specified in (iii) above shall be
deemed modified by any contrary requirements of the Nuclear Regulatory
Commission (or any successor agency). Upon any such operating agreement
becoming fully effective and binding, the rights of the Company
thereunder shall be immediately pledged as security under the Indenture,
and an Opinion of Counsel shall be delivered to the Trustees that it is
duly authorized, valid, binding and enforceable and has been effectively
pledged. The rights of the Company under any such operating agreement
shall remain pledged as security under the Indenture only for so long as
bonds of the ____________ Series shall remain Outstanding. The Company
shall be entitled to enter into modifications, amendments and supplements
to and replacements of any agreement embodying the obligations of the
Company set forth in this Section 4.01 (b) without the consent of the
holders of the ____________ Series bonds or the Trustees; provided,
however, that, prior to the execution and delivery of any such
modification, amendment, supplement or replacement, the Company shall
furnish to the Corporate Trustee an Opinion of Counsel to the effect that
the execution, delivery and performance by the Company of such
modification, amendment, supplement or replacement will not adversely
affect the rights of the holders of the ____________ Series bonds set
forth in this Section 4.01(b);
(c) leases (including without limitation any sale and leaseback by
the Company or any Subsidiary of the Company) of Nuclear Fuel;
(d) leases (including without limitation any sale and leaseback by
the Company or such Subsidiary) incurred in connection with Special
Industrial Development Revenue Bonds; and
(e) leases (including without limitation any sale and leaseback by
the Company or such Subsidiary) of construction equipment to be used
during the construction phase of the Grand Gulf Project, office space and
transportation, data processing and/or communications equipment.
Nothing in this Section shall limit releases of property in the
ordinary course of business otherwise permitted by this Supplemental
Indenture and the provisions of Sections 11.01 through 11.07 inclusive,
of the Original Indenture, particularly retirements for maintenance,
repairs and reconstruction purposes.
2. Security Interests in Certain Agreements. The Company
covenants that it will not transfer, pledge, assign or grant a security
interest in any of its right, title and interest in, to or under
(including its right to any moneys due or to become due under) any of the
Basic Agreements, except to the extent expressly permitted pursuant to or
recognized by the terms of the ____________ Supplementary Capital Funds
Agreement and the ____________ Assignment of Availability Agreement.
3. Capital Funds and Availability Agreements. The Company will
(i) duly perform all obligations to be performed by it under the Capital
Funds Agreement, the ____________ Supplementary Capital Funds Agreement,
the Availability Agreement and the ____________ Assignment of
Availability Agreement, (ii) promptly take any and all action (including,
without limitation, obtaining all orders, consents, permits, licenses and
approvals, and making all registrations, declarations and filings) as may
be necessary to enforce its rights under the Capital Funds Agreement, the
____________ Supplementary Capital Funds Agreement, the Availability
Agreement or the ____________ Assignment of Availability Agreement and to
enforce or secure the performance by the other parties thereto of their
respective obligations thereunder, and (iii) use its best efforts to
obtain all orders, consents, permits, licenses and approvals, and make
all registrations, declarations and filings, necessary to keep the
Capital Funds Agreement, the ____________ Supplementary Capital Funds
Agreement, the Availability Agreement and the ____________ Assignment of
Availability Agreement in full force and effect. In the event of any
material nonperformance by any party under the Capital Funds Agreement,
the ____________ Supplementary Capital Funds Agreement, the Availability
Agreement or the ____________ Assignment of Availability Agreement, the
Company agrees that it will (i) duly perform all obligations to be
performed by it under any other agreement for the sale of capacity and/or
energy from the Grand Gulf Project, (ii) promptly take any and all action
(including, without limitation, obtaining all orders, consents, permits,
licenses and approvals, and making all registrations, declarations and
filings) as may be necessary to enforce its rights under any other
agreement for the sale of capacity and/or energy from the Grand Gulf
Project and to enforce or secure the performance by the other parties
thereto of their respective obligations thereunder, and (iii) use its
best efforts to obtain all orders, consents, permits, licenses and
approvals, and make all registrations, declarations and filings necessary
to maintain any other agreement for the sale of capacity and/or energy
from the Grand Gulf Project in full force and effect.
V
PROVISIONS FOR RETIREMENT OF BONDS.
1. Redemption Upon Condemnation or Abandonment. If there should be
a condemnation or Abandonment of all or substantially all of the Grand
Gulf Project, the Company covenants that it will give prompt notice to
the Trustees and to the registered holders of bonds of the ____________
Series and that within sixty (60) days after a final order of such
condemnation or within sixty (60) days after the Abandonment, it will
redeem all of the bonds of the ____________ Series then Outstanding at
the Special Redemption Price.
VI
ADDITIONAL DEFAULTS.
SECTION 6.01. Additional Defaults so long as ____________ Series
Bonds Outstanding. The following events shall be additional Defaults so
long as the ____________ Series bonds are Outstanding:
(1) Entergy shall fail to supply or to cause to be supplied to the
Company or the Trustees, as the case may be, any amount of capital, or
any additional amount of capital, which Entergy shall be obligated to
supply to the Company pursuant to the ____________ Supplementary Capital
Funds Agreement within thirty (30) days after the date when Entergy shall
be obligated to supply such capital, or to cause such capital to be
supplied, to the Company;
(2) Default by Entergy or the Company in the observance or
performance of any other covenant or agreement contained in the
____________ Supplementary Capital Funds Agreement, and the continuance
of the same unremedied for a period of thirty (30) days after written
notice thereof, stating it is a notice of Default hereunder, shall have
been given to the Company by the Corporate Trustee or the holders of at
least fifteen per centum (15%) in principal amount of the ____________
Series bonds then Outstanding;
(3) Any System Company shall fail to pay or advance to the Company
or the Trustees, as the case may be, any amount which such System Company
shall be obligated to pay or advance to the Company pursuant to the
Availability Agreement and the ____________ Assignment of Availability
Agreement or the System Agreement (or would be obligated to pay or
advance under such agreements but for (i) the provisions of Section 7 of
the Availability Agreement or the equivalent provision of any agreement
substituted therefor, (ii) the bankruptcy or reorganization of any System
Company or the pendency of proceedings therefor, (iii) the condemnation
or seizure of control of all or substantially all of the properties of
any System Company by a governmental authority or (iv) the occurrence of
an event described in clause (i) or (ii) of paragraph (5) hereof) within
thirty (30) days after the date when such System Company shall be
obligated to pay or advance such amount (or would be obligated to pay but
for the events described in (i) through (iv) of this subsection) or any
of the parties thereto shall default in the performance of its
obligations contained in the first sentence of Section 4 of the
Availability Agreement (it being understood that if the entire amount of
such obligatory payment is deposited with the Corporate Trustee before
the expiration of such period of thirty (30) days, such Default shall no
longer be considered to be continuing under this Supplemental Indenture);
(4) Default by any System Company or the Company in the observance
or performance of any other covenant or agreement contained in the
Availability Agreement or the ____________ Assignment of Availability
Agreement, and the continuance of the same unremedied for a period of
thirty (30) days after written notice thereof, stating it is a notice of
Default hereunder, shall have been given to the Company by the Corporate
Trustee or the holders of at least fifteen per centum (15%) in principal
amount of the ____________ Series bonds then Outstanding;
(5) The ____________ Supplementary Capital Funds Agreement, the
Availability Agreement or the ____________ Assignment of Availability
Agreement shall, pursuant to a final binding judgment or order as to
which no further appeals are available, at any time for any reason (i)
cease to be in full force and effect or (ii) shall be declared to be null
and void, or the validity or enforceability thereof shall be contested by
any System Company, the Company or Entergy or any System Company, the
Company or Entergy shall deny that it has any or further liability
thereunder; unless (A) within forty-five (45) days after the occurrence
of any such event any System Company, the Company or Entergy, as the case
may be, shall have entered into a substitute Agreement and furnished the
Corporate Trustee an Officers' Certificate, confirmed by an opinion of an
investment banking firm appointed by the Board of Directors of the
Company and approved by the Corporate Trustee in the exercise of
reasonable care, to the effect that in the opinion of the signers, the
substitute Agreement offers (subject to obtaining necessary regulatory
approval, if any) equivalent security to the bonds of the ____________
Series, and (B) within one hundred and eighty (180) days after the
occurrence of such event any System Company, the Company or Entergy, as
the case may be, shall have obtained all necessary regulatory approvals
for the performance of such substitute agreement and shall have provided
to the Corporate Trustee an Opinion of Counsel to such effect and to the
effect that such substitute agreement is valid, binding and enforceable
in accordance with its terms, except as limited by bankruptcy, insolvency
or other laws affecting enforcement of creditors' rights;
(6) Entergy shall in any manner sell, assign, transfer, dispose of,
mortgage, pledge, encumber or otherwise create a security interest in any
shares of common stock of the Company or any of AP&L, LP&L, MP&L or
NOPSI, provided, however, that nothing herein contained shall prohibit
(i) the issuance of directors' qualifying shares or the satisfaction of
similar legal requirements or (ii) the disposition of the gas properties
directly or indirectly owned by AP&L or NOPSI or (iii) any merger or
consolidation permitted under Section 4.04 of the Fifth Supplemental
Indenture or (iv) any covenant by Entergy substantially to the effect
that it will not sell, assign, transfer, dispose of, mortgage, pledge,
encumber or otherwise create a security interest in any shares of common
stock of the Company or any of the System Companies; or
(7) The expiration of a period of ninety (90) days after the mailing
by the Corporate Trustee to the Company of a written demand (citing this
provision), or by the holders of fifteen per centum (15%) in principal
amount of the bonds at the time Outstanding hereunder (determined as
provided in Section 13.07 of the Original Indenture) to the Company and
to the Corporate Trustee of a written demand, that the Company perform a
specified covenant or agreement contained in the Original Indenture or
herein, which specified covenant or agreement the Company shall have
failed to perform prior to such mailing, unless the Company during such
period shall have performed such specified covenant or agreement. The
Corporate Trustee may, and, if requested in writing to do so by the
holders of a majority in principal amount of the bonds then Outstanding,
shall, make such demand.
VII
ADDITIONAL SECURITY FOR ____________ SERIES BONDS.
SECTION 7.01. Additional Security. In addition to the security
provided under the Indenture, the ____________ Assignment of Availability
Agreement and the ____________ Supplementary Capital Funds Agreement and
all proceeds therefrom, shall be for the sole and exclusive benefit of
the holders of the ____________ Series bonds then Outstanding, and any
enforcement thereof or remedy related thereto shall be for the benefit of
and subject to the direction and control of such holders in the same
manner as any remedy or means of enforcement relating to the Mortgaged
and Pledged Property are within the direction and control of the holders
of the ____________ Series bonds, and any proceeds therefrom shall be
applied for the exclusive benefit of the holders of the ____________
Series bonds in the same manner as set forth in Section 13.12 (Second) of
the Original Indenture.
VIII
DEFEASANCE.
1. Defeasance. In addition to the provisions of Section 18.01 of
the Original Indenture, the ____________ Series bonds and interest
obligations for the payment of which and bonds of the ____________ Series
for the redemption of which either (i) moneys in the necessary amount or
(ii) obligations of the United States of America which shall not contain
provisions permitting the redemption thereof at the option of the issuer,
the principal of and the interest on which when due, and without any
regard to reinvestment thereof, will, in the opinion of an independent
accountant, provide moneys which, together with the moneys, if any,
deposited with or held by the Defeasance Trustee, shall be sufficient to
pay when due the principal of, premium, if any, and interest due and to
become due on said ____________ Series, or portions thereof on the
redemption date or maturity date thereof, as the case may be, shall have
been deposited with the Defeasance Trustee, with irrevocable direction so
to apply the same, subject to the provisions of Section 20.03 of the
Original Indenture (with or without any additional right given to the
holders to surrender their bonds or obtain therefrom payment therefor
prior to the redemption date) shall for all purposes under the Indenture
including satisfying the Lien of the Indenture be deemed to have been
paid; provided that in case of redemption the notice requisite to the
validity of such redemption shall have been given or arrangements shall
have been made insuring to the satisfaction of the Corporate Trustee that
the same will be given.
IX
MISCELLANEOUS PROVISIONS.
1. Record Date. The holders of the ____________ Series bonds
shall be deemed to have consented and agreed that the Company may, but
shall not be obligated to, fix a record date for the purpose of
determining the holders of the ____________ Series bonds entitled to
consent, if any such consent is required, to any amendment or supplement
to the Indenture or the waiver of any provision thereof or any act to be
performed thereunder. If a record date is fixed, those persons who were
holders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such
persons continue to be holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
2. Titles. The titles of the several Articles and Sections of
this Supplemental Indenture and the table of contents shall not be deemed
to be any part thereof.
3. Counterparts. This Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
4. Waivers and Amendments. Any provision of this Supplemental
Indenture may be waived or amended with the written consent (in any
number of instruments of similar tenor executed by the holders of the
____________ Series bonds or by their attorneys appointed in writing) of
the holders of a majority or more in aggregate principal amount of the
____________ Series bonds then Outstanding, and no consent for any such
waiver or amendment shall be required by holders of bonds other than the
____________ Series bonds; provided, however, that without the consent of
the holder of a ____________ Series bond, no such waiver or amendment
shall (1) impair or affect the right of such holder to receive payment of
the principal of (and premium, if any) and interest (at the rates
stipulated therein) on such bond, on or after the respective due dates
expressed in such bond, or to institute suit for the enforcement of any
such payment on or after such respective dates, or (2) permit the
creation of any lien ranking prior to, or on a parity with, the Lien of
the Indenture with respect to any of the Mortgaged and Pledged Property,
or (3) permit the deprivation of any non-assenting ____________ Series
bondholder of a lien upon the Mortgaged and Pledged Property for the
security of his bonds, or (4) permit the reduction of the percentage
required by the provisions of this Section for the taking of any action
under this Section with respect to any ____________ Series bonds then
Outstanding.
5. Preconsent to Termination of Availability Agreement,
____________ Assignment of Availability Agreement, Capital Funds
Agreement and ____________ Supplementary Capital Funds Agreement. The
Company reserves the right to terminate the Availability Agreement, the
____________ Assignment of Availability Agreement, the Capital Funds
Agreement and the ____________ Supplementary Capital Funds Agreement, and
each holder of the bonds of the ____________ Series hereby consents to
such termination without any other further action by any holder of the
bonds of the ____________ Series, upon delivery to the Corporate Trustee
of an Officers' Certificate stating the following:
(a) (i) the Company's First Mortgage Bonds have been rated A3, A-, or
A- or better (or the equivalent thereof), by each of Moody's, Standard &
Poor's, and Duff & Phelps, respectively, or their successors, for at
least the 6 consecutive months preceding the date of such Officers'
Certificate; and
(ii) The Company has obtained written confirmation from each of
Moody's, Standard & Poor's, and Duff & Phelps, or their successors,
stating that as of the date of such Officers' Certificate and taking into
account the concurrent termination of the Availability Agreement, the
____________ Assignment of Availability Agreement, the Capital Funds
Agreement and the ____________ Supplementary Capital Funds Agreement that
the ratings of the Company's First Mortgage Bonds rated by such agency is
not less than A3, A-, or A- (or the equivalent thereof), respectively,
but written confirmation shall not be required from any such rating
agency (or any successor) which at the date of such Officers' Certificate
is either no longer in business or has unilaterally determined not to
rate the Company's First Mortgage Bonds; or
(b) (i) With respect to each series of bonds established prior to June
1, 1992, either (A) no bonds of such series remain Outstanding or (B) the
requisite number of the bonds of such series have consented to the
termination of the Availability Agreement, the Assignments, thereof, the
Capital Funds Agreement and the Supplements thereto; and (ii) the
Availability Agreement, the Assignments thereof, the Capital Funds
Agreement and the Supplements thereto, are similarly terminated as they
relate to all other outstanding series of bonds and all other
indebtedness of the Company or no longer apply or do not apply to any
other such series of bonds or indebtedness.
<PAGE>
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused its
corporate name to be hereunto affixed, and this instrument to be signed
and sealed by its President or one of its Vice Presidents or its
Treasurer, and its corporate seal to be attested by its Secretary,
Assistant Secretary or Assistant Treasurer for and in its behalf, and
United States Trust Company of New York, in token of its acceptance of
the trust hereby created, has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its Vice
Presidents or by one of its Assistant Vice Presidents and its corporate
seal to be attested by one of its Assistant Secretaries or one of its
Assistant Vice Presidents and Gerard F. Ganey for all like purposes has
hereunto set his hand and affixed his seal, all as of the ___ day of
___________.
SYSTEM ENERGY RESOURCES, INC.
By: _________________________
Vice President
Attest:
_________________________________
Assistant Secretary
Executed, sealed and delivered by System
Energy Resources, Inc. in the presence of:
_________________________________
_________________________________
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK
By:______________________________
Senior Vice President
Attest:
________________________
Assistant Vice President
Executed, sealed and delivered by United States
Trust Company of New York in the presence of:
________________________
________________________
_________________________________ [L.S.]
Gerard F. Ganey
Executed, sealed and delivered by Gerard F. Ganey
in the presence of:
________________________
________________________
<PAGE>
STATE OF LOUISIANA )
) .ss:
PARISH OF ORLEANS )
On this ____ day of ___________, before me, ______________, a Notary
Public duly qualified and acting within and for said Parish and State,
appeared in person the within named _______________ and
__________________, to me personally well known, who stated that they
were a ______________ and an ___________________, respectively, of SYSTEM
ENERGY RESOURCES, INC., an Arkansas corporation, and were duly authorized
in their respective capacities to execute the foregoing instrument for
and in the name and behalf of said corporation, and further stated and
acknowledged that they had so signed, executed and delivered said
foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
On this ____ day of ___________, before me appeared _______________,
to me personally known, who, being by me duly sworn, did say that he is a
______________ of SYSTEM ENERGY RESOURCES, INC., and that the seal
affixed to the above instrument is the corporate seal of said corporation
and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said
_______________, acknowledged said instrument to be the free act and deed
of said corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid Parish and State, on this ____ day of ___________, within
my jurisdiction, the within named _______________ and ______________, who
acknowledged that they are a ______________ and an ___________________,
respectively, of SYSTEM ENERGY RESOURCES, INC., an Arkansas corporation,
and that for and on behalf of said corporation, and as its act and deed,
they executed the above and foregoing instrument, after first having been
duly authorized by said corporation so to do.
On the ____ day of ___________, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he resides at _____________________________________; that he is
a ______________ of SYSTEM ENERGY RESOURCES, INC., the corporation
described in and which executed the above 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 order of the Board of
Directors of said corporation, and that he signed his name thereto by
like order.
Given under my hand and seal this ____ day of ___________.
____________________
Notary Public,
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this ____ day of ___________, before me, ____________________, a
Notary Public duly commissioned, qualified and acting within and for said
County and State, appeared _______________ and _____________________, to
me personally well known, who stated that they were a
_____________________ and an ________________________, respectively, of
UNITED STATES TRUST COMPANY OF NEW YORK, a corporation, and were duly
authorized in their respective capacities to execute the foregoing
instrument for and in the name and behalf of said corporation; and
further stated and acknowledged that they had so signed, executed and
delivered said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On this ____ day of ___________, before me appeared _______________,
to me personally known, who, being by me duly sworn, did say that he is a
_____________________ of UNITED STATES TRUST COMPANY OF NEW YORK, and
that the seal affixed to the above instrument is the corporate seal of
said corporation and that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Trustees, and said
_______________ acknowledged said instrument to be the free act and deed
of said corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid County and State, on this ____ day of ___________ within my
jurisdiction, the within named _______________ and _____________________,
who acknowledged that they are the _____________________ and
________________________, respectively of UNITED STATES TRUST COMPANY OF
NEW YORK, a New York corporation, and that for and on behalf of the said
corporation, and as its act and deed, they executed the above and
foregoing instrument, after first having been duly authorized by the
corporation so to do.
On this ____ day of ___________, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he resides at ________________________________________; that he
is a _____________________ of UNITED STATES TRUST COMPANY OF NEW YORK,
the corporation described in and which executed the above 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 order of the
Board of Trustees of said corporation, and that he signed his name
thereto by like order.
Given under my hand and seal this ____ day of ___________.
_________________________
Notary Public, State of New York
No.
Qualified in
Commission Expires
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this ____ day of ___________, before me, ____________________,
the undersigned officer, personally appeared GERARD F. GANEY, known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained.
On this ____ day of ___________, before me personally appeared
GERARD F. GANEY, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he executed the
same as his free act and deed.
Personally appeared before me, the undersigned authority in and for
the said County and State, on this ____ day of ___________ within my
jurisdiction, the within named GERARD F. GANEY, who acknowledged that he
executed the above and foregoing instrument.
On this ____ day of ___________, before me personally came GERARD F.
GANEY, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
Given under my hand and seal this ____ day of ___________.
_________________________
Notary Public, State of New York
No.
Qualified in
My Commission Expires
<PAGE>
ANNEX A
[FORM OF REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received, hereby
promises to pay to ______________ or registered assigns, on
_____________, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, Million Dollars
in such coin or currency of the United States of America as at the time
of payment is legal tender for public and private debts, and to pay to
the registered owner hereof interest thereon from the date hereof, at the
rate of _____% per annum in like coin or currency at said office or
agency on _______________ for the period from _____________ to
_______________ and thereafter on _________ and ___________ in each year,
until the principal of this bond shall have become due and payable, and
to pay interest on any overdue principal and on any overdue premium and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the rate of
_____% per annum, provided, that the interest so payable on any _________
or ___________ will, subject to certain exceptions set out in the
____________ Supplemental Indenture mentioned on the reverse hereof, be
paid to the person in whose name this bond (or any bond or bonds
previously outstanding in transfer or exchange for which this bond was
issued) is registered at the close of business on the ____________ or
____________, as the case may be, next preceding such interest payment
date.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this
bond to be signed in its corporate name by its President or one of its
Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries by his signature or a
facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By .............................
[Vice] President
Attest:
.............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By...........................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage Bonds, _____%
Series due ____, all bonds of all series issued and to be issued under
and equally secured (except insofar as any sinking or other fund,
established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series and as further specified therein) by a Mortgage and Deed of Trust
(herein, together with any indenture supplemental thereto including the
____________ Supplemental Indenture, called the Mortgage), dated as of
June 15, 1977, executed by the Company to United States Trust Company of
New York, as Corporate Trustee, and Gerard F. Ganey (successor to Malcolm
J. Hood), as Co-Trustee. Reference is made to the Mortgage and
particularly to the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth and ____________ Supplemental
Indentures to the Mortgage for a description of the property mortgaged
and pledged, the nature and extent of the security (including certain
additional security not given to all bonds), the rights of the holders of
the bonds and of the Trustees in respect thereof, the duties and
immunities of the Trustees and the terms and conditions upon which the
bonds are and are to be secured and the circumstances under which
additional bonds may be issued. With the consent of the Company and to
the extent permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or the rights of the holders of the bonds
and/or coupons and/or the terms and provisions of the Mortgage may be
modified or altered by such affirmative vote or votes of the holders of
bonds then outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in the Borough of Manhattan, The City
of New York, upon surrender and cancellation of this bond, and,
thereupon, a new fully registered bond of the same series for a like
principal amount will be issued to the transferee in exchange herefor as
provided in the Mortgage. Subject to the foregoing provisions as to the
person entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of receiving
payment and for all other purposes and neither the Company nor the
Trustees shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
As provided in the Mortgage, the Company shall not be required to
make transfers or exchanges of bonds of any series for a period of ten
(10) days next preceding any interest payment date for bonds of said
series, or next preceding any designation of bonds of said series to be
redeemed, and the Company shall not be required to make transfers or
exchanges of any bonds designated in whole or in part for redemption.
[The bonds of this series shall not be redeemable at the option of
the Company.]
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal amount of
the bonds to be redeemed, together with accrued interest to the date
fixed for redemption, all as more fully provided in the Mortgage.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director
of the Company or of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being
released by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Corporate Trustee by The
Depository Trust Company (55 Water Street, New York, New York) or its
successor (the "Depositary"), this bond may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificate to be issued is
registered in the name of Cede & Co., or such other name as requested by
an authorized representative of the Depositary and any amount payable
thereunder is made payable to Cede & Co., or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).]
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received, hereby
promises to pay to _______________ or registered assigns, on
_____________, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, Million Dollars
in such coin or currency of the United States of America as at the time
of payment is legal tender for public and private debts, and to pay to
the registered owner hereof interest thereon from the date hereof, at the
rate of _____% per annum in like coin or currency at said office or
agency on _______________ for the period from _____________ to
_______________ and thereafter on _________ and ___________ in each year,
until the principal of this bond shall have become due and payable, and
to pay interest on any overdue principal and on any overdue premium and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the rate of
_____% per annum, provided, that the interest so payable on any _________
or ___________ will, subject to certain exceptions set out in the
____________ Supplemental Indenture mentioned on the reverse hereof, be
paid to the person in whose name this bond (or any bond or bonds
previously outstanding in transfer or exchange for which this bond was
issued) is registered at the close of business on the ___________ or
____________, as the case may be, next preceding such interest payment
date.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this
bond to be signed in its corporate name by its President or one of its
Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries by his signature or a
facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By .......................
[Vice] President
Attest:
............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By............................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
This bond is a temporary bond and is one of an issue of bonds of the
Company issuable in series and is one of a series known as its First
Mortgage Bonds, _____% Series due ____, all bonds of all series issued
and to be issued under and equally secured (except insofar as any sinking
or other fund, established in accordance with the provisions of the
Mortgage hereinafter mentioned, may afford additional security for the
bonds of any particular series and as further specified therein) by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto including the ____________ Supplemental Indenture,
called the Mortgage), dated as of June 15, 1977, executed by the Company
to United States Trust Company of New York, as Corporate Trustee, and
Gerard F. Ganey (successor to Malcolm J. Hood), as Co-Trustee. Reference
is made to the Mortgage and particularly to the First, Second, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and
_____________ Supplemental Indentures to the Mortgage for a description
of the property mortgaged and pledged, the nature and extent of the
security (including certain additional security not given to all bonds),
the rights of the holders of the bonds and of the Trustees in respect
thereof, the duties and immunities of the Trustees and the terms and
conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. With the
consent of the Company and to the extent permitted by and as provided in
the Mortgage, the rights and obligations of the Company and/or the rights
of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage may be modified or altered by such affirmative
vote or votes of the holders of bonds then outstanding as are specified
in the Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in the Borough of Manhattan, The City
of New York, upon surrender and cancellation of this bond, and,
thereupon, a new fully registered bond of the same series for a like
principal amount will be issued to the transferee in exchange herefor as
provided in the Mortgage. Subject to the foregoing provisions as to the
person entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of receiving
payment and for all other purposes and neither the Company nor the
Trustees shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
In the manner prescribed in the Mortgage, this temporary bond is
exchangeable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, for a definitive bond or bonds of the
same series of a like principal amount when such definitive bonds are
prepared and ready for delivery.
As provided in the Mortgage, the Company shall not be required to
make transfers or exchanges of bonds of any series for a period of ten
(10) days next preceding any interest payment date for bonds of said
series, or next preceding any designation of bonds of said series to be
redeemed, and the Company shall not be required to make transfers or
exchanges of any bonds designated in whole or in part for redemption.
[The bonds of this series shall not be redeemable at the option of
the Company.]
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal amount of
the bonds to be redeemed, together with accrued interest to the date
fixed for redemption, all as more fully provided in the Mortgage.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director
of the Company or of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being
released by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial
holders hereof as then certified to the Corporate Trustee by The
Depository Trust Company (55 Water Street, New York, New York) or its
successor (the "Depositary"), this bond may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative
of the Depositary to the Company or its agent for registration of
transfer, exchange or payment, and any certificate to be issued is
registered in the name of Cede & Co., or such other name as requested by
an authorized representative of the Depositary and any amount payable
thereunder is made payable to Cede & Co., or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered in the
names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated bonds to beneficial owners (as
certified to the Company by the Depositary).]
EXHIBIT A-3
__________________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
UNITED STATES TRUST COMPANY OF NEW YORK
AND
GERARD F. GANEY
(Successor to Malcolm J. Hood),
Trustees.
___________________________________
__________ Supplemental Indenture
Dated as of _____________
TO
MORTGAGE AND DEED OF TRUST
Dated as of June 15, 1977.
___________________________________
Relating to $_____________ Principal Amount
of First Mortgage Bonds, Pollution Control Series ___
__________________________________________________
<PAGE>
TABLE OF CONTENTS*
Page
Parties
Recitals
ARTICLE I
Definitions and Rules of Construction
Section 1.01. Terms from the Indenture
Section 1.02. Definitions of New Terms
Abandonment
AP&L
Availability Agreement
Basic Agreements
Capital Funds Agreement
Eighth Series
Eleventh Series
Entergy
Fifteenth Series
Fifth Series
First Series
First Unit of the Grand Gulf Project
Fourteenth Series
Fourth Series
LP&L
MP&L
Ninth Series
NOPSI
Sales Agreement
Second Series
Second Unit of the Grand Gulf Project
Services
Seventh Series
Seventeenth Series
Sixteenth Series
Sixth Series
Special Industrial Development Revenue Bonds
System Agreement
System Companies
Tenth Series
Third Series
Thirteenth Series
Twelfth Series
____________ Assignment of Availability Agreement
____________ Supplementary Capital Funds Agreement
Section 1.03. Rules of Construction
___________
* The Table of Contents shall not be deemed to be any part of the
____________ Supplemental Indenture.
ARTICLE II
The ____________ Series
Section 2.01. Bonds of the ____________ Series
Section 2.02. Limit on Aggregate Amount
Section 2.03. Dating of Bonds and Interest Payments
ARTICLE III
Additional Covenants
Section 3.01. Disposition of Property
Section 3.02. Security Interests in Certain Agreements
Section 3.03. Capital Funds and Availability Agreements
ARTICLE IV
Condemnation or Abandonment
Section 4.01. Condemnation or Abandonment
ARTICLE V
Additional Defaults
Section 5.01. Additional Defaults so long as ____________ Series
Bonds Outstanding
ARTICLE VI
Additional Security for ____________ Series Bonds
Section 6.01. Additional Security
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Titles
Section 7.02. Counterparts
Section 7.03. Waivers and Amendments
Section 7.04. Preconsent to Termination of Availability Agreement,
____________ Assignment of Availability Agreement,
Capital Funds Agreement and ____________
Supplementary Capital Funds Agreement
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
ANNEX A
<PAGE>
____________ SUPPLEMENTAL INDENTURE, dated as of the ___ day of
___________, made and entered into by and between SYSTEM ENERGY
RESOURCES, INC., a corporation of the State of Arkansas, whose post
office address is Echelon One, 1340 Echelon Parkway, Jackson, Mississippi
39213 (hereinafter sometimes called the "Company"), and UNITED STATES
TRUST COMPANY OF NEW YORK, a corporation of the State of New York, whose
Corporate Trust Department post office address is 114 West 47th Street,
New York, New York 10036 (hereinafter sometimes called the "Corporate
Trustee"), and GERARD F. GANEY (successor to Malcolm J. Hood) whose post
office address is 114 West 47th Street, New York, New York 10036
(hereinafter sometimes called the "Co-Trustee"), as Trustees under the
Mortgage and Deed of Trust, dated as of June 15, 1977 (herein sometimes
called the "Original Indenture"), executed and delivered by the Company
(the Corporate Trustee and the Co-Trustee being hereinafter together
sometimes called the "Trustees" or individually sometimes called a
"Trustee");
WHEREAS, the Original Indenture (herein with all indentures
supplemental thereto called the "Indenture") provides for the issuance of
bonds in one or more series (hereinafter called the "bonds"); and
WHEREAS, the Indenture provides that the Company and the Trustees
may enter into indentures supplemental thereto for the purpose, among
others, of setting forth the terms and provisions of each series of bonds
from time to time issued; and
WHEREAS, the Company executed and delivered to the Trustees, as
supplements to the Original Indenture, the following supplemental
indentures:
Designation Dated as of
First Supplemental Indenture June 15, 1977
Second Supplemental Indenture January 1, 1980
Third Supplemental Indenture June 15, 1981
Fourth Supplemental Indenture June 1, 1984
Fifth Supplemental Indenture December 1, 1984
Sixth Supplemental Indenture May 1, 1985
Seventh Supplemental Indenture June 15, 1985
Eighth Supplemental Indenture May 1, 1986
Ninth Supplemental Indenture May 1, 1986
Tenth Supplemental Indenture September 1, 1986
Eleventh Supplemental Indenture September 1, 1986
Twelfth Supplemental Indenture September 1, 1986
Thirteenth Supplemental Indenture November 15, 1987
Fourteenth Supplemental Indenture December 1, 1987
Fifteenth Supplemental Indenture July 1, 1992
Sixteenth Supplemental Indenture October 1, 1992
Seventeenth Supplemental Indenture October 1, 1992
Eighteenth Supplemental Indenture April 1, 1993
Nineteenth Supplemental Indenture April 1, 1994
which supplemental indentures (hereinafter called the "First Supplemental
Indenture", "Second Supplemental Indenture", "Third Supplemental
Indenture", "Fourth Supplemental Indenture", "Fifth Supplemental
Indenture", "Sixth Supplemental Indenture", "Seventh Supplemental
Indenture", "Eighth Supplemental Indenture", "Ninth Supplemental
Indenture", "Tenth Supplemental Indenture", "Eleventh Supplemental
Indenture", "Twelfth Supplemental Indenture", "Thirteenth Supplemental
Indenture", "Fourteenth Supplemental Indenture", "Fifteenth Supplemental
Indenture", "Sixteenth Supplemental Indenture", "Seventeenth Supplemental
Indenture", "Eighteenth Supplemental Indenture" and "Nineteenth
Supplemental Indenture", respectively) were or are to be filed and
recorded in the real estate records of the office of the Chancery Clerk
of Claiborne County in the State of Mississippi, filed in the Uniform
Commercial Code records of the offices of the Chancery Clerks of
Claiborne County, Warren County and Hinds County (First Judicial
District) in the State of Mississippi, and filed with the Secretary of
State of the State of Mississippi; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Indenture, the following series of First Mortgage
Bonds:
Principal Amount
Outstanding at the Date
Principal Amount of the Initial Issue
Series Issued of the _________ Series
9.25% Series due 1989 $400,000,000 None
12.50% Series due 2000 $ 98,500,000 None
16% Series due 2000 $300,000,000 None
15 3/8% Series due 2000 $100,000,000 None
Pollution Control Series A $ 47,208,334 $ 47,208,334
Pollution Control Series B $ 95,643,750 $ 95,643,750
11% Series due 2000 $300,000,000 None
9 7/8% Series due 1991 $300,000,000 None
10 1/2% Series due 1996 $250,000,000 $250,000,000
11 3/8% Series due 2016 $200,000,000 $ 90,319,000
14% Series due 1994 $200,000,000 None
14.34% Series due 1992 $100,000,000 None
8.40% Series due 2002 $ 45,000,000 None
6.12% Series due 1995 $105,000,000 $105,000,000
8.25% Series due 2002 $ 70,000,000 $ 70,000,000
6% Series due 1998 $ 60,000,000 $ 60,000,000
7 5/8% Series due 1999 $ 60,000,000 $ 60,000,000
which bonds are also sometimes called bonds of the First through
_________ Series; and
WHEREAS, the Company has determined to create __________ new series
of bonds, and all things necessary to make this Supplemental Indenture a
valid, binding and legal instrument supplemental to the Indenture have
been performed and the issuance of said series of bonds, subject to the
terms of the Indenture, has been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: that in
order to set forth the terms and provisions of said series of bonds and
in consideration of the premises and of the purchase and acceptance of
said bonds by the holders thereof, and in consideration of the sum of One
Dollar by the Trustees to the Company paid, receipt whereof is hereby
acknowledged, the Company hereby agrees and provides, for the equal and
proportionate benefit of the respective holders from time to time of such
bonds, as follows:
I
DEFINITIONS AND RULES OF CONSTRUCTION.
1. Terms from the Indenture. The terms used in this Supplemental
Indenture which are defined in the Original Indenture, unless otherwise
specified herein, are used herein with the same meanings as in the
Original Indenture. None of the definitions or rules of construction
contained in the First through __________ Supplemental Indentures shall
apply or be used in this Supplemental Indenture (except to the extent
that such definitions or rules of construction are repeated verbatim
herein).
2. Definitions of New Terms. The following terms shall have the
following meanings in this Supplemental Indenture (regardless of any
definition of any such terms in the First through __________ Supplemental
Indentures):
Abandonment shall mean (i) the good faith decision by the Company to
abandon any material portion of the Grand Gulf Project as evidenced by a
Resolution of the Board of Directors of the Company followed by a
cessation of all operations (other than preservative maintenance) of such
material portion for a period of ninety (90) days, certified to in an
Officers' Certificate or (ii) the destruction of all or substantially all
of the Grand Gulf Project, certified to in an Officers' Certificate.
AP&L shall mean Arkansas Power & Light Company, an Arkansas
corporation.
Availability Agreement shall mean the Availability Agreement, dated
as of June 21, 1974, as amended from time to time, among the Company,
AP&L, LP&L, MP&L and NOPSI.
Basic Agreements shall mean the Availability Agreement, the Capital
Funds Agreement, the Sales Agreement, the System Agreement, the
____________ Supplementary Capital Funds Agreement and the ____________
Assignment of Availability Agreement.
Capital Funds Agreement shall mean the Capital Funds Agreement,
dated as of June 21, 1974, as it may be amended from time to time,
between Entergy and the Company.
Eighth Series shall have the meaning set forth in Section 2.01 of
the Tenth Supplemental Indenture.
Eleventh Series shall have the meaning set forth in Section 2.01 of
the Thirteenth Supplemental Indenture.
Entergy shall mean Entergy Corporation, a Delaware corporation
(successor to Entergy Corporation, a Florida corporation).
Fifteenth Series shall have the meaning set forth in Section 2.01 of
the Seventeenth Supplemental Indenture.
Fifth Series shall have the meaning set forth in Section 2.01 of the
Seventh Supplemental Indenture.
First Series shall have the meaning set forth in Section 2.01 of the
First Supplemental Indenture.
First Unit of the Grand Gulf Project shall mean unit 1 of the Grand
Gulf Project, which was placed in commercial operation on July 1, 1985.
Fourteenth Series shall have the meaning set forth in Section 2.01
of the Sixteenth Supplemental Indenture.
Fourth Series shall have the meaning set forth in Section 2.01 of
the Sixth Supplemental Indenture.
LP&L shall mean Louisiana Power & Light Company, a Louisiana
corporation.
MP&L shall mean Mississippi Power & Light Company, a Mississippi
corporation.
Ninth Series shall have the meaning set forth in Section 2.01 of the
Eleventh Supplemental Indenture.
NOPSI shall mean New Orleans Public Service Inc., a Louisiana
corporation.
Sales Agreement shall mean the Sales Agreement, dated as of June 21,
1974, between MP&L and the Company.
Second Series shall have the meaning set forth in Section 2.01 of
the Second Supplemental Indenture.
Second Unit of the Grand Gulf Project shall mean unit 2 of the Grand
Gulf Project, construction of which was suspended in 1985 and abandoned
in 1989 when the unit was canceled.
Services shall mean Entergy Services, Inc., a Delaware corporation.
Seventh Series shall have the meaning set forth in Section 2.01 of
the Ninth Supplemental Indenture.
Seventeenth Series shall have the meaning set forth in Section 2.01
of the Nineteenth Supplemental Indenture.
Sixteenth Series shall have the meaning set forth in Section 2.01 of
the Eighteenth Supplemental Indenture.
Sixth Series shall have the meaning set forth in Section 2.01 of the
Eighth Supplemental Indenture.
Special Industrial Development Revenue Bonds shall mean indebtedness
represented by securities, the interest payments to the holders of which
are exempt, in the opinion of bond counsel for any such securities, from
federal income taxation under Internal Revenue Code Section 103(c)(4) (or
a similar provision of such Code hereinafter enacted), issued by any
governmental authority to provide funds for pollution control facilities
for the Grand Gulf Project, the principal of and interest on which are to
be payable solely from funds provided by the Company to such governmental
authority by lease payments, conditional sale payments, or payments
pursuant to the provisions of contractual obligations (including bonds)
or otherwise.
System Agreement shall mean the Agreement, dated April 23, 1982 and
effective January 1, 1983, as amended, and as it may be amended from time
to time, among AP&L, LP&L, MP&L and NOPSI, relating to the sharing of
generating capacity and other power resources.
System Companies shall mean AP&L, LP&L, MP&L, NOPSI and any other
operating subsidiary company of Entergy (as such term is defined in
Section 2(a)(8) of the Public Utility Holding Company Act of 1935 ) other
than the Company which shall become a party to the System Agreement.
Tenth Series shall have the meaning set forth in Section 2.01 of the
Twelfth Supplemental Indenture.
Third Series shall have the meaning set forth in Section 2.01 of the
Fifth Supplemental Indenture.
Thirteenth Series shall have the meaning set forth in Section 2.01
of the Fifteenth Supplemental Indenture.
Twelfth Series shall have the meaning set forth in Section 2.01 of
the Fourteenth Supplemental Indenture.
____________ Assignment of Availability Agreement shall mean the
____________ Assignment of Availability Agreement, Consent and Agreement,
dated as of _____________, among the Company, AP&L, LP&L, MP&L, NOPSI and
the Trustees.
____________ Supplementary Capital Funds Agreement shall mean the
____________ Supplementary Capital Funds Agreement and Assignment, dated
as of _____________, between Entergy, the Company and the Trustees.
3. Rules of Construction. All references to any agreement refer
to such agreement as modified, varied or amended from time to time by the
parties thereto (including any permitted successors or assigns) in
accordance with its terms.
II
THE ____________ SERIES.
1. Bonds of the ____________ Series. There shall be a series of bonds
issued pursuant to the Indenture designated "Pollution Control Series due
____" (herein sometimes referred to as the "____________ Series"). Each
such bond shall also bear the descriptive title First Mortgage Bond, and
the form thereof shall be substantially as set forth in Annex A hereto.
Bonds of the ____________ Series shall mature on _____________, and shall
be issued as fully registered bonds in denominations of $1,000 and, at
the option of the Company, in any multiple or multiples of $1,000 (the
exercise of such option to be evidenced by the execution and delivery
thereof); the principal of each said bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America at the time of
payment is legal tender for public and private debts.
(I) The bonds of the _____ Series shall be issued and delivered to,
and registered in the name of, the trustee under the Indenture of Trust,
dated as of ________________ (hereinafter called the "__________
Indenture"), of __________ County, Mississippi (hereinafter called the
"County") relating to its Pollution Control Revenue Bonds, Series _____
(System Energy Resources, Inc. Project) (hereinafter called the "Series
___ Revenue Bonds"), in order to evidence and secure the Company's
obligation to make certain payments under the __________ Agreement, dated
as of _______________, between the County and the Company.
The obligation of the Company to make any payment of principal of
the bonds of the _____ Series, whether at maturity, upon redemption or
otherwise, shall be reduced by the amount of any reduction under the
__________ Indenture of the amount of the corresponding payment required
to be made by the County thereunder in respect of the principal of the
Series ___ Revenue Bonds plus ____-twelfths (__/12) of the annual
interest which was due on the principal amount of the Series ___ Revenue
Bonds so reduced.
(II) In the event that any Series ___ Revenue Bonds outstanding
under the __________ Indenture shall become immediately due and payable
pursuant to Section ____ of the __________ Indenture, then upon the
occurrence of an Event of Default under Section _______ or ___ of said
__________ Indenture all bonds of the _____ Series then outstanding shall
be redeemed by the Company, on the date such Series ___Revenue Bonds
shall have become immediately due and payable, at the principal amount
thereof.
The Corporate Trustee may conclusively presume that no redemption of
bonds of the _____ Series is required pursuant to this subsection (II)
unless and until it shall have received a written notice (including a
telex, telegram, telecopy or other form of written telecommunication)
form the trustee under the __________ Indenture, signed by its President,
a Vice President or a Trust Officer, stating that the Series ___ Revenue
Bonds have become immediately due and payable pursuant to Section ____ of
the __________ Indenture, resulting in an Event of Default under Section
_______ or ___ of said __________ Indenture, and specifying the principal
amount thereof, as the case may be. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the __________
Indenture, as the holder of all the bonds of the _____ Series then
Outstanding.
(III) At the option of the registered owner, any bonds of the _____
Series, upon surrender thereof for cancellation at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
together with a written instrument of transfer wherever required by the
Company, duly executed by the registered owner or by his duly authorized
attorney, shall (subject to the provisions of Section 2.05 of the
Original Indenture) be exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
Bonds of the _____ Series shall not be transferable except to any
successor trustee under the __________ Indenture, any such transfer to be
made (subject to the provisions of Section 2.05 of the Original
Indenture) at the office or agency of the Company in the Borough of
Manhattan, The City of New York.
The Company hereby waives any right to make a charge for any
exchange or transfer of bonds of the _____ Series.
(IV) The bonds of the _____ Series may bear such legends as may be
necessary to comply with any law or with any rules or regulations made
pursuant thereto or with the rules or regulations of any stock exchange
or to conform to usage with respect thereto.
2. Limit on Aggregate Amount. Bonds of the ____________ Series
shall be limited to _________ Million Dollars ($__________) in aggregate
principal amount at any one time Outstanding, except as provided in
Section 2.09 of the Original Indenture.
3. Dating of Bonds. Bonds of the ____________ Series shall be
dated ________________.
III
ADDITIONAL COVENANTS.
1. Disposition of Property. Notwithstanding the provisions of
Sections 11.01 through 11.07, inclusive, of the Original Indenture, the
Company covenants that if it sells, assigns, transfers or otherwise
disposes of all or any part of the Mortgaged and Pledged Property and the
Company fails to file with the Corporate Trustee within thirty (30) days
thereafter an Officers' Certificate to the effect that such disposition
would not materially impair the continuing electrical generation
operations of the First Unit of the Grand Gulf Project allocable to the
Company, the Company will give prompt notice to the Trustee and to the
registered holder of bonds of the ____________ Series ("Disposition
Notice"); provided, however, that no such Officers' Certificate or
Disposition Notice will be required to be filed if the sale, assignment,
transfer or other disposition of such Mortgaged and Pledged Property does
not adversely affect such continuing electrical generation operations.
Notwithstanding the above, the Company is not required to file a
Disposition Notice as a result of the following transactions so long as
such transactions are in compliance with Sections 11.01 through 11.07,
inclusive, of the Original Indenture:
(a) transactions contemplated by and permitted under the provisions
of Article XVI of the Original Indenture (subject to the provisions of
Section 4.04 of the Fifth Supplemental Indenture);
(b) sales, assignments, transfers or other disposition of an
undivided interest in the Grand Gulf Project, if such transactions are
for the purpose of complying with an order or orders of a governmental
body having jurisdiction in the premises or for the purpose of complying
with the conditions of any construction permits issued to the Company by
the Nuclear Regulatory Commission (or any successor); provided, however,
that (i) any cash proceeds paid to and received by the Company (other
than in connection with a transaction involving assumption of
construction costs) shall be deposited with the Corporate Trustee, to be
held by it under the conditions set forth in Section 11.05 of the
Original Indenture, (ii) payment for any such transaction shall be in
cash or its equivalent paid to the Company, or by assumption of
construction costs and (iii) any co-owner or co-owners of the Grand Gulf
Project shall have waived any right it or they might have had to require
any partition or division of the Grand Gulf Project during the useful
life of the Project and shall have entered into an agreement with the
Company for the joint operation of the Grand Gulf Project specifying,
among other things, that it or they will share responsibility for the
operating costs of the Grand Gulf Project and that the Company shall
remain responsible for the operation of the Grand Gulf Project; and
provided further that the conditions specified in (iii) above shall be
deemed modified by any contrary requirements of the Nuclear Regulatory
Commission (or any successor agency). Upon any such operating agreement
becoming fully effective and binding, the rights of the Company
thereunder shall be immediately pledged as security under the Indenture,
and an Opinion of Counsel shall be delivered to the Trustees that it is
duly authorized, valid, binding and enforceable and has been effectively
pledged. The rights of the Company under any such operating agreement
shall remain pledged as security under the Indenture only for so long as
bonds of the ____________ Series shall remain Outstanding. The Company
shall be entitled to enter into modifications, amendments and supplements
to and replacements of any agreement embodying the obligations of the
Company set forth in this Section 3.01 (b) without the consent of the
holder of the ____________ Series bonds or the Corporate Trustee;
provided, however, that, prior to the execution and delivery of any such
modification, amendment, supplement or replacement, the Company shall
furnish to the Corporate Trustee an Opinion of Counsel to the effect that
the execution, delivery and performance by the Company of such
modification, amendment, supplement or replacement will not adversely
affect the rights of the holder of the ____________ Series bonds set
forth in this Section 3.01(b);
(c) leases (including without limitation any sale and leaseback by
the Company or any Subsidiary of the Company) of Nuclear Fuel;
(d) leases (including without limitation any sale and leaseback by
the Company or such Subsidiary) incurred in connection with Special
Industrial Development Revenue Bonds; and
(e) leases (including without limitation any sale and leaseback by
the Company or such Subsidiary) of construction equipment to be used
during the construction phase of the Grand Gulf Project, office space and
transportation, data processing and/or communications equipment.
Nothing in this Section shall limit releases of property in the
ordinary course of business otherwise permitted by this Supplemental
Indenture and the provisions of Sections 11.01 through 11.07 inclusive,
of the Original Indenture, particularly retirements for maintenance,
repairs and reconstruction purposes.
2. Security Interests in Certain Agreements. The Company
covenants that it will not transfer, pledge, assign or grant a security
interest in any of its right, title and interest in, to or under
(including its right to any moneys due or to become due under) any of the
Basic Agreements, except to the extent expressly permitted pursuant to or
recognized by the terms of the ____________ Supplementary Capital Funds
Agreement and the ____________ Assignment of Availability Agreement.
3. Capital Funds and Availability Agreements. The Company will
(i) duly perform all obligations to be performed by it under the Capital
Funds Agreement, the ____________ Supplementary Capital Funds Agreement,
the Availability Agreement and the ____________ Assignment of
Availability Agreement, (ii) promptly take any and all action (including,
without limitation, obtaining all orders, consents, permits, licenses and
approvals, and making all registrations, declarations and filings) as may
be necessary to enforce its rights under the Capital Funds Agreement, the
____________ Supplementary Capital Funds Agreement, the Availability
Agreement or the ____________ Assignment of Availability Agreement and to
enforce or secure the performance by the other parties thereto of their
respective obligations thereunder, and (iii) use its best efforts to
obtain all orders, consents, permits, licenses and approvals, and make
all registrations, declarations and filings, necessary to keep the
Capital Funds Agreement, the ____________ Supplementary Capital Funds
Agreement, the Availability Agreement and the ____________ Assignment of
Availability Agreement in full force and effect. In the event of any
material nonperformance by any party under the Capital Funds Agreement,
the ____________ Supplementary Capital Funds Agreement, the Availability
Agreement or the ____________ Assignment of Availability Agreement, the
Company agrees that it will (i) duly perform all obligations to be
performed by it under any other agreement for the sale of capacity and/or
energy from the Grand Gulf Project, (ii) promptly take any and all action
(including, without limitation, obtaining all orders, consents, permits,
licenses and approvals, and making all registrations, declarations and
filings) as may be necessary to enforce its rights under any other
agreement for the sale of capacity and/or energy from the Grand Gulf
Project and to enforce or secure the performance by the other parties
thereto of their respective obligations thereunder, and (iii) use its
best efforts to obtain all orders, consents, permits, licenses and
approvals, and make all registrations, declarations and filings necessary
to maintain any other agreement for the sale of capacity and/or energy
from the Grand Gulf Project in full force and effect.
IV
CONDEMNATION OR ABANDONMENT
1. Condemnation or Abandonment. If there should be a condemnation
or Abandonment of all or substantially all of the Grand Gulf Project, the
Company covenants that it will give prompt notice to the Trustees and to
the registered holder of bonds of the ____________ Series of a final
order of such condemnation of the Abandonment.
V
ADDITIONAL DEFAULTS.
SECTION 5.01. Additional Defaults so long as ____________ Series
Bonds Outstanding. The following events shall be additional Defaults so
long as the ____________ Series bonds are Outstanding:
(1) Entergy shall fail to supply or to cause to be supplied to the
Company or the Trustees, as the case may be, any amount of capital, or
any additional amount of capital, which Entergy shall be obligated to
supply to the Company pursuant to the ____________ Supplementary Capital
Funds Agreement within thirty (30) days after the date when Entergy shall
be obligated to supply such capital, or to cause such capital to be
supplied, to the Company;
(2) Default by Entergy or the Company in the observance or
performance of any other covenant or agreement contained in the
____________ Supplementary Capital Funds Agreement, and the continuance
of the same unremedied for a period of thirty (30) days after written
notice thereof, stating it is a notice of Default hereunder, shall have
been given to the Company by the Corporate Trustee or the holders of at
least fifteen per centum (15%) in principal amount of the ____________
Series bonds then Outstanding;
(3) Any System Company shall fail to pay or advance to the Company
or the Trustees, as the case may be, any amount which such System Company
shall be obligated to pay or advance to the Company pursuant to the
Availability Agreement and the ____________ Assignment of Availability
Agreement or the System Agreement (or would be obligated to pay or
advance under such agreements but for (i) the provisions of Section 7 of
the Availability Agreement or the equivalent provision of any agreement
substituted therefor, (ii) the bankruptcy or reorganization of any System
Company or the pendency of proceedings therefor, (iii) the condemnation
or seizure of control of all or substantially all of the properties of
any System Company by a governmental authority or (iv) the occurrence of
an event described in clause (i) or (ii) of paragraph (5) hereof) within
thirty (30) days after the date when such System Company shall be
obligated to pay or advance such amount (or would be obligated to pay but
for the events described in (i) through (iv) of this subsection) or any
of the parties thereto shall default in the performance of its
obligations contained in the first sentence of Section 4 of the
Availability Agreement (it being understood that if the entire amount of
such obligatory payment is deposited with the Corporate Trustee before
the expiration of such period of thirty (30) days, such Default shall no
longer be considered to be continuing under this Supplemental Indenture);
(4) Default by any System Company or the Company in the observance
or performance of any other covenant or agreement contained in the
Availability Agreement or the ____________ Assignment of Availability
Agreement, and the continuance of the same unremedied for a period of
thirty (30) days after written notice thereof, stating it is a notice of
Default hereunder, shall have been given to the Company by the Corporate
Trustee or the holders of at least fifteen per centum (15%) in principal
amount of the ____________ Series bonds then Outstanding;
(5) The ____________ Supplementary Capital Funds Agreement, the
Availability Agreement or the ____________ Assignment of Availability
Agreement shall, pursuant to a final binding judgment or order as to
which no further appeals are available, at any time for any reason (i)
cease to be in full force and effect or (ii) shall be declared to be null
and void, or the validity or enforceability thereof shall be contested by
any System Company, the Company or Entergy or any System Company, the
Company or Entergy shall deny that it has any or further liability
thereunder; unless (A) within forty-five (45) days after the occurrence
of any such event any System Company, the Company or Entergy, as the case
may be, shall have entered into a substitute Agreement and furnished the
Corporate Trustee an Officers' Certificate, confirmed by an opinion of an
investment banking firm appointed by the Board of Directors of the
Company and approved by the Corporate Trustee in the exercise of
reasonable care, to the effect that in the opinion of the signers, the
substitute Agreement offers (subject to obtaining necessary regulatory
approval, if any) equivalent security to the bonds of the ____________
Series, and (B) within one hundred and eighty (180) days after the
occurrence of such event any System Company, the Company or Entergy, as
the case may be, shall have obtained all necessary regulatory approvals
for the performance of such substitute agreement and shall have provided
to the Corporate Trustee an Opinion of Counsel to such effect and to the
effect that such substitute agreement is valid, binding and enforceable
in accordance with its terms, except as limited by bankruptcy, insolvency
or other laws affecting enforcement of creditors' rights;
(6) Entergy shall in any manner sell, assign, transfer, dispose of,
mortgage, pledge, encumber or otherwise create a security interest in any
shares of common stock of the Company or any of AP&L, LP&L, MP&L or
NOPSI, provided, however, that nothing herein contained shall prohibit
(i) the issuance of directors' qualifying shares or the satisfaction of
similar legal requirements or (ii) the disposition of the gas properties
directly or indirectly owned by AP&L or NOPSI or (iii) any merger or
consolidation permitted under Section 4.04 of the Fifth Supplemental
Indenture or (iv) any covenant by Entergy substantially to the effect
that it will not sell, assign, transfer, dispose of, mortgage, pledge,
encumber or otherwise create a security interest in any shares of common
stock of the Company or any of the System Companies; or
(7) The expiration of a period of ninety (90) days after the mailing
by the Corporate Trustee to the Company of a written demand (citing this
provision), or by the holders of fifteen per centum (15%) in principal
amount of the bonds at the time Outstanding hereunder (determined as
provided in Section 13.07 of the Original Indenture) to the Company and
to the Corporate Trustee of a written demand, that the Company perform a
specified covenant or agreement contained in the Original Indenture or
herein, which specified covenant or agreement the Company shall have
failed to perform prior to such mailing, unless the Company during such
period shall have performed such specified covenant or agreement. The
Corporate Trustee may, and, if requested in writing to do so by the
holders of a majority in principal amount of the bonds then Outstanding,
shall, make such demand.
VI
ADDITIONAL SECURITY FOR ____________ SERIES BONDS.
SECTION 6.01. Additional Security. In addition to the security
provided under the Indenture, the ____________ Assignment of Availability
Agreement and the ____________ Supplementary Capital Funds Agreement and
all proceeds therefrom received by the Trustees shall be for the sole and
exclusive benefit of the holder of the ____________ Series bonds then
Outstanding as Trustee for the holders of the Series ___ Revenue Bonds
and enforcement of the Trustees' rights therein or remedy related thereto
shall be for the benefit of and subject to the direction and control of
the holder of the ______ Series bonds in the same manner as any remedy or
means of enforcement relating to the Mortgaged and Pledged Property are
within the direction and control of the holder of the ____________ Series
bonds and any proceeds therefrom shall be applied for the exclusive
benefit of the holder of the ____________ Series bonds as Trustee for the
holders of the Series ___ Revenue Bonds in the same manner as set forth
in Section 13.12 (Second) of the Original Indenture.
VII
MISCELLANEOUS PROVISIONS.
1. Titles. The titles of the several Articles and Sections of this
Supplemental Indenture and the table of contents shall not be deemed to
be any part thereof.
2. Counterparts. This Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
3. Waivers and Amendments. Any provision of this Supplemental
Indenture may be waived or amended only with the written consent of the
holder of the _____ Series bonds then Outstanding, and no consent for any
such waiver or amendment shall be required by holders of bonds other than
the _____ Series bonds. The holder of the _____ Series bonds shall
consent to such waiver or amendment when required in accordance with the
terms of the __________ Indenture.
The Trustees shall, at the request of the holder of the _____ Series
bonds, become parties to any instrument amending, waiving, modifying,
discharging or otherwise changing the __________ Assignment of
Availability Agreement, the __________ Supplementary Capital Funds
Agreement or the Availability Agreement. The holder of the _____ Series
bonds then Outstanding shall so request such amendment, waiver,
modification, discharge or other change in accordance with the terms of
the __________ Indenture.
4. Preconsent to Termination of Availability Agreement,
____________ Assignment of Availability Agreement, Capital Funds
Agreement and ____________ Supplementary Capital Funds Agreement. The
Company reserves the right to terminate the Availability Agreement, the
____________ Assignment of Availability Agreement, the Capital Funds
Agreement and the ____________ Supplementary Capital Funds Agreement, and
the holder of the bonds of the ____________ Series hereby consents to
such termination without any other further action by the holder of the
bonds of the ____________ Series, upon delivery to the Corporate Trustee
of an Officers' Certificate stating the following:
(a) (i) the Company's First Mortgage Bonds have been rated A3, A-, or
A- or better (or the equivalent thereof), by each of Moody's, Standard &
Poor's, and Duff & Phelps, respectively, or their successors, for at
least the 6 consecutive months preceding the date of such Officers'
Certificate; and
(ii) The Company has obtained written confirmation from each of
Moody's, Standard & Poor's, and Duff & Phelps, or their successors,
stating that as of the date of such Officers' Certificate and taking into
account the concurrent termination of the Availability Agreement, the
____________ Assignment of Availability Agreement, the Capital Funds
Agreement and the ____________ Supplementary Capital Funds Agreement that
the ratings of the Company's First Mortgage Bonds rated by such agency is
not less than A3, A-, or A- (or the equivalent thereof), respectively,
but written confirmation shall not be required from any such rating
agency (or any successor) which at the date of such Officers' Certificate
is either no longer in business or has unilaterally determined not to
rate the Company's First Mortgage Bonds; or
(b) (i) With respect to each series of bonds established prior to June
1, 1992, either (A) no bonds of such series remain Outstanding or (B) the
requisite number of the bonds of such series have consented to the
termination of the Availability Agreement, the Assignments, thereof, the
Capital Funds Agreement and the Supplements thereto; and (ii) the
Availability Agreement, the Assignments thereof, the Capital Funds
Agreement and the Supplements thereto, are similarly terminated as they
relate to all other outstanding series of bonds and all other
indebtedness of the Company or no longer apply or do not apply to any
other such series of bonds or indebtedness.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused its
corporate name to be hereunto affixed, and this instrument to be signed
and sealed by its President or one of its Vice Presidents or its
Treasurer, and its corporate seal to be attested by its Secretary,
Assistant Secretary or Assistant Treasurer for and in its behalf, and
United States Trust Company of New York, in token of its acceptance of
the trust hereby created, has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its Vice
Presidents or by one of its Assistant Vice Presidents and its corporate
seal to be attested by one of its Assistant Secretaries or one of its
Assistant Vice Presidents and Gerard F. Ganey for all like purposes has
hereunto set his hand and affixed his seal, all as of the ___ day of
___________.
SYSTEM ENERGY RESOURCES, INC.
By: _________________________
Vice President
Attest:
_________________________________
Assistant Secretary
Executed, sealed and delivered by System
Energy Resources, Inc. in the presence of:
_________________________________
_________________________________
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK
By:______________________________
Senior Vice President
Attest:
________________________
Assistant Vice President
Executed, sealed and delivered by United States
Trust Company of New York in the presence of:
________________________
________________________
_________________________________[L.S.]
Gerard F. Ganey
Executed, sealed and delivered by Gerard F. Ganey
in the presence of:
________________________
________________________
<PAGE>
STATE OF LOUISIANA )
) .ss:
PARISH OF ORLEANS )
On this ____ day of ___________, before me, ______________, a Notary
Public duly qualified and acting within and for said Parish and State,
appeared in person the within named _______________ and
__________________, to me personally well known, who stated that they
were a ______________ and an ___________________, respectively, of SYSTEM
ENERGY RESOURCES, INC., an Arkansas corporation, and were duly authorized
in their respective capacities to execute the foregoing instrument for
and in the name and behalf of said corporation, and further stated and
acknowledged that they had so signed, executed and delivered said
foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
On this ____ day of ___________, before me appeared _______________,
to me personally known, who, being by me duly sworn, did say that he is a
______________ of SYSTEM ENERGY RESOURCES, INC., and that the seal
affixed to the above instrument is the corporate seal of said corporation
and that said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said
_______________, acknowledged said instrument to be the free act and deed
of said corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid Parish and State, on this ____ day of ___________, within
my jurisdiction, the within named _______________ and ______________, who
acknowledged that they are a ______________ and an ___________________,
respectively, of SYSTEM ENERGY RESOURCES, INC., an Arkansas corporation,
and that for and on behalf of said corporation, and as its act and deed,
they executed the above and foregoing instrument, after first having been
duly authorized by said corporation so to do.
On the ____ day of ___________, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he resides at _____________________________________; that he is
a ______________ of SYSTEM ENERGY RESOURCES, INC., the corporation
described in and which executed the above 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 order of the Board of
Directors of said corporation, and that he signed his name thereto by
like order.
Given under my hand and seal this ____ day of ___________.
____________________
Notary Public,
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this ____ day of ___________, before me, ____________________, a
Notary Public duly commissioned, qualified and acting within and for said
County and State, appeared _______________ and _____________________, to
me personally well known, who stated that they were a
_____________________ and an ________________________, respectively, of
UNITED STATES TRUST COMPANY OF NEW YORK, a corporation, and were duly
authorized in their respective capacities to execute the foregoing
instrument for and in the name and behalf of said corporation; and
further stated and acknowledged that they had so signed, executed and
delivered said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On this ____ day of ___________, before me appeared _______________,
to me personally known, who, being by me duly sworn, did say that he is a
_____________________ of UNITED STATES TRUST COMPANY OF NEW YORK, and
that the seal affixed to the above instrument is the corporate seal of
said corporation and that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Trustees, and said
_______________ acknowledged said instrument to be the free act and deed
of said corporation.
Personally appeared before me, the undersigned authority in and for
the aforesaid County and State, on this ____ day of ___________ within my
jurisdiction, the within named _______________ and _____________________,
who acknowledged that they are the _____________________ and
________________________, respectively of UNITED STATES TRUST COMPANY OF
NEW YORK, a New York corporation, and that for and on behalf of the said
corporation, and as its act and deed, they executed the above and
foregoing instrument, after first having been duly authorized by the
corporation so to do.
On this ____ day of ___________, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he resides at ________________________________________; that he
is a _____________________ of UNITED STATES TRUST COMPANY OF NEW YORK,
the corporation described in and which executed the above 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 order of the
Board of Trustees of said corporation, and that he signed his name
thereto by like order.
Given under my hand and seal this ____ day of ___________.
_________________________
Notary Public, State of New York
No.
Qualified in
Commission Expires
<PAGE>
STATE OF NEW YORK )
) .ss:
COUNTY OF NEW YORK )
On this ____ day of ___________, before me, ____________________,
the undersigned officer, personally appeared GERARD F. GANEY, known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained.
On this ____ day of ___________, before me personally appeared
GERARD F. GANEY, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he executed the
same as his free act and deed.
Personally appeared before me, the undersigned authority in and for
the said County and State, on this ____ day of ___________ within my
jurisdiction, the within named GERARD F. GANEY, who acknowledged that he
executed the above and foregoing instrument.
On this ____ day of ___________, before me personally came GERARD F.
GANEY, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
Given under my hand and seal this ____ day of ___________.
_________________________
Notary Public, State of New York
No.
Qualified in
My Commission Expires
<PAGE>
ANNEX A
[FORM OF REGISTERED BOND]
(This bond is not transferable except as required to
effect transfer to any successor trustee under
the __________ Indenture referred to herein)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ____
Due _____________
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received, hereby
promises to pay to ______________ as trustee under the Indenture of
Trust, dated as of _______________ (hereinafter called the _____________
Indenture), of __________ County, Mississippi (hereinafter called the
County), or registered assigns, on _____________, at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
___________ Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and private
debts, without interest until the principal of this bond shall have
become due and payable.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this
bond to be signed in its corporate name by its President or one of its
Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries by his signature or a
facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By..................................
[Vice] President
Attest:
...............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..........................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ____
Due _____________
This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage Bonds,
Pollution Control Series ____, all bonds of all series issued and to be
issued under and equally secured (except insofar as any sinking or other
fund, established in accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for the bonds of
any particular series and as further specified therein) by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental thereto
including the ____________ Supplemental Indenture, called the Mortgage),
dated as of June 15, 1977, executed by the Company to United States Trust
Company of New York, as Corporate Trustee, and Gerard F. Ganey (successor
to Malcolm J. Hood), as Co-Trustee. Reference is made to the Mortgage and
particularly to the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth and ____________ Supplemental
Indentures to the Mortgage for a description of the property mortgaged
and pledged, the nature and extent of the security (including certain
additional security not given to all bonds), the rights of the holders of
the bonds and of the Trustees in respect thereof, the duties and
immunities of the Trustees and the terms and conditions upon which the
bonds are and are to be secured and the circumstances under which
additional bonds may be issued. With the consent of the Company and to
the extent permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or the rights of the holders of the bonds
and/or coupons and/or the terms and provisions of the Mortgage may be
modified or altered by such affirmative vote or votes of the holders of
bonds then outstanding as are specified in the Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
The bonds of this series have been issued and delivered as evidence
of and security for the Company's obligation to make certain payments
under the __________ Agreement dated as of _______________, between the
County and the Company. The obligation of the Company to make any payment
of the principal of the bonds of this series, whether at maturity, upon
redemption or otherwise, shall be reduced by the amount of any reduction
under the __________ Indenture of the amount of the corresponding payment
required to be made by the County thereunder in respect of the principal
of the __________ County Pollution Control Revenue Bonds (System Energy
Resources, Inc. Project) Series ___ (hereinafter called the Series __
Revenue Bonds) plus ____-twelfths (__/12) of the annual interest which
was due on the principal amount of the Series ___ Revenue Bonds so
reduced.
The bonds of this series are subject to redemption as provided in
the ______ Supplemental Indenture.
This bond is not transferable except to any successor trustee under
the ___________ Indenture, any such transfer to be made as prescribed in
the Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and, thereupon, a new fully
registered bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the Mortgage.
The Company and the Trustees may deem and treat the person in whose name
this bond is registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the Company nor
the Trustees shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
As provided in the Mortgage, the Company shall not be required to
make transfers or exchanges of bonds of any series for a period of ten
(10) days next preceding any interest payment date for bonds of said
series, or next preceding any designation of bonds of said series to be
redeemed, and the Company shall not be required to make transfers or
exchanges of any bonds designated in whole or in part for redemption.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director
of the Company or of any predecessor or successor corporation, as such,
either directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being
released by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(This bond is not transferable except as required to
effect transfer to any successor trustee under
the __________ Indenture referred to herein)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series _____
Due _____________
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received, hereby
promises to pay to _______________ as trustee under the Indenture of
Trust, dated as of ______________ (hereinafter called the ______________
Indenture), of ____________ County, Mississippi (hereinafter called the
County), or registered assigns, on _____________, at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
__________ Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and private
debts, without interest until the principal of this bond shall have
become due and payable.
This bond shall not become obligatory until United States Trust
Company of New York, the Corporate Trustee under the Mortgage, or its
successor thereunder, shall have signed the form of authentication
certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE HEREOF AND
SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused this
bond to be signed in its corporate name by its President or one of its
Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries by his signature or a
facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By ............................
[Vice] President
Attest:
...........................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein designated,
described or provided for in the within-mentioned Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..................................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ______
Due _____________
This bond is a temporary bond and is one of an issue of bonds of the
Company issuable in series and is one of a series known as its First
Mortgage Bonds, Pollution Control Series _____, all bonds of all series
issued and to be issued under and equally secured (except insofar as any
sinking or other fund, established in accordance with the provisions of
the Mortgage hereinafter mentioned, may afford additional security for
the bonds of any particular series and as further specified therein) by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto including the ____________ Supplemental Indenture,
called the Mortgage), dated as of June 15, 1977, executed by the Company
to United States Trust Company of New York, as Corporate Trustee, and
Gerard F. Ganey (successor to Malcolm J. Hood), as Co-Trustee. Reference
is made to the Mortgage and particularly to the First, Second, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and
_____________ Supplemental Indentures to the Mortgage for a description
of the property mortgaged and pledged, the nature and extent of the
security (including certain additional security not given to all bonds),
the rights of the holders of the bonds and of the Trustees in respect
thereof, the duties and immunities of the Trustees and the terms and
conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. With the
consent of the Company and to the extent permitted by and as provided in
the Mortgage, the rights and obligations of the Company and/or the rights
of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage may be modified or altered by such affirmative
vote or votes of the holders of bonds then outstanding as are specified
in the Mortgage.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at
the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
The bonds of this series have been issued and delivered as evidence
of and security for the Company's obligation to make certain payments
under the __________ Agreement dated as of _______________, between the
County and the Company. The obligation of the Company to make any payment
of the principal of the bonds of this series, whether at maturity, upon
redemption or otherwise, shall be reduced by the amount of any reduction
under the __________ Indenture of the amount of the corresponding payment
required to be made by the County thereunder in respect of the principal
of the __________ County Pollution Control Revenue Bonds (System Energy
Resources, Inc. Project) Series ___ (hereinafter called the Series __
Revenue Bonds) plus ____-twelfths (__/12) of the annual interest which
was due on the principal amount of the Series ___ Revenue Bonds so
reduced.
The bonds of this series are subject to redemption as provided in
the ______ Supplemental Indenture.
This bond is not transferable except to any successor trustee under
the ___________ Indenture, any such transfer to be made as prescribed in
the Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and, thereupon, a new fully
registered bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the Mortgage.
The Company and the Trustees may deem and treat the person in whose name
this bond is registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the Company nor
the Trustees shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof, for cancellation, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
In the manner prescribed in the Mortgage, this temporary bond is
exchangeable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, for a definitive bond or bonds of the
same series of a like principal amount when such definitive bonds are
prepared and ready for delivery.
As provided in the Mortgage, the Company shall not be required to
make transfers or exchanges of bonds of any series for a period of ten
(10) days next preceding any interest payment date for bonds of said
series, or next preceding any designation of bonds of said series to be
redeemed, and the Company shall not be required to make transfers or
exchanges of any bonds designated in whole or in part for redemption.
No recourse shall be had for the payment of the principal of this
bond against any incorporator or any past, present or future subscriber
to the capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either directly or
through the Company or any predecessor or successor corporation, under
any rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released by the
holder or owner hereof by the acceptance of this bond and being likewise
waived and released by the terms of the Mortgage.
EXHIBIT A-4
[FORM OF REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to ______________ or registered assigns,
on _____________, at the office or agency of the Company in the
Borough of Manhattan, The City of New York,
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of _____% per annum in
like coin or currency at said office or agency on _______________
for the period from _____________ to _______________ and
thereafter on _________ and ___________ in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of _____% per annum, provided, that the interest so
payable on any _________ or ___________ will, subject to certain
exceptions set out in the ____________ Supplemental Indenture
mentioned on the reverse hereof, be paid to the person in whose
name this bond (or any bond or bonds previously outstanding in
transfer or exchange for which this bond was issued) is
registered at the close of business on the ____________ or
____________, as the case may be, next preceding such interest
payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By ..........................
[Vice] President
Attest:
.............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By...............................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First
Mortgage Bonds, _____% Series due ____, all bonds of all series
issued and to be issued under and equally secured (except insofar
as any sinking or other fund, established in accordance with the
provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series and as
further specified therein) by a Mortgage and Deed of Trust
(herein, together with any indenture supplemental thereto
including the ____________ Supplemental Indenture, called the
Mortgage), dated as of June 15, 1977, executed by the Company to
United States Trust Company of New York, as Corporate Trustee,
and Gerard F. Ganey (successor to Malcolm J. Hood), as
Co-Trustee. Reference is made to the Mortgage and particularly to
the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth and ____________ Supplemental
Indentures to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security
(including certain additional security not given to all bonds),
the rights of the holders of the bonds and of the Trustees in
respect thereof, the duties and immunities of the Trustees and
the terms and conditions upon which the bonds are and are to be
secured and the circumstances under which additional bonds may be
issued. With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or the rights of the holders of
the bonds and/or coupons and/or the terms and provisions of the
Mortgage may be modified or altered by such affirmative vote or
votes of the holders of bonds then outstanding as are specified
in the Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, upon surrender and
cancellation of this bond, and, thereupon, a new fully registered
bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person
entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
[The bonds of this series shall not be redeemable at the
option of the Company.]
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal
amount of the bonds to be redeemed, together with accrued
interest to the date fixed for redemption, all as more fully
provided in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Corporate
Trustee by The Depository Trust Company (55 Water Street, New
York, New York) or its successor (the "Depositary"), this bond
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
[(See legend at the end of this Bond for
restrictions on transferability and change of form)]
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to _______________ or registered assigns,
on _____________, at the office or agency of the Company in the
Borough of Manhattan, The City of New York,
Million Dollars in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay to the registered owner hereof interest
thereon from the date hereof, at the rate of _____% per annum in
like coin or currency at said office or agency on _______________
for the period from _____________ to _______________ and
thereafter on _________ and ___________ in each year, until the
principal of this bond shall have become due and payable, and to
pay interest on any overdue principal and on any overdue premium
and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at
the rate of _____% per annum, provided, that the interest so
payable on any _________ or ___________ will, subject to certain
exceptions set out in the ____________ Supplemental Indenture
mentioned on the reverse hereof, be paid to the person in whose
name this bond (or any bond or bonds previously outstanding in
transfer or exchange for which this bond was issued) is
registered at the close of business on the ___________ or
____________, as the case may be, next preceding such interest
payment date.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By............................
[Vice] President
Attest:
............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By...........................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond, _____% Series due ____
Due _____________
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, _____% Series due ____, all
bonds of all series issued and to be issued under and equally
secured (except insofar as any sinking or other fund, established
in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any
particular series and as further specified therein) by a Mortgage
and Deed of Trust (herein, together with any indenture
supplemental thereto including the ____________ Supplemental
Indenture, called the Mortgage), dated as of June 15, 1977,
executed by the Company to United States Trust Company of New
York, as Corporate Trustee, and Gerard F. Ganey (successor to
Malcolm J. Hood), as Co-Trustee. Reference is made to the
Mortgage and particularly to the First, Second, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth and _____________ Supplemental Indentures to the
Mortgage for a description of the property mortgaged and pledged,
the nature and extent of the security (including certain
additional security not given to all bonds), the rights of the
holders of the bonds and of the Trustees in respect thereof, the
duties and immunities of the Trustees and the terms and
conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. With
the consent of the Company and to the extent permitted by and as
provided in the Mortgage, the rights and obligations of the
Company and/or the rights of the holders of the bonds and/or
coupons and/or the terms and provisions of the Mortgage may be
modified or altered by such affirmative vote or votes of the
holders of bonds then outstanding as are specified in the
Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
This bond is transferable as prescribed in the Mortgage by
the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, upon surrender and
cancellation of this bond, and, thereupon, a new fully registered
bond of the same series for a like principal amount will be
issued to the transferee in exchange herefor as provided in the
Mortgage. Subject to the foregoing provisions as to the person
entitled to receive payment of interest hereon, the Company and
the Trustees may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
In the manner prescribed in the Mortgage, this temporary
bond is exchangeable at the office or agency of the Company in
the Borough of Manhattan, The City of New York, for a definitive
bond or bonds of the same series of a like principal amount when
such definitive bonds are prepared and ready for delivery.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
[The bonds of this series shall not be redeemable at the
option of the Company.]
The bonds of this series are redeemable at any time prior to
maturity at a Special Redemption Price equal to the principal
amount of the bonds to be redeemed, together with accrued
interest to the date fixed for redemption, all as more fully
provided in the Mortgage.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Corporate
Trustee by The Depository Trust Company (55 Water Street, New
York, New York) or its successor (the "Depositary"), this bond
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
EXHIBIT A-5
[FORM OF REGISTERED BOND]
(This bond is not transferable except as required to
effect transfer to any successor trustee under
the __________ Indenture referred to herein)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ____
Due _____________
No. R $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to ______________ as trustee under the
Indenture of Trust, dated as of _______________ (hereinafter
called the _____________ Indenture), of __________ County,
Mississippi (hereinafter called the County), or registered
assigns, on _____________, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, ___________
Dollars in such coin or currency of the United States of America
as at the time of payment is legal tender for public and private
debts, without interest until the principal of this bond shall
have become due and payable.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By.............................
[Vice] President
Attest:
...............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..................................
Authorized Officer
<PAGE>
[FORM OF REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ____
Due _____________
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First
Mortgage Bonds, Pollution Control Series ____, all bonds of all
series issued and to be issued under and equally secured (except
insofar as any sinking or other fund, established in accordance
with the provisions of the Mortgage hereinafter mentioned, may
afford additional security for the bonds of any particular series
and as further specified therein) by a Mortgage and Deed of Trust
(herein, together with any indenture supplemental thereto
including the ____________ Supplemental Indenture, called the
Mortgage), dated as of June 15, 1977, executed by the Company to
United States Trust Company of New York, as Corporate Trustee,
and Gerard F. Ganey (successor to Malcolm J. Hood), as
Co-Trustee. Reference is made to the Mortgage and particularly to
the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth and ____________ Supplemental
Indentures to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security
(including certain additional security not given to all bonds),
the rights of the holders of the bonds and of the Trustees in
respect thereof, the duties and immunities of the Trustees and
the terms and conditions upon which the bonds are and are to be
secured and the circumstances under which additional bonds may be
issued. With the consent of the Company and to the extent
permitted by and as provided in the Mortgage, the rights and
obligations of the Company and/or the rights of the holders of
the bonds and/or coupons and/or the terms and provisions of the
Mortgage may be modified or altered by such affirmative vote or
votes of the holders of bonds then outstanding as are specified
in the Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
The bonds of this series have been issued and delivered as
evidence of and security for the Company's obligation to make
certain payments under the __________ Agreement dated as of
_______________, between the County and the Company. The
obligation of the Company to make any payment of the principal of
the bonds of this series, whether at maturity, upon redemption or
otherwise, shall be reduced by the amount of any reduction under
the __________ Indenture of the amount of the corresponding
payment required to be made by the County thereunder in respect
of the principal of the __________ County Pollution Control
Revenue Bonds (System Energy Resources, Inc. Project) Series ___
(hereinafter called the Series __ Revenue Bonds) plus ____-
twelfths (__/12) of the annual interest which was due on the
principal amount of the Series ___ Revenue Bonds so reduced.
The bonds of this series are subject to redemption as
provided in the ______ Supplemental Indenture.
This bond is not transferable except to any successor
trustee under the ___________ Indenture, any such transfer to be
made as prescribed in the Mortgage by the registered owner hereof
in person, or by his duly authorized attorney, at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, and, thereupon, a new fully registered bond of the same
series for a like principal amount will be issued to the
transferee in exchange herefor as provided in the Mortgage. The
Company and the Trustees may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the
purpose of receiving payment and for all other purposes and
neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder,
officer or director of the Company or of any predecessor or
successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any
rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors being released
by the holder or owner hereof by the acceptance of this bond and
being likewise waived and released by the terms of the Mortgage.
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(This bond is not transferable except as required to
effect transfer to any successor trustee under
the __________ Indenture referred to herein)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series _____
Due _____________
No. TR $
SYSTEM ENERGY RESOURCES, INC., a corporation of the State of
Arkansas (hereinafter called the Company), for value received,
hereby promises to pay to _______________ as trustee under the
Indenture of Trust, dated as of ______________ (hereinafter
called the ______________ Indenture), of ____________ County,
Mississippi (hereinafter called the County), or registered
assigns, on _____________, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, __________
Dollars in such coin or currency of the United States of America
as at the time of payment is legal tender for public and private
debts, without interest until the principal of this bond shall
have become due and payable.
This bond shall not become obligatory until United States
Trust Company of New York, the Corporate Trustee under the
Mortgage, or its successor thereunder, shall have signed the form
of authentication certificate endorsed hereon.
THE PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE
HEREOF AND SUCH CONTINUED PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, SYSTEM ENERGY RESOURCES, INC. has caused
this bond to be signed in its corporate name by its President or
one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof, on
SYSTEM ENERGY RESOURCES, INC.
By .........................
[Vice] President
Attest:
.............................
[Assistant] Secretary
<PAGE>
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds of the series herein
designated, described or provided for in the within-mentioned
Mortgage.
UNITED STATES TRUST
COMPANY OF NEW YORK,
As Corporate Trustee
By..................................
Authorized Officer
<PAGE>
[FORM OF TEMPORARY REGISTERED BOND]
(Reverse)
SYSTEM ENERGY RESOURCES, INC.
First Mortgage Bond
Pollution Control Series ______
Due _____________
This bond is a temporary bond and is one of an issue of
bonds of the Company issuable in series and is one of a series
known as its First Mortgage Bonds, Pollution Control Series
_____, all bonds of all series issued and to be issued under and
equally secured (except insofar as any sinking or other fund,
established in accordance with the provisions of the Mortgage
hereinafter mentioned, may afford additional security for the
bonds of any particular series and as further specified therein)
by a Mortgage and Deed of Trust (herein, together with any
indenture supplemental thereto including the ____________
Supplemental Indenture, called the Mortgage), dated as of June
15, 1977, executed by the Company to United States Trust Company
of New York, as Corporate Trustee, and Gerard F. Ganey (successor
to Malcolm J. Hood), as Co-Trustee. Reference is made to the
Mortgage and particularly to the First, Second, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth and _____________ Supplemental Indentures to the
Mortgage for a description of the property mortgaged and pledged,
the nature and extent of the security (including certain
additional security not given to all bonds), the rights of the
holders of the bonds and of the Trustees in respect thereof, the
duties and immunities of the Trustees and the terms and
conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. With
the consent of the Company and to the extent permitted by and as
provided in the Mortgage, the rights and obligations of the
Company and/or the rights of the holders of the bonds and/or
coupons and/or the terms and provisions of the Mortgage may be
modified or altered by such affirmative vote or votes of the
holders of bonds then outstanding as are specified in the
Mortgage.
The principal hereof may be declared or may become due prior
to the maturity date hereinbefore named on the conditions, in the
manner and at the time set forth in the Mortgage, upon the
occurrence of a default as in the Mortgage provided.
The bonds of this series have been issued and delivered as
evidence of and security for the Company's obligation to make
certain payments under the __________ Agreement dated as of
_______________, between the County and the Company. The
obligation of the Company to make any payment of the principal of
the bonds of this series, whether at maturity, upon redemption or
otherwise, shall be reduced by the amount of any reduction under
the __________ Indenture of the amount of the corresponding
payment required to be made by the County thereunder in respect
of the principal of the __________ County Pollution Control
Revenue Bonds (System Energy Resources, Inc. Project) Series ___
(hereinafter called the Series __ Revenue Bonds) plus ____-
twelfths (__/12) of the annual interest which was due on the
principal amount of the Series ___ Revenue Bonds so reduced.
The bonds of this series are subject to redemption as
provided in the ______ Supplemental Indenture.
This bond is not transferable except to any successor
trustee under the ___________ Indenture, any such transfer to be
made as prescribed in the Mortgage by the registered owner hereof
in person, or by his duly authorized attorney, at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, and, thereupon, a new fully registered bond of the same
series for a like principal amount will be issued to the
transferee in exchange herefor as provided in the Mortgage. The
Company and the Trustees may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the
purpose of receiving payment and for all other purposes and
neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof, for cancellation, at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
In the manner prescribed in the Mortgage, this temporary
bond is exchangeable at the office or agency of the Company in
the Borough of Manhattan, The City of New York, for a definitive
bond or bonds of the same series of a like principal amount when
such definitive bonds are prepared and ready for delivery.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series
for a period of ten (10) days next preceding any interest payment
date for bonds of said series, or next preceding any designation
of bonds of said series to be redeemed, and the Company shall not
be required to make transfers or exchanges of any bonds
designated in whole or in part for redemption.
No recourse shall be had for the payment of the principal of
this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer or director
of the Company or of any predecessor or successor corporation, as
such, either directly or through the Company or any predecessor
or successor corporation, under any rule of law, statute or
constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers,
stockholders, officers and directors being released by the holder
or owner hereof by the acceptance of this bond and being likewise
waived and released by the terms of the Mortgage.
No._______________ EXHIBIT A-6
Cusip No.__________
[FORM OF FACE OF DEBENTURE]
SYSTEM ENERGY RESOURCES, INC.
[Designation of the Security will be inserted here]
SYSTEM ENERGY RESOURCES, INC., a corporation duly organized
and existing under the laws of the State of Arkansas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ____________________________________, or registered
assigns, the principal sum of ____________________ Dollars on
__________,____, and to pay interest on said principal sum from
_________,____ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for,
________________________________________, commencing __________,
1995 at the rate of __% per annum until the principal hereof is
paid or made available for payment. The amount of interest
payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________________ Business Day next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
SYSTEM ENERGY RESOURCES. INC.
By:_______________________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_____________________, as Trustee
By:____________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of _______, 1995, as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _____________________,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 1995 creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
No._______________ EXHIBIT A-7
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE]
SYSTEM ENERGY RESOURCES, INC.
[Designation of the Security will be inserted here]
SYSTEM ENERGY RESOURCES, INC., a corporation duly organized
and existing under the laws of the State of Arkansas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ____________________________________, or registered
assigns, the principal sum of ____________________ Dollars on
__________,____, and to pay interest on said principal sum from
_________,____ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for,
________________________________________, commencing __________,
1995 at the rate of __% per annum until the principal hereof is
paid or made available for payment. The amount of interest
payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________________ Business Day next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City and State of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
SYSTEM ENERGY RESOURCES. INC.
By:_______________________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_____________________, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of _______, 1995, as amended (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _____________________,
as Trustee (herein called the Trustee, which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ___________, 1995 creating
the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[The Company shall have the right at any time during
the term of the Securities of this series, from time to time to
extend the interest payment period of such Securities to up to __
consecutive _______ (the "Extended Interest Payment Period"), and
at the end of such Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Securities of this
series to the extent that payment of such interest is enforceable
under applicable law); provided, however, that during such
Extended Interest Payment Period the Company shall not declare or
pay any divided on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing. Prior
to the termination of any such Extended Interest Payment Period,
the Company may further extend the interest payment period,
provided that such Extended Interest Payment Period, together
with all such previous and further extensions thereof, may not
exceed __ consecutive _________ or extend beyond the Stated
Maturity of the Securities of this series. Upon the termination
of any such Extended Interest Payment Period and the payment of
all accrued and unpaid interest then due, the Company may select
a new Extended Interest Payment Period, subject to the above
requirements. No interest during the Extended Interest Payment
Period, except at the end thereof, shall be due and payable. The
Company shall give the Holder of this Security notice of its
selection of such Extended Interest Payment Period as provided in
the Indenture.]*
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
_______________________________
* These provisions may change.
Exhibit B-1
[FORM OF FIRST MORTGAGE BOND UNDERWRITING AGREEMENT]
SYSTEM ENERGY RESOURCES, INC.
$______________
First Mortgage Bonds
____% Series due _______ __, ____
UNDERWRITING AGREEMENT
_____ __, ____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an
Arkansas corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $__________ principal amount of the Company's
First Mortgage Bonds, __% Series due _______ __, ____ (the
"Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth the Company shall issue
and sell to each of the Underwriters and each Underwriter shall
purchase from the Company at the time and place herein specified,
severally and not jointly, the respective principal amounts of
the Bonds set forth opposite the name of such Underwriter in
Schedule I attached hereto at ______% of the principal amount of
the Bonds [plus accrued interest thereon from _____ __, ____ to
the Closing Date (as defined herein).]
SECTION 2. Description of Bonds. The Bonds shall be
issued under and pursuant to the Company's Mortgage and Deed of
Trust, dated as of June 15, 1977, with United States Trust
Company of New York and Gerard F. Ganey (successor to Malcolm J.
Hood), as trustees (the "Trustees"), as supplemented by the
__________ Supplemental Indenture, dated as of _____ __, ____
(the "Supplemental Indenture"), to said Mortgage and Deed of
Trust. Said Mortgage and Deed of Trust, as supplemented and as
it will be further supplemented by the Supplemental Indenture is
hereinafter referred to as the "Mortgage". The Bonds and the
Supplemental Indenture shall have the terms and provisions
described in the Prospectus (as defined herein), provided that
subsequent to the date hereof and prior to the Closing Date the
form of the Supplemental Indenture may be amended by mutual
agreement between the Company and the Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business which it is described in the Prospectus (as
defined herein) as conducting and to own and operate the
properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 33-_____) for the registration of
$___________ principal amount of the Company's First Mortgage
Bonds (the "First Mortgage Bonds") under the Securities Act of
1933, as amended (the "Securities Act") (of which an aggregate of
$___________ of such First Mortgage Bonds remain unsold), and
such registration statement has become effective. The Company
qualifies for use of Form S-3 for the registration of the Bonds.
The prospectus forming a part of the registration statement, at
the time such registration statement (or the most recent
amendment thereto filed prior to the time of effectiveness of
this Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time pursuant
to Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus". In the event that the Basic Prospectus shall have
been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to First Mortgage Bonds other than the Bonds)
prior to the time of effectiveness of the Underwriting Agreement,
and with respect to any documents filed by the Company pursuant
to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the
Registration Statement became effective and up to the time of
effectiveness of this Underwriting Agreement (but excluding
documents incorporated therein by reference relating solely to
First Mortgage Bonds other than the Bonds), which documents are
deemed to be incorporated by reference in the Basic Prospectus,
the term "Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented. The
Registration Statement in the form in which it became effective
and as it may have been amended by all amendments thereto as of
the time of effectiveness of this Underwriting Agreement
(including for these purposes as an amendment any document
incorporated by reference in the Basic Prospectus), and the Basic
Prospectus as it shall be supplemented to reflect the terms of
the offering and sale of the Bonds by a prospectus supplement (a
"Prospectus Supplement") to be filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424"), are hereinafter referred to as the
"Registration Statement" and the "Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to First Mortgage Bonds other than
the Bonds), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document which is to be incorporated by reference in, or
any supplement to the Basic Prospectus, in either case, without
prior notice to the Underwriters and to Winthrop, Stimson, Putnam
& Roberts ("Counsel for the Underwriters"), or any such amendment
or supplement to which said Counsel shall reasonably object on
legal grounds in writing. For purposes of this Underwriting
Agreement, any document which is filed with the Commission after
the time of effectiveness of this Underwriting Agreement and is
incorporated by reference in the Prospectus (except documents
incorporated by reference relating solely to First Mortgage Bonds
other than the Bonds) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Mortgage, at such time, fully
complied, and the Prospectus, when filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 and at the Closing
Date, as it may then be amended or supplemented, will fully
comply in all material respects with the applicable provisions of
the Securities Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, on the date first filed with the Commission pursuant
to the Exchange Act, fully complied or will fully comply in all
material respects with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations are or will be deemed to
comply therewith. On the later of (i) the date the Registration
Statement was declared effective by the Commission under the
Securities Act or (ii) the date that the Company's most recent
Annual Report on Form 10-K was filed with the Commission under
the Exchange Act (the date described in either clause (i) or (ii)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any post-
effective amendment to the Registration Statement became or
becomes effective (but excluding any post-effective amendment
relating solely to First Mortgage Bonds other than the Bonds),
the Registration Statement as amended by any such post-effective
amendment did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date, the Prospectus, as it may
then be amended or supplemented, will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading,
and on said dates and at such times, the documents then
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, when read together with the Prospectus, or the
Prospectus, as it may then be amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (c) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement or
the Prospectus, as they may be amended or supplemented, or to any
statements in or omissions from the statements of eligibility, as
either may be amended, under the Trust Indenture Act, of the
Trustees under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Mortgage or any indenture, other
mortgage, deed of trust or other agreement or instrument to which
the Company is now a party.
(e) Except as set forth or contemplated in the
Prospectus, the Company has obtained all material licenses,
permits, and other governmental or regulatory authorizations
currently required for the conduct of its business, and is in all
material respects complying therewith, and the Company is not
aware of any fact that would lead it to believe that any material
license, permit or other governmental or regulatory authorization
would not remain in effect or be renewed in its ordinary course
of business.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the effectiveness
of this Underwriting Agreement as in their judgment is advisable.
The Company is further advised by the Underwriters that the Bonds
will be offered to the public at the initial public offering
price specified in the Prospectus Supplement [plus accrued
interest thereon from _____ __, ____ to the Closing Date].
SECTION 5. Time and Place of Closing. Delivery of the
Bonds and payment of the purchase price therefor by wire transfer
of, or check or checks payable in, New York Clearing House Funds
or similar next day funds shall be made at the offices of Reid &
Priest LLP, 40 West 57th Street, New York, New York, at
10:00 A.M., New York time, on _____ __, ____, or at such other
time on the same or such other day as shall be agreed upon by the
Company and [Lead Underwriter], or as may be established in
accordance with Section 11 herein. The hour and date of such
delivery and payment are herein called the "Closing Date".
The Bonds shall be delivered to the Underwriters in
book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the Bonds
shall be in the form of one or more typewritten bonds in fully
registered form, in the aggregate principal amount of the Bonds,
and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York Time, on the last business day preceding the
Closing Date at such place as may be agreed upon among the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration Statement
relating to the Bonds as originally filed with the Commission,
and of all amendments or supplements thereto relating to the
Bonds, certified by an officer of the Company to be in the form
filed.
(b) The Company will deliver to the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are required
by law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Bonds, the Company will amend or supplement
the Prospectus by either (i) preparing and filing with the
Commission and furnishing to the Underwriters a reasonable number
of copies of a supplement or supplements or an amendment or
amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in which
case the Underwriters shall assume the expense of preparing any
such amendment or supplement), the expenses of complying with
this Section 6(d) shall be borne by the Company until the
expiration of nine months from the initial effective date of the
Registration Statement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the Registration
Statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner so as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 promulgated under the Securities
Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Bonds
for offer and sale under the "blue sky" laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all expenses and taxes (except transfer taxes) in connection with
(i) the preparation and filing of the Registration Statement,
(ii) the printing, issuance and delivery of the Bonds and the
preparation, execution, printing and recordation of the
Supplemental Indenture, (iii) legal fees and expenses relating to
the qualification of the Bonds under the "blue sky" laws of
various jurisdictions and the determination of the eligibility of
the Bonds for investment under the laws of various jurisdictions,
in an amount not to exceed $_____, (iv) the printing and delivery
to you of reasonable quantities of copies of the Registration
Statement, the Preliminary (and any Supplemental) Blue Sky Survey
and the Prospectus and any amendment or supplement thereto,
except as otherwise provided in paragraph (d) of this Section 6,
(v) fees of the rating agencies in connection with the rating of
the Bonds, and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided above,
the Company shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement shall
be terminated in accordance with the provisions of Section 7, 8
or 12 hereof, the Company will reimburse the Underwriters for
(i) the reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree to
pay in any other event, and (ii) reasonable out-of-pocket
expenses, in an amount not exceeding in the aggregate $15,000,
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
(h) The Company will not sell any additional First
Mortgage Bonds without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date or (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Bonds shall be subject to the accuracy on the date hereof and on
the Closing Date of the representations and warranties made herein
on the part of the Company and of any certificates furnished by
the Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President or the
Treasurer of the Company, to the effect that no such stop order
has been or is in effect and that no proceedings for such purpose
are pending before, or to the knowledge of the Company threatened
by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an order
of the Commission under the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"), authorizing the issuance and
sale of the Bonds and the execution of the Supplemental Indenture
on the terms set forth in, or contemplated by, this Underwriting
Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Wise Carter Child & Caraway, Professional
Association; Reid & Priest LLP; Friday, Eldredge & Clark; and
counsel for the system operating companies opinions, dated the
Closing Date, substantially in the forms set forth in Exhibits A,
B, C and D hereto, respectively, (i) with such changes therein as
may be agreed upon by the Company and the Underwriters with the
approval of Counsel for the Underwriters, and (ii) if the
Prospectus shall be supplemented after being furnished to the
Underwriters for use in offering the Bonds, with changes therein
to reflect such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriters, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit E hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P (the "Accountants"), a letter dated the
date hereof and addressed to you to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199__ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter, and accordingly that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, or for
changes or decreases as set forth in such letter, identifying the
same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company set forth in the Prospectus and specified in
Exhibit F hereto to the extent that such amounts, numbers,
percentages and information may be derived from the general
accounting records of the Company, and excluding any questions
requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries
and other appropriate procedures (which procedures do not
constitute an examination in accordance with generally accepted
auditing standards) set forth in the letter, and found them to be
in agreement.
(g) At the Closing Date, the Underwriters shall have
received (i) a certificate, dated the Closing Date and signed by
the President, a Vice President or the Treasurer of the Company
to the effect that (A) the representations and warranties of the
Company contained herein are true and correct, (B) the Company
has performed and complied with all agreements and conditions in
this Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date, and (C) since the
most recent date as of which information is given in the
Prospectus, as it may be amended or supplemented, there has not
been any material adverse change in the business, property or
financial condition of the Company and there has not been any
material transaction entered into by the Company, other than
transactions in the ordinary course of business, in each case
other than as referred to in, or contemplated by, the Prospectus,
as it may be amended or supplemented ; and (ii) certificates,
dated the Closing Date and signed by the President, a Vice
President or the Treasurer of Entergy Corporation ("Entergy") to
the effect that (A) except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, Entergy, AP&L,
LP&L, MP&L and NOPSI have obtained all material licenses,
permits, approvals and other governmental or regulatory
authorizations required to enable them to fulfill their
obligations to the Company under the terms of, with respect to
Entergy, the Capital Funds Agreement and the ____________
Supplementary Capital Funds Agreement and Assignment, dated as of
_____ __, ____ (hereinafter referred to as the "Supplementary
Capital Funds Agreement") among the Company, the Trustees and
Entergy, and, with respect to AP&L, LP&L, MP&L and NOPSI, the
Availability Agreement and the ____________ Assignment of
Availability Agreement, Consent and Agreement, dated as of _____
__, ____ (hereinafter referred to as the "Assignment of
Availability Agreement") among the Company, the Trustees, AP&L,
LP&L, MP&L and NOPSI, each as described in the Prospectus and (B)
since the most recent date as of which information is given in
the prospectus included in the Registration Statement, there has
not been any material adverse change in the business, property or
financial condition of Entergy and its subsidiaries considered as
a whole.
(h) The Underwriters shall have received duly executed
counterparts of (i) the Assignment of Availability Agreement,
(ii) the Supplementary Capital Funds Agreement and (iii) the
Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under the
Mortgage shall have occurred.
(k) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, or Entergy and its various direct and
indirect subsidiaries taken as a whole as it affects the Company,
which in the reasonable opinion of the Underwriters materially
impairs the investment quality of the Bonds.
(l) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of the Company's
outstanding First Mortgage Bonds in any respect.
(m) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and substance
to Counsel for the Underwriters.
(n) The Company will furnish the Underwriters with
such additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
[(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date determined by the Company and approved by the
Underwriters.]
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(c) At the Closing Date there shall be in full force
and effect an order of the Commission under the 1935 Act
authorizing the issuance and sale of the Bonds on the terms set
forth in or contemplated by this Underwriting Agreement, the
Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to [Lead
Underwriter] [, provided that, in the case of paragraph (a)
above, the Company shall have used its best efforts to comply
with the requirements of Rule 424(b)]. Any such termination
shall be without liability of any party to the other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 9.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b)), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which constitutes the statements of
eligibility under the Trust Indenture Act of the Trustees; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
to the benefit of any person controlling any Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds to any
person in respect of any Basic Prospectus or the Prospectus, as
supplemented or amended furnished by any Underwriter to a person
to whom any of the Bonds were sold (excluding in both cases,
however, any document then incorporated or deemed incorporated by
reference therein), insofar as such indemnity relates to any
untrue or misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied prior to
the consummation of such sale in the Prospectus, or any amendment
or supplement thereto furnished pursuant to Section 6(d) hereof,
respectively, unless a copy of the Prospectus (in the case of
such a statement or omission made in the Basic Prospectus) or
such amendment or supplement (in the case of such a statement or
omission made in the Prospectus) (excluding, however, any
amendment or supplement to the Basic Prospectus relating to any
First Mortgage Bonds other than the Bonds and any document then
incorporated or deemed incorporated by reference in the
Prospectus or such amendment or supplement) is furnished by such
Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b)) or in the Prospectus, as amended or supplemented,
or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424(b)) or the Prospectus,
or any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. An indemnifying party shall not, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened litigation, proceeding or claim in
respect of which indemnity has been properly sought by any
indemnified party or by any person controlling any indemnified
party hereunder, unless such settlement includes an unconditional
release of such indemnified party or such person controlling any
indemnified party from all liability with respect to claims which
are the subject matter of such litigation, proceeding or claim.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatening action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity has
or could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Bonds or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from
the offering (after deducting underwriting discounts and
commissions but before deducting expenses) to the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and such
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9, and the
representations and warranties and other agreements of the
Company, contained in this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If either
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Bonds which it has
agreed to purchase and pay for hereunder, and the aggregate
principal amount of Bonds which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Bonds, the other
Underwriter shall be obligated to purchase the Bonds which such
defaulting Underwriter agreed but failed or refused to purchase;
provided that in no event shall the principal amount of Bonds
which any Underwriter has agreed to purchase pursuant to Schedule
I hereof be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such principal amount of Bonds without
written consent of such Underwriter. If any Underwriter shall
fail or refuse to purchase Bonds and the aggregate principal
amount of Bonds with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of the Bonds,
the Company shall have the right (a) to require the non-
defaulting Underwriter to purchase and pay for the respective
principal amount of Bonds that it had severally agreed to
purchase hereunder, and, in addition, the principal amount of
Bonds that the defaulting Underwriter shall have so failed to
purchase up to a principal amount thereof equal to one-ninth of
the respective principal amount of Bonds that such non-defaulting
Underwriter had otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others, members of the NASD (or, if
not members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who agree
in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Bonds that such defaulting Underwriter had
agreed to purchase, or that portion thereof that the remaining
Underwriter shall not be obligated to purchase pursuant to the
foregoing clause (a). In the event the Company shall exercise
its rights under clause (a) and/or (b) above, the Company shall
give written notice thereof to the Underwriters within 24 hours
(excluding any Saturday, Sunday, or legal holiday) of the time
when the Company learns of the failure or refusal of any
Underwriter to purchase and pay for its respective principal
amount of Bonds, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as
the Company shall determine. In the event the Company shall be
entitled to but shall not elect (within the time period specified
above) to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this
Underwriting Agreement. In the absence of such election by the
Company, this Underwriting Agreement will, unless otherwise
agreed by the Company and the non-defaulting Underwriter,
terminate without liability on the part of any non-defaulting
party except as otherwise provided in paragraph (g) of Section 6
and in Section 10. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect
of its default under this Underwriting Agreement.
SECTION 12. Termination. This Underwriting Agreement
may be terminated at any time prior to the Closing Date by
written notice from you if, prior to that time, (i) trading in
securities on the New York Stock Exchange shall have been
generally suspended, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock
Exchange by the New York Stock Exchange, the Commission or other
governmental authority, (iii) a general banking moratorium shall
have been declared by Federal or New York State authorities, or
(iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as
to make it, in the reasonable judgment of [Lead Underwriter],
impracticable to market the Bonds. Any termination hereof,
pursuant to this Section 12, shall be without liability of either
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement may be executed in any
number of separate counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of
which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Underwriter] at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel) or, if to the Company, shall be mailed or
delivered to it at 1340 Echelon Parkway, Jackson, Mississippi
39213, Attention: Secretary.
Very truly yours,
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
Name:
Title:
<PAGE>
SCHEDULE I
System Energy Resources, Inc.
$________________
First Mortgage Bonds
___% Series due _________ __, ____
Name Amount
_____________
Total $____________
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
_______ __, ____
[UNDERWRITERS]
c/o [Lead Underwriter]
[ADDRESS]
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for System Energy Resources, Inc.
(the "Company") in connection with the issuance and sale by it
pursuant to this Underwriting Agreement, effective _____ __, ____
(the "Underwriting Agreement"), between the Company and you, of
$__________ in aggregate principal amount of its First Mortgage
Bonds, % Series due _____ __, ____ (the "Bonds"), issued
pursuant to the Company's Mortgage and Deed of Trust, dated as of
June 15, 1977, as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the __________ Supplemental Indenture, dated as of _____ __, ____
(the Mortgage and Deed of Trust as so amended and supplemented
being hereinafter referred to as the "Mortgage"). This opinion
is rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, as amended; (b) this Underwriting
Agreement; (c) the Mortgage; (d) the Registration Statement and
Prospectus; (e) the Availability Agreement dated as of June 21,
1974, as amended (the "Availability Agreement"), between the
Company, Arkansas Power & Light Company ("AP&L"), Louisiana Power
& Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI"); (f) the
____________ Assignment of Availability Agreement, Consent and
Agreement, dated as of _____ __, ____ (hereinafter referred to as
the "Assignment of Availability Agreement") among the Company,
the Trustees, AP&L, LP&L, MP&L and NOPSI; (g) the Capital Funds
Agreement dated as of June 21, 1974, as amended (the "Capital
Funds Agreement"), between the Company and Entergy Corporation
("Entergy"); (h) the ____________ Supplementary Capital Funds
Agreement and Assignment, dated as of _____ __, ____ (hereinafter
referred to as the "Supplementary Capital Funds Agreement") among
the Company, the Trustees and Entergy; (i) the records of various
corporate proceedings relating to the authorization, issuance and
sale of the Bonds by the Company and the execution and delivery
by the Company of the Mortgage, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and this
Underwriting Agreement and (j) the proceedings before the
Commission under the 1935 Act relating to the issuance and sale
of the Bonds by the Company and the execution and delivery by the
Company of the Mortgage, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and this
Underwriting Agreement. We have also examined or caused to be
examined such other documents and have satisfied ourselves as to
such other matters as we have deemed necessary in order to render
this opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the United
States Trust Company of New York as to the authentication and
delivery thereof. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
this Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(2) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
duly qualified under the Trust Indenture Act and no proceedings
to suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the New
Bonds" and "Description of the Offered Bonds," respectively,]
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(4) The Bonds have been duly and validly authorized by
all necessary corporate action, and are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting the enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security afforded by
the Mortgage.
(5) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). This Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(6) The issuance and sale by the Company of the Bonds,
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement and the consummation of the transactions contemplated
thereby (a) will not violate any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, (b) will not violate or conflict with any provision
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in (other than as contemplated by the Mortgage, the
Assignment of Availability Agreement and the Supplementary
Capital Funds Agreement) any of the assets of the Company
pursuant to the provisions of, any mortgage, indenture, contract,
agreement or other undertaking known to us (having made due
inquiry with respect thereto) to which the Company is a party or
which purports to be binding upon the Company or upon any of its
respective assets, and (c) will not violate any provision of any
law or regulation applicable to the Company or, to the best of
our knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various approvals, authorizations, orders, licenses,
permits, franchises and consents of, and registrations,
declarations and filings with, governmental authorities may be
required to be obtained or made, as the case may be (1) in
connection or compliance with the provisions of the securities or
blue-sky laws of any jurisdiction, (2) in connection with the
construction, acquisition, ownership, operation and maintenance
of the Grand Gulf Nuclear Electric Generating Station and (3) as
set forth in the exceptions to the opinions set forth in
paragraph (8) below).
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) under the Securities Act
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statements of eligibility of the Trustees under the Mortgage,
upon which we do not pass) the Trust Indenture Act and the
applicable instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and on the date
hereof is effective under the Securities Act, and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds and the execution, delivery and (except to the
extent indicated below) performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement; to the best of our knowledge, said order is in full
force and effect; no further approval, authorization, consent or
other order of any governmental body (other than in connection or
compliance with the provisions of the securities or blue-sky laws
of any jurisdiction) is legally required to permit the issuance
and sale by the Company of the Bonds pursuant to this
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance (other than that relating to
the construction, acquisition, ownership, operation and
maintenance of the Grand Gulf Nuclear Electric Generating
Station) by the Company of its obligations with respect to the
Bonds or under the Mortgage, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and this
Underwriting Agreement, except (1) appropriate orders or the
taking of other action by governmental regulatory authorities
having jurisdiction pursuant to valid statutory enactments as to
the issuance by the Company, and the acquisition by Entergy, of
any securities to be issued by the Company to Entergy pursuant to
the Capital Funds Agreement and the Supplementary Capital Funds
Agreement after the date hereof, and as to the issuance by the
Company of any securities to others other than Entergy pursuant
to the Capital Funds Agreement and the Supplementary Capital
Funds Agreement after the date hereof and (2) with respect to the
Availability Agreement and the Assignment of Availability
Agreement (other than each respective Section 2.2.(b) thereof),
in the event that the Company shall determine to sell capacity
and/or energy from any generating unit pursuant to the terms of
the Availability Agreement or the Assignment of Availability
Agreement, appropriate orders, or the taking of other action, by
governmental regulatory authorities having jurisdiction pursuant
to valid statutory enactments as to the specific terms and
provisions under which such capacity and/or energy shall be made
available.
(9) The Company has good and sufficient title to the
properties described as owned by it in and as subject to the lien
of the Mortgage (except properties released under the terms of
the Mortgage), subject only to Excepted Encumbrances, as defined
in the Mortgage, and to minor defects and encumbrances
customarily found in properties of like size and character which
do not, in our opinion, materially impair the use of the property
affected thereby in the conduct of the business of the Company.
The description of such property set forth in the Mortgage is
adequate to constitute the Mortgage a lien thereon. The
recording of the Mortgage in the office of the Chancery Clerk of
Claiborne County, Mississippi, which recording has been duly
effected, and the filing of Uniform Commercial Code financing
statements covering the personal property and fixtures described
in the Mortgage as subject to the lien thereof in the offices of
the Secretary of State of the State of Mississippi and the
Chancery Clerk of Claiborne County, Mississippi, which filings
have been duly effected, and the filing of continuation
statements within six months prior to the expiration of each five
year period from the date of original filing with respect to such
financing statements, are the only recordings, filings,
rerecordings and refilings required by law in order to perfect
and maintain the lien of the Mortgage on any of the property
described therein as subject thereto; as a result of the
recording and filings referred to above, the Mortgage creates as
security for the Bonds (i) a valid, first lien on all real
property and interests in real property and the improvements
thereon specifically described in the granting clauses of the
Mortgage (and not excepted from the lien of the Mortgage by the
provisions thereof or released under the terms of the Mortgage)
and (ii) a first perfected security interest in all personal
property, interests in personal property and fixtures
specifically described in the granting clauses of the Mortgage
(and not excepted from the lien of the Mortgage by the provisions
thereof or released under the terms of the Mortgage), in each
case subject to no liens, charges or encumbrances, other than
minor defects of the character aforesaid and Excepted
Encumbrances, subject, however, to liens, defects and
encumbrances, if any, existing or placed thereon at the time of
acquisition thereof by the Company; and the provisions of the
Mortgage are effective to extend the lien thereof to all
properties and interests in properties which the Company may
acquire after the date of the Mortgage, which are of the type
referred to in the Mortgage as intended to be mortgaged thereby
when acquired, and the lien of the Mortgage will extend to all
such properties and interests in properties and will constitute a
valid first lien on all such real property and interests therein
and a first perfected security interest in all such personal
property and interests therein (subject, however, to Excepted
Encumbrances, and to liens, defects and encumbrances, if any,
existing or placed thereon at the time of acquisition thereof by
the Company and except as limited by bankruptcy law) without the
execution and delivery of any supplemental indenture or other
instrument specifically extending the lien to such real property
or interests therein or the taking of any other action
specifically extending the lien of the Mortgage to such personal
property or interests therein, other than the filing of the
continuation statements within six months prior to the expiration
of each five year period from the date of original filing with
respect to the financing statements as described above.
(10) The filing of Uniform Commercial Code financing
statements in the offices of the Secretary of State of the State
of Mississippi and the Chancery Clerk of the First Judicial
District of Hinds County, Mississippi, which has been duly
effected, and the filing of continuation statements within six
months prior to the expiration of each five year period from the
date of original filing with respect to such financing
statements, are the only recordings, filings, rerecordings or
refilings in the State of Mississippi required by law in order to
perfect and maintain in favor of the Trustees (a) the security
interest created by the Supplementary Capital Funds Agreement in
the Company's right, title and interest in and to the Company's
rights to receive moneys described in clause (x) of Section 5.1
thereof and the Collateral described in Section 5.1 thereof or
(b) the security interest created by the Assignment of
Availability Agreement in the Company's right, title and interest
in and to the Collateral described in Section 1.1 thereof.
(11) (a) The Supplementary Capital Funds Agreement
creates in favor of the Trustees a perfected security interest in
the Company's right, title and interest in and to the Company's
rights to receive the moneys described in clause (x) of Section
5.1 thereof; the Supplementary Capital Funds Agreement creates in
favor of the Trustees a perfected security interest in the
Company's right, title and interest in and to the Collateral
described in Section 5.1 thereof pari passu with the security
interest of each Additional Assignee under an Additional
Supplementary Agreement (as such terms are defined in the
Supplementary Capital Funds Agreement) in such Collateral; and
(b) the Assignment of Availability Agreement creates in favor of
the Trustees a perfected security interest in the Company's
right, title and interest in and to the Collateral described in
Section 1.1 thereof pari passu with the security interest of each
Additional Assignee under an Additional Assignment (as such terms
are defined in the Assignment of Availability Agreement) in such
Collateral.
(12) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement and the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement which are not so
filed, or any contracts or other documents of the Company of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as
required; the descriptions in the Registration Statement and
Prospectus of statutes, legal and government proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or investigation
pending against or affecting the Company or any of its assets the
result of which would, in our opinion, have a materially adverse
effect on the issuance and sale of the Bonds in accordance with
this Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 3 above. In connection with
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus or as to the statements contained in
the Form T-1 and Form T-2 filed as exhibits to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption ["Description of the Offered Bonds -
Book-Entry Offered Bonds".]
With respect to the opinions set forth in paragraphs 2
and 4 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
As to matters set forth in paragraphs 9 and 10 above
and with respect to the maintaining of the security interests
created by the Supplementary Capital Funds Agreement and the
Assignment of Availability Agreement referred to in paragraph 11
above, we have assumed that there will be no change in the
identity of the Company or in the place(s) of business or the
chief executive office of the Company.
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the Mississippi Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and we concur in the conclusions expressed
therein insofar as they involve questions of Mississippi law. As
to all matters of Arkansas and New York law, we have relied, in
the case of Arkansas law, upon the opinion of even date herewith
addressed to us of Friday, Eldredge & Clark of Little Rock,
Arkansas, and, in the case of New York law, upon the opinion of
even date herewith addressed to you of Reid & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with this Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Reid
& Priest LLP and Winthrop, Stimson, Putnam & Roberts may rely on
this opinion as to all matters of Mississippi law in rendering
their opinions required to be delivered under this Underwriting
Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
__________ ___, ____
[UNDERWRITERS]
c/o [Lead Underwriter]
[ADDRESS]
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted as
counsel for System Energy Resources, Inc. (the "Company") in
connection with the issuance and sale by it pursuant to this
Underwriting Agreement, effective ___________ ___, _____ (the
"Underwriting Agreement"), between the Company and you, of
$__________ in aggregate principal amount of its First Mortgage
Bonds, % Series due ___________ ___, _____ (the "Bonds"),
issued pursuant to the Company's Mortgage and Deed of Trust,
dated as of June 15, 1977, as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto
including the __________ Supplemental Indenture, dated as of
___________ ___, _____ (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage"). We have also acted as counsel to Entergy
Corporation ("Entergy") in connection with the participation by
Entergy in certain transactions related to the issuance and sale
of the Bonds by the Company. This opinion is rendered to you at
the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, each as amended, and Entergy's
Certificate of Incorporation and By-Laws, each as amended;
(b) this Underwriting Agreement; (c) the Mortgage; (d) the
Registration Statement and Prospectus; (e) the Availability
Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), between the Company, Arkansas Power &
Light Company ("AP&L"), Louisiana Power & Light Company ("LP&L"),
Mississippi Power & Light Company ("MP&L") and New Orleans Public
Service Inc. ("NOPSI"); (f) the ____________ Assignment of
Availability Agreement, Consent and Agreement, dated as of
___________ ___, _____ (hereinafter referred to as the
"Assignment of Availability Agreement"), among the Company, the
Trustees, AP&L, LP&L, MP&L and NOPSI; (g) the Capital Funds
Agreement dated as of June 21, 1974, as amended (the "Capital
Funds Agreement"), between the Company and Entergy; (h) the
____________ Supplementary Capital Funds Agreement and
Assignment, dated as of ___________ ___, _____ (hereinafter
referred to as the "Supplementary Capital Funds Agreement") among
the Company, the Trustees and Entergy; (i) the records of various
corporate proceedings relating to the authorization, issuance and
sale of the Bonds by the Company, the execution and delivery by
the Company of the Mortgage, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and this
Underwriting Agreement the execution and delivery by Entergy of
the Capital Funds Agreement and the Supplementary Capital Funds
Agreement; and (j) the proceedings before the Commission under
the 1935 Act relating to the issuance and sale of the Bonds by
the Company, the execution and delivery by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement and the execution and delivery by Entergy of the
Capital Funds Agreement and the Supplementary Capital Funds
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the United
States Trust Company of New York as to the authentication and
delivery thereof. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
this Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights,
and has been duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the New
Bonds" and "Description of the Offered Bonds," respectively,]
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(3) The Bonds have been duly and validly authorized by
all necessary corporate action, and are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting the enforcement of mortgagees' and other creditors'
rights and general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security afforded by
the Mortgage.
(4) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). This Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(5) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(6) Entergy is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware and has the corporate power and authority to conduct its
business and to own and operate the properties owned and operated
by it in such business.
(7) The Capital Funds Agreement and the Supplementary
Capital Funds Agreement have been duly authorized, executed and
delivered by Entergy and constitute legal, valid and binding
obligations of Entergy enforceable in accordance with their
respective terms, except as limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(8) The issuance and sale by the Company of the Bonds,
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement, the execution, delivery and performance by Entergy of
the Capital Funds Agreement and the Supplementary Capital Funds
Agreement, and the consummation of the transactions contemplated
thereby (a) will not violate or conflict with any provision of
the Company's Amended and Restated Articles of Incorporation or
By-laws, each as amended, or Entergy's Certificate of
Incorporation or By-laws, as amended, and (b) will not violate
any provision of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance on or
security interest in (other than as contemplated by the Mortgage,
the Assignment of Availability Agreement and the Supplementary
Capital Funds Agreement) any of the assets of the Company or
Entergy pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company or Entergy
is a part or which purports to be binding upon the Company or
Entergy or upon any of their respective assets, and (c) will not
violate any provision of any law or regulation applicable to the
Company or Entergy or, to the best of our knowledge (having made
due inquiry with respect thereto), any provision of any order,
writ, judgment or decree of any governmental instrumentality
applicable to the Company (except that various approvals,
authorizations, orders, licenses, permits, franchises and
consents of, and registrations, declarations and filings with,
governmental authorities may be required to be obtained or made,
as the case may be (1) in connection or compliance with the
provisions of the securities or blue-sky laws of any
jurisdiction, (2) in connection with the construction,
acquisition, ownership, operation and maintenance of the Grand
Gulf Nuclear Electric Generating Station and (3) as set forth in
the exceptions to the opinions set forth in paragraph 10 below).
(9) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) under the Securities Act
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statements of eligibility of the Trustees under the Mortgage,
upon which we do not pass) the Trust Indenture Act and the
applicable instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is on the
date hereof effective under the Securities Act and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of said
Securities Act.
(10) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Bonds, the execution, delivery and (except to the extent
indicated below) performance by the Company of the Mortgage, the
Availability Agreement, the Assignment of Availability Agreement,
the Capital Funds Agreement, the Supplementary Capital Funds
Agreement and this Underwriting Agreement and the execution,
delivery and (except to the extent indicated below) performance
by Entergy of the Capital Funds Agreement and the Supplementary
Capital Funds Agreement; to the best of our knowledge, said order
is in full force and effect; no further approval, authorization,
consent or other order of any governmental body (other than in
connection or compliance with the provisions of the securities or
blue-sky laws of any jurisdiction) is legally required to permit
the issuance and sale by the Company of the Bonds pursuant to
this Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the performance (other than that
relating to the construction, acquisition, ownership, operation
and maintenance of the Grand Gulf Nuclear Electric Generating
Station) by the Company of its obligations with respect to the
Bonds or under the Mortgage, the Availability Agreement, the
Assignment of Availability Agreement, the Capital Funds
Agreement, the Supplementary Capital Funds Agreement and this
Underwriting Agreement or the performance by Entergy of its
obligations under the Capital Funds Agreement and the
Supplementary Capital Funds Agreement, except (1) appropriate
orders or the taking of other action by governmental regulatory
authorities having jurisdiction pursuant to valid statutory
enactments as to the issuance by the Company, and the acquisition
by Entergy, of any securities to be issued by the Company to
Entergy pursuant to the Capital Funds Agreement and the
Supplementary Capital Funds Agreement after the date hereof, and
as to the issuance by the Company of any securities to others
other than Entergy pursuant to the Capital Funds Agreement and
the Supplementary Capital Funds Agreement after the date hereof
and (2) with respect to the Availability Agreement and the
Assignment of Availability Agreement (other than each respective
Section 2.2(b) thereof), in the event that the Company shall
determine to sell capacity and/or energy from any generating unit
pursuant to the terms of the Availability Agreement or the
Assignment of Availability Agreement, appropriate orders, or the
taking of other action, by governmental regulatory authorities
having jurisdiction pursuant to valid statutory enactments as to
the specific terms and provisions under which such capacity
and/or energy shall be made available.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 2 above. In connection with
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424(b) under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus or as to the statements contained in
the Form T-1 and Form T-2 filed as exhibits to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption ["Description of Offered Bonds -
Book-Entry Offered Bonds".]
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. Accordingly, as to matters involving the laws of Arkansas
and Mississippi, we have relied upon the below-named opinions of
counsel to the extent that such opinions state an opinion with
regard to the matters covered by this opinion. As to matters of
Arkansas law relating to the Company, we have, with your consent,
relied upon an opinion of even date herewith addressed to us of
Messrs. Friday, Eldredge & Clark of Little Rock, Arkansas. As to
matters of Mississippi law related to the Company, we have, with
your consent, relied upon the opinion of even date herewith of
Wise Carter Child & Caraway, Professional Association, which has
been delivered to you pursuant to this Underwriting Agreement.
We have not examined and are expressing no opinion as
to the title of the Company to its properties, the lien of the
Mortgage, the priority of the security interests intended to be
created by the Supplementary Capital Funds Agreement and the
Assignment of Availability Agreement, or the filing of any
document with respect to the Supplementary Capital Funds
Agreement, the Availability Agreement and the Assignment of
Availability Agreement.
With respect to the opinions set forth in paragraphs 1
and 3 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with this Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Wise
Carter Child & Caraway, Professional Association, may rely on
this opinion as to matters of New York law in rendering their
opinion related to the Company required to be delivered under
this Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Friday, Eldredge & Clark]
___________ ___, _____
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
WISE CARTER CHILD & CARAWAY,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the issuance
and sale by it, pursuant to this Underwriting Agreement,
effective ___________ ___, _____ (the "Underwriting Agreement")
between the Company and the underwriter named therein of
$__________ in aggregate principal amount of its First Mortgage
Bonds, % Series due ___________ ___, _____ (the "Bonds"),
issued pursuant to the Company's Mortgage and Deed of Trust,
dated as of June 15, 1977, as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto
including the _______________ Supplemental Indenture, dated as of
___________ ___, _____ (the Mortgage and Deed of Trust as so
amended and supplemented being hereinafter referred to as the
"Mortgage").
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) this Underwriting
Agreement; (c) the Mortgage; (d) the Registration Statement and
Prospectus; (e) the Availability Agreement dated as of June 21,
1974, as amended (the "Availability Agreement"), between the
Company, Arkansas Power & Light Company ("AP&L"), Louisiana Power
& Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI"); (f) the
____________ Assignment of Availability Agreement, Consent and
Agreement, dated as of _______ __, 1994 (hereinafter referred to
as the "Assignment of Availability Agreement") among the Company,
the Trustees, AP&L, LP&L, MP&L and NOPSI; (g) the Capital Funds
Agreement dated as of June 21, 1974, as amended (the "Capital
Funds Agreement"), between the Company and Entergy Corporation
("Entergy"); (h) the ____________ Supplementary Capital Funds
Agreement and Assignment, dated as of ___________ ___, _____
(hereinafter referred to as the "Supplementary Capital Funds
Agreement") among the Company, the Trustees and Entergy; and
(i) the records of various corporate proceedings relating to the
authorization, issuance and sale of the Bonds and the execution
and delivery by the Company of the Mortgage, the Availability
Agreement, the Assignment of Availability Agreement, the Capital
Funds Agreement, the Supplementary Capital Funds Agreement and
this Underwriting Agreement. We have also examined or caused to
be examined such other documents and have satisfied ourselves as
to such other matters as we have deemed necessary in order to
render this opinion. We have not examined the Bonds, except a
specimen thereof, and we have relied upon a certificate of the
United States Trust Company of New York as to the authentication
and delivery thereof. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
this Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas and is duly qualified to conduct its business in such
State.
(2) The Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered and is a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(3) The Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement and the
Supplementary Capital Funds Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting the
enforcement of mortgagees' and other creditors' rights and
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). This Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(4) The Bonds have been duly and validly authorized by
all necessary corporate action, and are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights,
and are entitled to the benefit of the security afforded by the
Mortgage.
(5) There is no recording or filing required under the
laws of the State of Arkansas in order to perfect and maintain in
favor of the Trustees (a) the security interest created by the
Supplementary Capital Funds Agreement in the Company's right,
title and interest in and to the Company's rights to receive
moneys described in clause (x) of Section 5.1 thereof and the
Collateral described in Section 5.1 thereof or (b) the security
interest created by the Assignment of Availability Agreement in
the Company's right, title and interest in and to the Collateral
described in Section 1.1 thereof.
(6) The issuance and sale by the Company of the Bonds,
the execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement and the consummation of the transactions contemplated
thereby (a) will not violate or conflict with any provision of
the Company's Amended and Restated Articles of Incorporation or
By-laws, each as amended, and (b) will not violate or conflict
with any provision of any law or regulation of the State of
Arkansas or any subdivision thereof applicable to the Company or,
to the best of our knowledge (having made due inquiry with
respect thereto), any provision of any order, writ, judgment or
decree of any governmental instrumentality of the State of
Arkansas or any subdivision thereof applicable to the Company.
(7) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration or
filing with any Arkansas governmental authority is required in
connection with the issuance and sale of the Bonds or the
execution, delivery and performance by the Company of the
Mortgage, the Availability Agreement, the Assignment of
Availability Agreement, the Capital Funds Agreement, the
Supplementary Capital Funds Agreement and this Underwriting
Agreement.
With respect to the opinions set forth in paragraphs 2
and 4 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
Since we have acted herein only as Arkansas counsel for
the Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under this Underwriting Agreement, and the underwriters
to whom your respective opinions are addressed may rely upon this
opinion in connection with this Underwriting Agreement and the
transactions contemplated thereunder as though it were addressed
and delivered to such underwriters. This opinion may not be
relied upon in any other manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of System Company Counsel]
___________ ___, _____
[UNDERWRITERS]
c/o [Lead Underwriter]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for (the
"Company") in connection with the transactions contemplated by
this Underwriting Agreement, effective ___________ ___, _____
(the "Underwriting Agreement"), between System Energy Resources,
Inc. ("System Energy") and you, relating to the issuance and sale
by System Energy of $__________ in aggregate principal amount of
its First Mortgage Bonds, % Series due ___________ ___, _____
(the "Bonds"). This opinion is rendered to you at the request of
the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have reviewed (a) the
Availability Agreement dated as of June 21, 1974, as amended (the
"Availability Agreement"), among System Energy, the Company,
[insert names of other System operating companies]; (b) the
____________ Assignment of Availability Agreement, Consent and
Agreement, dated as of ___________ ___, _____ (hereinafter
referred to as the "Assignment of Availability Agreement") among
System Energy, the Trustees under System Energy's Mortgage and
Deed of Trust dated as of June 15, 1977, as supplemented, the
Company and [insert names of other System operating companies];
(c) the records of various corporate proceedings relating to the
Company's participation in the Availability Agreement and the
Assignment of Availability Agreement; (d) the proceedings before
the Commission under the Holding Company Act relating to the
Company's participation in the Availability Agreement and the
Assignment of Availability Agreement; and (e) the Registration
Statement and Prospectus. We have also examined such other
matters as we have deemed necessary in order to render this
opinion. Capitalized terms used herein and not otherwise defined
have the meanings ascribed to such terms in this Underwriting
Agreement.
Subject to the foregoing, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of and has the corporate power and authority to conduct
its business in the State(s) of and to
own and operate the properties owned and operated by it in such
business.
(2) The Availability Agreement and the Assignment of
Availability Agreement have been duly authorized, executed and
delivered by the Company and constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except as limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(3) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the Company's
participation in the Availability Agreement and the Assignment of
Availability Agreement; to the best of our knowledge, such order
is in full force and effect; and no further approval,
authorization, consent or other order of any governmental body is
legally required to permit the execution, delivery and
performance by the Company of the Availability Agreement and the
Assignment of Availability Agreement, except (other than with
respect to Section 2.2(b) of the Assignment of Availability
Agreement), in the event that System Energy shall determine to
sell capacity and/or energy from any generating unit under the
terms of the Availability Agreement or the Assignment of
Availability Agreement, appropriate orders, or the taking of
other action, by governmental regulatory authorities having
jurisdiction pursuant to valid statutory enactments as to the
specific terms and provisions under which capacity and/or energy
shall be made available.
(4) The execution, delivery and performance by the
Company of the Availability Agreement and the Assignment of
Availability Agreement and the consummation of the transactions
contemplated thereby (a) will not violate any provision of the
Company's Restated Articles of Incorporation or By-laws, each as
amended, (b) will not violate or conflict with any provision of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in any of the assets of the Company pursuant to the
provisions of, any mortgage, indenture, contract, agreement or
other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except as
set forth in the exceptions to the opinions set forth in
paragraph (3) above).
We have examined the portions of the information
contained or incorporated by reference in the Registration
Statement which are stated therein to have been made on our
authority, and we believe such information to be correct.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with this Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
[SYSTEM COMPANY COUNSEL]
<PAGE>
EXHIBIT E
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $__________ in aggregate principal amount of
First Mortgage Bonds, ___% Series due ___________ ___, _____ (the
"Bonds"), issued by System Energy Resources, Inc. (the "Company")
under the Company's Mortgage and Deed of Trust, dated as of June
15, 1977, as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the __________ Supplemental Indenture dated as of ___________
___, _____ (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage"),
pursuant to the agreement between you and the Company effective
_____________ __, ____ (the "Underwriting Agreement").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America and the General
Corporation Law of the State of Delaware. We have, with your
consent, relied upon opinions of even date herewith addressed to
you (or upon which it is stated that you may rely) of (i) Friday,
Eldredge & Clark, (ii) Wise Carter Child & Caraway, Professional
Association, and (iii) [Monroe & Lemann (A Professional
Corporation)] as to all matters of Arkansas, Mississippi, and
Louisiana law, respectively, related to this opinion. We have
reviewed said opinions and believe that they are satisfactory.
We have also reviewed the opinion of Reid & Priest LLP required
by Section 7(d) of the Underwriting Agreement, and we believe
said opinion to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to enable us to render this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company and
statements in the Registration Statement hereinafter mentioned.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of the documents
submitted to us as certified or photostatic copies, and the
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the Bonds
except a specimen thereof, and we have relied upon a certificate
of the United States Trust Company of New York as to the due
authentication and delivery of the Bonds. We have not examined
into, and are expressing no opinion or belief as to matters
relating to, titles to property, franchises or the nature and
extent of the lien of the Mortgage. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in this Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas.
(2) The Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the New
Bonds" and "Description of the Offered Bonds," respectively,]
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(4) The Bonds have been duly and validly authorized by
all necessary corporate action, and are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(5) This Underwriting Agreement and the Assignment of
Availability Agreement and the Supplementary Capital Funds
Agreement have been duly authorized, executed and delivered by
the parties thereto.
(6) An appropriate order has been entered by the
Commission under the 1935 Act granting the application, as
amended, with respect to the Bonds and to the best of our
knowledge such order is in full force and effect.
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statements of eligibility of the Trustees under the Mortgage,
upon which we do not pass) the Trust Indenture Act and the
applicable instructions, rules and regulations of the Commission
thereunder or pursuant to said instructions, rules and
regulations are deemed to comply therewith; and, with respect to
the documents or portions thereof filed with the Commission
pursuant to the Exchange Act, and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, such documents or
portions thereof, on the date first filed with the Commission,
complied as to form in all material respects with the applicable
provisions of the Exchange Act, and the applicable instructions,
rules and regulations of the Commission thereunder or pursuant to
said instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8 of the
Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) hereof. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we had conferences with certain officers and
representatives of the Company and of its affiliates, with
counsel for the Company, with the independent certified public
accountants of the Company who examined the financial statements
incorporated by reference in the Registration Statement, and with
your representatives. Our examination of the Registration
Statement and the Prospectus, and our discussions in the above-
mentioned conferences, did not disclose to us any information
which gives us reason to believe that the Registration Statement,
at the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424(b) under the Securities Act and at the date hereof, contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or Prospectus or as to the statements
contained in the Form T-1 and Form T-2 filed as exhibits to the
Registration Statement or as to the information contained in the
Prospectus Supplement under the caption ["Description of Offered
Bonds - Book-Entry Offered Bonds."]
With respect to the opinions set forth in paragraphs 2
and 3 above, we call your attention to the fact that the
provisions of the Atomic Energy Act of 1954, as amended, and
regulations promulgated thereunder impose certain licensing and
other requirements upon persons (such as the Trustees under the
Mortgage or other purchasers pursuant to the remedial provisions
of the Mortgage) who seek to acquire, possess or use nuclear
production facilities.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with this Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT F
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
<PAGE>
Exhibit B-2(a)
___________ ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This _____________ Assignment of Availability
Agreement, Consent and Agreement (hereinafter referred to as
"this Assignment"), dated as of ___________,_____, is made by and
between System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), Arkansas Power & Light Company
("AP&L") (successor in interest to Arkansas Power & Light Company
and Arkansas-Missouri Power Company ("Ark-Mo")), Louisiana Power
& Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI")
(hereinafter AP&L, LP&L, MP&L, and NOPSI are called individually
a "System Operating Company" and collectively, the "System
Operating Companies"), and United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee")(the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy Corporation (successor to Middle South
Utilities, Inc.) ("Entergy") owns all of the outstanding common
stock of the Company and each of the System Operating Companies,
and the Company has a 90% undivided ownership and leasehold
interest in Unit 1 of the Grand Gulf Nuclear Electric Station
project ("Project") (more fully described in the "Indenture"
hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent") and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of June 15,
1981 as amended by the First Amendment dated as of February 5,
1982 (as so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment) dated as of
June 30, 1977, between the Company, the System Operating
Companies, Ark-Mo and the Domestic Agent (the "First Assignment
of Availability Agreement"), the Company assigned to the Domestic
Agent (for the benefit of such banks), as collateral security for
the above loans, certain of the Company's rights under an
Availability Agreement dated as of June 21, 1974, as amended by
the First Amendment thereto dated as of June 30, 1977 (the
"Original Availability Agreement") between the Company, the
System Operating Companies and Ark-Mo; (iii) the First Bank Loan
Amendment, among other things, increased the amount of the loans
to be made by the banks party thereto to $808,000,000 and
pursuant to the Fourth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of March 20, 1980 (the "Fourth Assignment
of Availability Agreement"), the Company's same rights under the
Original Availability Agreement were further assigned as
collateral security for the loans made under the Amended and
Restated Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of revolving
credit loans by the banks named therein to the Company from time
to time in an aggregate amount not in excess of $1,311,000,000 at
any one time outstanding, and (b) the making of a term loan by
said banks in an aggregate amount not to exceed $1,311,000,000,
and pursuant to the Fifth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 15, 1981 (the "Fifth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement; and (v) the Second Bank Loan
Second Amendment, among other things, increased the amount of the
loans to be made by the banks party thereto to $1,711,000,000 and
pursuant to the Eighth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 30, 1983 (the "Eighth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and the Trustees, as trustees for the holders
of $400,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9.25% Series due 1989 (the "First Series Bonds")
issued under a Mortgage and Deed of Trust dated as of June 15,
1977 between the Company and the Trustees (the "Mortgage"), as
supplemented by a First Supplemental Indenture dated as of
June 15, 1977 between the Company and the Trustees (the Mortgage
as so supplemented and as supplemented by a Second Supplemental
Indenture dated as of January 1, 1980, a Third Supplemental
Indenture dated as of June 15, 1981, a Fourth Supplemental
Indenture dated as of June 1, 1984, a Fifth Supplemental
Indenture dated as of December 1, 1984, a Sixth Supplemental
Indenture dated as of May 1, 1985, a Seventh Supplemental
Indenture dated as of June 15, 1985, an Eighth Supplemental
Indenture dated as of May 1, 1986, a Ninth Supplemental Indenture
dated as of May 1, 1986, a Tenth Supplemental Indenture dated as
of September 1, 1986, an Eleventh Supplemental Indenture dated as
of September 1, 1986, a Twelfth Supplemental Indenture dated as
of September 1, 1986, a Thirteenth Supplemental Indenture dated
as of November 15, 1987, a Fourteenth Supplemental Indenture
dated as of December 1, 1987, a Fifteenth Supplemental Indenture
dated as of July 1, 1992, a Sixteenth Supplemental Indenture
dated as of October 1, 1992, a Seventeenth Supplemental Indenture
dated as of October 1, 1992, an Eighteenth Supplemental Indenture
dated as of April 1, 1993, and a Nineteenth Supplemental
Indenture dated as of April 1, 1994 and as the same may from time
to time hereafter be amended and supplemented in accordance with
its terms, being hereinafter called the "Indenture"), entered
into the Second Assignment of Availability Agreement, Consent and
Agreement dated as of June 30, 1977 (the "Second Assignment of
Availability Agreement") (substantially in the form of this
Assignment) to secure the First Series Bonds; (ii) the Company,
the System Operating Companies, and the Trustees, as trustees for
the holders of $98,500,000 aggregate principal amount of the
Company's First Mortgage Bonds, 12.50% Series due 2000 (the
"Second Series Bonds") issued under the Mortgage, as supplemented
by a Second Supplemental Indenture, dated as of January 1, 1980
between the Company and the Trustees, entered into the Third
Assignment of Availability Agreement, Consent and Agreement dated
as of January 1, 1980 (the "Third Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Second Series Bonds; (iii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Assignment of
Availability Agreement, Consent and Agreement dated as of
December 1, 1984 (the "Eleventh Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Third Series Bonds; (iv) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 15.375% Series due 2000 (the "Fourth Series
Bonds") issued under the Mortgage, as supplemented by a Sixth
Supplemental Indenture, dated as of May 1, 1985 between the
Company and the Trustees, entered into the Thirteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1985 (the "Thirteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Fourth Series Bonds; (v) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Sixteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Seventh Series Bonds; (vi) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9 7/8% Series due 1991 (the "Eighth Series
Bonds") issued under the Mortgage, as supplemented by a Tenth
Supplemental Indenture, dated as of September 1, 1986 between the
Company and the Trustees, entered into the Seventeenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Seventeenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eighth Series Bonds; (vii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $250,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 10 1/2% Series due 1996 (the "Ninth Series
Bonds") issued under the Mortgage, as supplemented by an Eleventh
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Eighteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Eighteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Ninth Series Bonds; (viii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11 3/8% Series due 2016 (the "Tenth Series
Bonds") issued under the Mortgage, as supplemented by a Twelfth
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Nineteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Nineteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Tenth Series Bonds; (ix) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth Assignment
of Availability Agreement, Consent and Agreement dated as of
November 15, 1987 (the "Twentieth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eleventh Series Bonds; (x) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14.34% Series due 1992 (the "Twelfth Series
Bonds") issued under the Mortgage, as supplemented by a
Fourteenth Supplemental Indenture dated as of December 1, 1987
between the Company and the Trustees, entered into the
Twenty-first Assignment of Availability Agreement, Consent and
Agreement dated as of December 1, 1987 (the "Twenty-first
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Twelfth Series Bonds; (xi)
the Company, the System Operating Companies and the Trustees, as
trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Assignment of Availability Agreement, Consent
and Agreement dated as of July 1, 1992 (the "Twenty-fourth
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Thirteenth Series Bonds;
(xii) the Company, the System Operating Companies and the
Trustees, as trustees for the holders of $105,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 6.12%
Series due 1995 (the "Fourteenth Series Bonds") issued under the
Mortgage, as supplemented by a Sixteenth Supplemental Indenture
dated as of October 1, 1992 between the Company and the Trustees,
entered into the Twenty-fifth Assignment of Availability
Agreement, Consent and Agreement dated as of October 1, 1992 (the
"Twenty-fifth Assignment of Availability Agreement") (also
substantially in the form of this Assignment) to secure the
Fourteenth Series Bonds; (xiii) the Company, the System Operating
Companies and the Trustees, as trustees for the holders of
$70,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 8.25% Series due 2002 (the "Fifteenth Series
Bonds") issued under the Mortgage, as supplemented by a
Seventeenth Supplemental Indenture dated as of October 1, 1992
between the Company and the Trustees, entered into a Twenty-sixth
Assignment of Availability Agreement, Consent and Agreement dated
as of October 1, 1992 (the "Twenty-sixth Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Fifteenth Series Bonds; (xiv) the
Company, the System Operating Companies and the Trustees, as
trustees for the holders of $60,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 6% Series due 1998
(the "Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
a Twenty-seventh Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1993 (the "Twenty-seventh
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Sixteenth Series Bonds;
and (xv) Entergy, the Company and the Trustees, as trustees for
the holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7-5/8% series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1994 (the "Twenty-ninth
Assignment of Availability Agreement") (also substantially in the
form of this Agreement) to secure the Seventeenth Series Bonds.
D. The Original Availability Agreement has been
amended by the First Amendment thereto dated as of June 30, 1977,
the Second Amendment thereto dated June 15, 1981, the Third
Amendment thereto dated June 28, 1984 and the Fourth Amendment
thereto dated as of June 1, 1989 (the Original Availability
Agreement, as so amended and as it may be further amended and
supplemented, is hereinafter referred to as the "Availability
Agreement").
E. Unit No. 1 and Unit No. 2 of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Energy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of February 18, 1983
between the Company, the System Operating Companies and the
Eurodollar Agent (the "Seventh Assignment of Availability
Agreement"), the Company assigned to the Eurodollar Agent (for
the benefit of the Eurodollar Banks), as collateral security for
such loans, certain of the Company's rights under the
Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement"),
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement"), which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of
December 1, 1984 (the "Series C Reimbursement Agreement") which
provided, among other things, for the issuance by the Banks for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series C (the "Series C Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Twelfth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1984
between the Company, the System Operating Companies, the Banks
and Deposit Guaranty National Bank, as trustee (the "Twelfth
Assignment of Availability Agreement"), the Company assigned to
the Banks and Deposit Guaranty National Bank, as trustee, as
collateral security for the Company's obligations under the
Series C Reimbursement Agreement and the Series C Bonds, certain
of the Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$47,208,334 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series A (the "Fifth Series
Bonds") issued under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
June 15, 1985 (the "Fourteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) (the "Series D
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of June 15, 1985 naming the Trustee as
trustee. Pursuant to the Fourteenth Assignment of Availability
Agreement, the Company assigned to the Mortgage Trustees and the
Trustee, as collateral security for the Company's obligations
under the Series D Bonds, certain of the Company's rights under
the Availability Agreement.
K. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$95,643,750 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series B (the "Sixth Series
Bonds") issued under the Mortgage, as supplemented by an Eighth
Supplemental Indenture dated as of May 1, 1986 between the
Company and the Trustees, entered into the Fifteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Fifteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) (the "Series E
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth Assignment of
Availability Agreement, the Company assigned to the Trustees and
Deposit Guaranty National Bank, as collateral security for the
Company's obligations under the Series E Bonds, certain of the
Company's rights under the Availability Agreement.
L. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor)(collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto each
dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein (the "1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOC. Pursuant to the Twenty-second
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment), dated as of
December 1, 1988 (the "Twenty-second Assignment of Availability
Agreement"), the Company assigned to Chemical Bank (the
"Administrating Bank"), as collateral security for the Company's
obligations under the Reimbursement Agreement, certain of the
Company's rights under the Availability Agreement.
M. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-third Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of January 11, 1991
("Twenty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the First Amendment
to Reimbursement Agreement dated as of January 11, 1991 (the
"First Amendment to Reimbursement Agreement") (the Reimbursement
Agreement, as amended by the First Amendment to Reimbursement
Agreement, is herein called the First Amended Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by The Bank of Tokyo, Ltd., Los Angeles Agency (the
"Funding Bank"), for the account of the Company, of irrevocable
transferable letters of credit ("1991 LOCs") to the Owner
Participants to secure certain obligations of the Company to the
Owner Participants, such 1991 LOCs to be substantially in the
form of Exhibit A to the First Amended Reimbursement Agreement,
with maximum amounts of $116,601,440 and $29,150,360; (ii) for
the reimbursement to the Funding Bank by the banks named in the
First Amended Reimbursement Agreement (the "Participating Banks")
for all drafts paid by the Funding Bank under any 1991 LOC; and
(iii) for the reimbursement by the Company to the Funding Bank
for the benefit of the Participating Banks of sums equal to all
drafts paid by the Funding Bank under any 1991 LOC.
N. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-eighth Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 17, 1993
("Twenty-eighth Assignment of Availability Agreement") in
connection with the execution and delivery of the Second
Amendment to Reimbursement Agreement, dated as of December 17,
1993 ("Second Amendment to Reimbursement Agreement")(the First
Amended Reimbursement Agreement, as amended by the Second
Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
O. The Company seeks to finance part of the capital
costs related to the Project with borrowed funds and, to that
end, the Company has entered into an Underwriting Agreement with
__________________, dated as of _________, ____, providing, among
other things, for the issue and sale by the Company of
$__________ aggregate principal amount of First Mortgage Bonds,
________% Series due ________ (the "______________ Series
Bonds"), to be issued under and secured pursuant to the Indenture
as heretofore supplemented and as further supplemented by a
______________ Supplemental Indenture dated as of _______,
______.
P. The Company, by this instrument, wishes to (i)
provide for the assignment by the Company to the Trustees of
certain of the Company's rights under the Availability Agreement,
and (ii) create enforceable rights hereunder in the Trustees, all
as hereunder set forth.
Q. The System Operating Companies are willing to, and
by this instrument do, supplement their undertakings under the
Availability Agreement in the same manner as in the Assignments
of Availability Agreement.
R. The Company, Entergy and the System Operating
Companies have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-_____, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Assignment and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of execution and delivery hereof.
S. All things necessary to make this Assignment the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Security Assignment and Agreement
1.1 Assignment and Creation of Security Interest. As
security for (i) the due and punctual payment of the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the ____________ Series Bonds (whether at
maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise) and (ii) the due and punctual payment
of all fees and costs, expenses and other amounts which may
become payable by the Company under the Indenture which are a
charge on the trust estate thereunder which is superior to the
charge thereon for the benefit of the _____________ Series Bonds,
together in each case with all costs of collection thereof (all
such amounts referred to in the foregoing clauses (i) and (ii)
being hereinafter collectively referred to as "Obligations
Secured Hereby"), the Company hereby assigns to the Trustees, and
creates a security interest in favor of the Trustees in all of
the Company's rights to receive all moneys paid or to be paid to
the Company pursuant to Section 4 of the Availability Agreement
or advances pursuant to Section 2.2(b) hereof, but only to the
extent that such payments or advances are attributable to
payments or advances with respect to Unit No. 1 or Unit No. 2,
and all other claims, rights (but not obligations or duties),
powers, privileges, interests and remedies of the Company,
whether arising under the Availability Agreement or this
Assignment or by statute or in law or in equity or otherwise,
resulting from any failure by any System Operating Company to
perform its obligations under the Availability Agreement or this
Assignment, but only to the extent that such claims, rights,
powers, privileges, interests and remedies relate to Unit No. 1
and Unit No. 2, all to the extent, but only to the extent,
required for the payment when due and payable of Obligations
Secured Hereby, together in each case with full power and
authority, in the name of the Trustees (or either of them), or
the Company as assignor, or otherwise, to demand payment of,
enforce, collect, receive and receipt for any and all of the
foregoing (the rights, claims, powers, privileges, interests and
remedies referred to above being hereinafter sometimes called the
"Collateral").
1.2 Other Agreements.
(a) The Company has not and will not assign the rights
assigned in Section 1.1 as security for any indebtedness other
than the Obligations Secured Hereby, except as recited and
provided in paragraph (b) of this Section 1.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks
referred to in Whereas Clause B hereof by the First, Fourth,
Fifth and Eighth Assignments of Availability Agreement,
respectively, (ii) the First Series Bonds, the Second Series
Bonds, the Third Series Bonds, the Fourth Series Bonds, the
Seventh Series Bonds, the Eighth Series Bonds, the Ninth Series
Bonds, the Tenth Series Bonds, the Eleventh Series Bonds, the
Twelfth Series Bonds, the Thirteenth Series Bonds, the Fourteenth
Series Bonds, the Fifteenth Series Bonds, the Sixteenth Series
Bonds, and the Seventeenth Series Bonds, as referred to in
Whereas Clause C hereof by the Second, Third, Eleventh,
Thirteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth,
Twentieth, Twenty-first, Twenty-fourth, Twenty-fifth, Twenty-
sixth, Twenty-seventh and Twenty-ninth Assignments of
Availability Agreement, respectively, (iii) loans made by certain
banks as referred to in Whereas Clause F hereof by the Sixth and
Seventh Assignments of Availability Agreement, respectively, (iv)
the obligations under the Series A Reimbursement Agreement
referred to in Whereas Clause G hereof by the Ninth Assignment of
Availability Agreement, (v) the obligations under the Series B
Reimbursement Agreement as referred to in Whereas Clause H hereof
by the Tenth Assignment of Availability Agreement, (vi) the
obligations under the Series C Reimbursement Agreement as
referred to in Whereas Clause I hereof by the Twelfth Assignment
of Availability Agreement, (vii) the Fifth Series Bonds as
referred to in Whereas Clause J hereof by the Fourteenth
Assignment of Availability Agreement, (viii) the Sixth Series
Bonds as referred to in Whereas Clause K hereof by the Fifteenth
Assignment of Availability Agreement, (ix) the obligations under
the Reimbursement Agreement as referred to in Whereas Clause L
hereof by the Twenty-second Assignment of Availability Agreement,
(x) the obligations under the First Amended Reimbursement
Agreement as referred to in Whereas Clause M hereof by the
Twenty-third Assignment of Availability Agreement, and (xi) the
obligations under the Second Amended Reimbursement Agreement, as
referred to in Whereas Clause N hereof by the Twenty-eighth
Assignment of Availability Agreement, and shall be entitled to
secure the interest and premium, if any, on, and the principal
of, other Indebtedness for Borrowed Money of the Company issued
by the Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, Indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness (including such Indebtedness now outstanding) issued
for such purpose, the incurrence of which Indebtedness is at the
time permitted by the Indenture (herein, together with such
Indebtedness now outstanding, called "Additional Indebtedness"),
by entering into an assignment of availability agreement, consent
and agreement including, without limitation, the First through
____________ Assignments of Availability Agreement (each being
hereinafter called an "Additional Assignment") with the holders
of such Additional Indebtedness or representatives of or trustees
for such holders, or both, as the case may be (herein called an
"Additional Assignee"). Each Additional Assignment hereafter
entered into shall be substantially in the form of this
Assignment, except that there shall be substituted in such
Additional Assignment appropriate references to the Additional
Indebtedness secured thereby, the applicable Additional Assignee
and the agreement or instrument under which such Additional
Indebtedness is issued in lieu of the references herein to the
_______________ Series Bonds, the Trustees and the Indenture,
respectively, and such Additional Assignment may contain such
other provisions as are not inconsistent with this Assignment and
do not adversely affect the rights hereunder of the holders of
the ____________ Series Bonds or the Trustees, or any of them.
(c) Notwithstanding any provision of this Assignment
to the contrary, or any priority in time of creation, attachment
or perfection of a security interest, pledge or lien by the
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
hereunder with respect to the Availability Agreement and any
security interest, pledge or lien in favor of the Trustees now or
hereafter existing in and to the Collateral shall rank pari passu
with the claims of each Additional Assignee under the
corresponding provisions of the Additional Assignment to which it
is a party with respect to the Availability Agreement and any
security interest, pledge or lien in favor of such Additional
Assignee under such Additional Assignment now or hereafter
existing in and to the Collateral, irrespective of the time or
times at which prior, concurrent or subsequent Additional
Assignments are entered into in accordance with Section 1.2(b)
hereof.
1.3 Payments to the Corporate Trustee. The Company
agrees that, if and whenever it shall make a demand to a System
Operating Company for any payment pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to Unit No. 1 or Unit No. 2, it will
separately identify the respective portions of such payment or
advance, if any, required for (i) the payment of Obligations
Secured Hereby and (ii) the payment of any other amounts then due
and payable in respect of Additional Indebtedness and instruct
such System Operating Company (subject to the provisions of
Section 1.4 hereof) to pay or cause to be paid the amount so
identified as required for the payment of Obligations Secured
Hereby directly to the Corporate Trustee. Any payments made by
any System Operating Company pursuant to Section 4 of the
Availability Agreement or advances pursuant to Section 2.2(b)
hereof with respect to Unit No. 1 or Unit No. 2 shall, to the
extent necessary to satisfy in full the assignment set forth in
Section 1.1 of this Assignment and the corresponding assignments
set forth in the Additional Assignments, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
1.4 Payments to the Company. Notwithstanding the
provisions of Sections 1.1 and 1.3, unless and until the
Corporate Trustee shall have given written notice to the System
Operating Companies of the occurrence and continuance of any
Default (as defined in the Indenture), all moneys paid or to be
paid to the Company pursuant to Section 4 of the Availability
Agreement or advanced pursuant to Section 2.2(b) hereof with
respect to Unit No. 1 and Unit No. 2 shall be paid or advanced
directly to the Company and the Company need not separately
identify the respective portions of payments or advances as
provided in Section 1.3 hereof, provided that notice as to the
amount of any such payments or advances shall be given by the
Company to the Corporate Trustee simultaneously with the demand
by the Company for any such payments or advances. If the
Corporate Trustee shall have duly notified the System Operating
Companies of the occurrence of any such Default, such payments or
advances shall be made in the manner and in the amounts specified
in Section 1.3 hereof until the Corporate Trustee shall by
further notice to the System Operating Companies give permission
that all such payments or advances may be made again to the
Company, such permission being subject to revocation by a
subsequent notice pursuant to the first sentence of this
Section 1.4. The Corporate Trustee shall give such permission if
no such Default continues to exist.
1.5 Definitions. For the purposes of this Assignment,
the following terms shall have the following meanings:
(a) the term "Indebtedness for Borrowed Money" shall mean
the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project; and
(b) the term "Subordinated Indebtedness of the Company"
shall mean indebtedness marked on the books of the Company as
subordinated and junior in right of payment to the Obligations
Secured Hereby (as defined in Section 1.1 hereof) to the extent
and in the manner set forth below:
(i) if there shall occur a Default (as defined in the
Indenture), then so long as such Default shall be continuing and
shall not have been cured or waived, or unless and until all the
Obligations Secured Hereby shall have been paid in full in money
or money's worth at the time of receipt, no payment of principal
and premium, if any, or interest shall be made upon Subordinated
Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar proceedings, or any
receivership proceedings in connection therewith, relative to the
Company or its creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, then the Obligations Secured Hereby shall
first be paid in full in money or money's worth at the time of
receipt, or payment thereof shall have been provided for, before
any payment on account of principal, premium, if any, or interest
is made upon Subordinated Indebtedness of the Company.
ARTICLE II.
Consent to Assignment by the System Operating
Companies and Other Agreements
2.1 Consent to Assignment by the System Operating
Companies.
(a) Each System Operating Company hereby consents to
the assignment under Article I and agrees with the Trustees to
make payments or advances to the Corporate Trustee in the amounts
and in the manner specified in Section 1.3 at the Corporate
Trustee's address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the
Availability Agreement and Section 2.2(g) hereof, each System
Operating Company agrees that all payments or advances made to
the Corporate Trustee or to the Company as contemplated by
Sections 1.3 and 1.4 hereof shall be final as between such System
Operating Company and the Corporate Trustee or the Company, as
the case may be, and that it will not seek to recover from the
Corporate Trustee for any reason whatsoever any moneys paid or
advanced to the Corporate Trustee by virtue of this Assignment,
but the finality of any such payment or advance shall not prevent
the recovery of any overpayments or mistaken payments or excess
advances or mistaken advances which may be made by such System
Operating Company unless a Default has occurred and is
continuing, in which case any such overpayment or mistaken
payment or excess advances or mistaken advances shall not be
recoverable but shall constitute Subordinated Indebtedness of the
Company to such System Operating Company.
2.2 Other Agreements. Anything in the Availability
Agreement to the contrary notwithstanding, it is hereby agreed as
follows:
(a) Regardless of whether any person or persons (other
than the System Operating Companies) shall become a Party or
Parties (as such terms are defined in the Availability Agreement)
to the Availability Agreement, the System Operating Companies
shall at all times be obligated to make the payments required
pursuant to Section 4 of the Availability Agreement and to make
advances pursuant to Section 2.2(b) hereof with respect to Unit
No. 1 and Unit No. 2 to the same extent as if the System
Operating Companies were the only Parties to the Availability
Agreement, except to the extent and only to the extent that such
payments or advances are actually made by such person or persons.
In the event that any such person shall become a Party to the
Availability Agreement, the Company and the System Operating
Companies shall cause such person, at the time when such person
becomes a Party to the Availability Agreement, to consent by
written instrument to the terms and provisions of this
Assignment, and thereupon such person shall be bound by all of
the terms and provisions of this Assignment (other than the
provisions of the preceding sentence) to the same extent as if
named a System Operating Company herein. A copy of such written
instrument, in form and substance satisfactory to the Corporate
Trustee, shall promptly be delivered to the Corporate Trustee
together with an opinion of counsel to the effect that such
instrument complies with the requirements hereof and constitutes
a valid, legally binding obligation of such person.
(b) In the event and to the extent that any action by
any governmental regulatory authority, including, without
limitation, the Federal Energy Regulatory Commission or any
successor thereto, shall have the effect of prohibiting the
System Operating Companies from making any payments which would
otherwise be required pursuant to Section 4 of the Availability
Agreement (as supplemented hereby) with respect to Unit No. 1 and
Unit No. 2, the System Operating Companies shall make advances to
the Company at the same time, and in the same amounts as such
prohibited payments and all such advances shall constitute
Subordinated Indebtedness of the Company.
(c) Each System Operating Company agrees that (i) all
Indebtedness for Borrowed Money of the Company to such System
Operating Company and all amounts paid by such System Operating
Company pursuant to Section 4 of the Availability Agreement or
advanced pursuant to Section 2.2(b) hereof shall constitute
Subordinated Indebtedness of the Company and (ii) no such
Subordinated Indebtedness of the Company shall be transferred or
assigned (including by way of security) to any person (other than
to a successor of such System Operating Company by way of merger,
consolidation or the acquisition by such person of all or
substantially all of such System Operating Company's assets). The
Company agrees that it shall duly record all Subordinated
Indebtedness of the Company as such on its books.
(d) The obligations of each System Operating Company
to make the payments to the Company pursuant to the provisions of
Section 4 of the Availability Agreement and the advances pursuant
to Section 2.2(b) hereof with respect to Unit No. 1 and Unit No.
2 having heretofore been authorized by the SEC Orders (and no
other authorization by any governmental regulatory authority
being required other than, with respect to the payments pursuant
to the provisions of Section 4 of the Availability Agreement,
appropriate orders, or the taking of other action, by the Federal
Energy Regulatory Commission or any successor thereto as to
specific terms and provisions under which power and energy
associated therewith available at the Project shall be made
available by the Company to the System Operating Companies and
pursuant to which the System Operating Companies shall agree to
pay the Company for the right to receive such power and the
energy associated therewith), each System Operating Company
agrees that its duty to perform such obligations shall be
absolute and unconditional, (a) whether or not such System
Operating Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit such System Operating Company to perform its other duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement (as defined in the Availability
Agreement), (b) whether or not the Company shall have received
all authorizations of governmental regulatory authorities
necessary at the time to permit the Company to perform its duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations
hereunder, under the Availability Agreement or under the System
Agreement, (e) whether or not the System Agreement shall, from
time to time, be amended, modified or supplemented or shall be
canceled or terminated or such System Operating Company shall
have withdrawn therefrom, (f) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to such System Operating
Company), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (g) whether or not the Company shall be
solvent, (h) whether or not the Company or such System Operating
Company shall continue to be subsidiary companies of Entergy (as
said term is defined in Section 2(a)(8) of the Public Utility
Holding Company Act of 1935), (i) regardless of any event of
force majeure, and (j) regardless of any other circumstance,
happening, condition or event whatsoever, whether or not similar
to any of the foregoing.
(e) In the event that Entergy shall cease to own at
least a majority of the common stock of any System Operating
Company, the obligations of such System Operating Company
hereunder and under the Availability Agreement shall not be
increased by an amendment to or modification of the terms and
provisions of the Indenture or the _____________ Series Bonds
unless such System Operating Company shall have consented in
writing to such amendment or modification.
(f) The obligations of each System Operating Company
under Section 4 of the Availability Agreement and Section 2.2(b)
hereof to make the payments or advances specified therein or
herein with respect to Unit No. 1 and Unit No. 2 to the Company
shall not be subject to any abatement, reduction, limitation,
impairment, termination, set-off, defense, counterclaim or
recoupment whatsoever or any right to any thereof (including, but
not limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
the Company to such System Operating Company or any claim by such
System Operating Company against the Company, whether or not
arising hereunder, under the Availability Agreement or under the
System Agreement and whether or not arising out of any action or
nonaction on the part of the Company or the Trustees (or either
of them), including any disposition of the Project or any part
thereof pursuant to the Indenture, requirements of governmental
authorities, actions of judicial receivers or trustees or
otherwise and whether or not arising from willful or negligent
acts or omissions). The foregoing, however, shall not, subject
to the provisions of paragraph (c) of this Section 2.2, affect in
any other way any rights and remedies of such System Operating
Company with respect to any amounts owed to such System Operating
Company by the Company or any such claim by such System Operating
Company against the Company. The obligations and liabilities of
each System Operating Company hereunder or under the Availability
Agreement shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or such System
Operating Company, whether or not the Company or such System
Operating Company shall have had any notice or knowledge of any
of the foregoing. Neither failure nor delay by the Company, the
Trustees (or either of them), or any holder or representative of
any holder of the ____________ Series Bonds to exercise any right
or remedy provided herein or by statute or at law or in equity
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude any other
or further exercise thereof, or the exercise of any other right
or remedy. Each System Operating Company also hereby irrevocably
waives, to the extent that it may do so under applicable law, any
defense based on the adequacy of a remedy at law which may be
asserted as a bar to the remedy of specific performance in any
action brought against such System Operating Company for specific
performance of this Assignment or the Availability Agreement by
the Company, by the Trustees (or either of them), by holders of
the _______________ Series Bonds or for their benefit by a
receiver or trustee appointed for the Company or in respect of
all or a substantial part of the Company's assets under the
bankruptcy or insolvency law of any jurisdiction to which the
Company is or its assets are subject. Anything in this Section
2.2(f) to the contrary notwithstanding, no System Operating
Company shall be precluded from asserting as a defense against
any claim made against such System Operating Company upon any of
its obligations hereunder and under the Availability Agreement
that it has fully performed such obligations in accordance with
the terms of this Assignment and the Availability Agreement.
(g) Each System Operating Company shall, subject to
the provisions of Section 2.2(c) hereof, be proportionately
subrogated to all rights of the Trustees and the holders of the
_______________ Series Bonds against the Company in respect of
any amounts paid or advanced by such System Operating Company
pursuant to the provisions of this Assignment and the
Availability Agreement and applied to the payment of the
Obligations Secured Hereby. The Trustees agree that they will
not deal with the Company, or any security for the
_______________ Series Bonds, in such a manner as to prejudice
such rights of any System Operating Company.
ARTICLE III.
Term
This Assignment shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of the
System Operating Companies and the Company set forth in this
Assignment are exclusively for the benefit of, and may be
enforced only by, the Trustees (or either of them), by the
holders of the _______________ Series Bonds as provided in the
Indenture, or for their benefit by a receiver or trustee for the
Company or in respect of all or a substantial part of its assets
under the bankruptcy or insolvency law of any jurisdiction to
which the Company is or its assets are subject.
ARTICLE IV.
Assignment
Neither this Assignment nor the Availability Agreement
nor any interest herein or therein may be assigned, transferred
or encumbered by any of the parties hereto or thereto, except
transfer or assignment by the Trustees (or either of them) to
their respective successors in accordance with Article XVII of
the Indenture, except as otherwise provided in Article I hereof
and except that
(i) in the event that any System Operating Company
shall consolidate with or merge with or into another corporation
or shall transfer to another corporation or other person all or
substantially all of its assets, this Assignment and the
Availability Agreement shall be transferred by such System
Operating Company to and shall be binding upon the corporation
resulting from such consolidation or merger or the corporation or
other person to which such transfer is made and, as a condition
to such consolidation, merger or other transfer, such corporation
or other person shall deliver to the Company and the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of such System Operating Company's
obligations and liabilities under this Assignment and the
Availability Agreement and an opinion of counsel to the effect
that such instrument complies with the requirements hereof and
thereof and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person; and
(ii) in the event that the Company shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Assignment and the Availability Agreement
shall be transferred by the Company to and shall be binding upon
the corporation resulting from such consolidation or merger or
the corporation or other person to which such transfer is made
and, as a condition to such consolidation, merger or other
transfer, such corporation or other person shall deliver to the
Corporate Trustee a written assumption, in form and substance
satisfactory to the Corporate Trustee, of the Company's
obligations and liabilities under this Assignment and the
Availability Agreement and an opinion of counsel to the effect
that such instrument complies with the requirements hereof and
thereof and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V.
Amendments
5.1 Restrictions on Amendments. Neither this
Assignment nor the Availability Agreement may be amended, waived,
modified, discharged or otherwise changed orally. This
Assignment and the Availability Agreement may be amended, waived,
modified, discharged or otherwise changed only by a written
instrument which has been signed by all the parties hereto, in
the case of this Assignment, or by the persons specified in
Section 11 of the Availability Agreement, in the case of the
Availability Agreement, and which has been approved by the
holders of more than 50% in principal amount of the
______________ Series Bonds Outstanding (as defined in the
Indenture) at the time of such consent or which does not
materially adversely affect the rights of the Trustees or the
holders of the ______________ Series Bonds or which is necessary
in order to qualify the Indenture under the Trust Indenture Act
of 1939, as contemplated by Section 20.04 of the Mortgage,
provided, however, that (i) without the written consent of the
holders of all the _______________ Series Bonds affected thereby,
no amendment, waiver, modification, discharge or other change in
or to this Assignment or the Availability Agreement shall be made
which shall change the terms of this Section 5.1 and (ii) no such
amendment, waiver, modification, discharge or other change shall
be made which shall modify, without the written consent of each
of the Trustees, the rights, duties or immunities of the Trustees
or either of them.
5.2 The Trustees' Execution. The Trustees shall, at
the request of the Company, execute any instrument amending,
waiving, modifying, discharging or otherwise changing this
Assignment, or any consent to the execution of any instrument
amending, waiving, modifying, discharging or otherwise changing
the Availability Agreement (a) as to which the Corporate Trustee
shall have received an opinion of counsel to the effect that such
instrument has been duly authorized by each person executing the
same and is permitted by the provisions of Section 5.1 hereof and
that this Assignment, or the Availability Agreement, as the case
may be, as amended, waived, modified, discharged or otherwise
changed by such instrument, constitutes valid, legally binding
and enforceable obligations of the Company and each of the System
Operating Companies, and (b) which shall have been executed by
the Company and each of the System Operating Companies. The
Trustees, and each of them, shall be fully protected in relying
upon the aforesaid opinion.
ARTICLE VI.
Notices
6.1 Notices, etc., in Writing. All notices, consents,
requests and other documents authorized or permitted to be given
pursuant to this Assignment shall be given in writing and either
personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Arkansas Power & Light Company, to:
425 West Capitol Avenue
Little Rock, Arkansas 72201
Attention: President
If to Louisiana Power & Light Company, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Mississippi Power & Light Company, to:
308 East Pearl Street
Jackson, Mississippi 39201
Attention: President
If to New Orleans Public Service Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company of New York
114 West 47th Street
New York, New York 10036
with copies to each other party.
6.2 Delivery, etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 6.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VII.
Enforcement
7.1 Indenture Terms and Conditions. The Trustees, and
each of them, enter into and accept this Assignment upon the
terms and conditions set forth in Article XVII of the Indenture
with the same force and effect as if those terms and conditions
were repeated at length herein and made applicable to the
Trustees, and each of them, in respect of this Assignment and the
trusts hereunder and in respect of any action taken, suffered or
omitted to be taken by the Trustees, or either of them,
hereunder. Nothing in this Assignment shall affect any right or
remedy of the Company or any System Operating Company against the
Trustees, or either of them (other than those specifically waived
herein), for breach or violation of any of the obligations or
duties of the Trustees assumed or undertaken in this Assignment.
Without limiting the generality of the foregoing, the Trustees,
and each of them, assume no responsibility as to the validity or
enforceability hereof or for the correctness of the recitals of
fact contained herein or in the Availability Agreement, which
shall be taken as the statements, representations and warranties
of the Company and the System Operating Companies.
7.2 Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, the Trustees
(or either of them) may proceed, either in their, its or his own
name or as trustees or trustee of an express trust or otherwise,
to protect and enforce the rights of the Trustees (or either of
them) and those of the Company under this Assignment and the
Availability Agreement by suit in equity, action at law or other
appropriate proceedings, whether for the specific performance of
any covenant or agreement contained herein or in the Availability
Agreement or otherwise, and whether or not the Company shall have
complied with any of the provisions hereof or thereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the Trustees, and each
of them, shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Indenture or now or hereafter existing at law or in equity or
by statute.
7.3 Attorney-in-Fact. The Company hereby constitutes
the Trustees, and each of them, with authority to act without the
other, its true and lawful attorney, irrevocably, with full power
(in such attorney's name or otherwise), at any time when a
Default under the Indenture has occurred and is continuing, to
enforce any of the obligations contained herein or in the
Availability Agreement or to take any action or institute any
proceedings which to the Trustees (or either of them) may seem
necessary or advisable in the premises.
ARTICLE VIII.
Severability
If any provision or provisions of this Assignment shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE IX.
Governing Law
This Assignment and, so long as this Assignment shall
be in effect, the Availability Agreement, shall be governed by
and construed in accordance with the laws of the State of New
York.
ARTICLE X.
Succession
Subject to Article IV hereof, this Assignment and the
Availability Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment hereof, or of the Availability
Agreement, or of any right to any funds due or to become due
under this Assignment or the Availability Agreement shall in any
event relieve the Company or any System Operating Company of
their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ARKANSAS POWER & LIGHT COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By:
Name:
Title:
GERARD F. GANEY, as
Individual Trustee
Exhibit B-2(b)
___________ ASSIGNMENT OF AVAILABILITY AGREEMENT, CONSENT AND
AGREEMENT
This _____________ Assignment of Availability
Agreement, Consent and Agreement (hereinafter referred to as
"this Assignment"), dated as of ___________,_____, is made by and
between System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), Arkansas Power & Light Company
("AP&L") (successor in interest to Arkansas Power & Light Company
and Arkansas-Missouri Power Company ("Ark-Mo")), Louisiana Power
& Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI")
(hereinafter AP&L, LP&L, MP&L, and NOPSI are called individually
a "System Operating Company" and collectively, the "System
Operating Companies"), United States Trust Company of New York,
as trustee (hereinafter called the "Corporate Trustee"), Gerard
F. Ganey (successor to Malcolm J. Hood), as trustee (hereinafter
called the "Individual Trustee")(the Corporate Trustee and the
Individual Trustee being hereinafter called the "Trustees") and
Deposit Guaranty National Bank, as trustee under the Trust
Indenture referred to below (the "Issuer Trustee").
WHEREAS:
A. Entergy Corporation (successor to Middle South
Utilities, Inc.) ("Entergy") owns all of the outstanding common
stock of the Company and each of the System Operating Companies,
and the Company has a 90% undivided ownership and leasehold
interest in Unit No. 1 of the Grand Gulf Nuclear Electric Station
project ("Project") (more fully described in the "Indenture"
hereinafter referred to).
B. Prior hereto, (i) the Company, Manufacturers
Hanover Trust Company, as agent for certain banks (the "Domestic
Agent") and said banks entered into an Amended and Restated Bank
Loan Agreement dated as of June 30, 1977 (the "Amended and
Restated Agreement"), the First Amendment thereto dated as of
March 20, 1980 (the "First Bank Loan Amendment"), the Second
Amended and Restated Bank Loan Agreement dated as of June 15,
1981 as amended by the First Amendment dated as of February 5,
1982 (as so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment) dated as of
June 30, 1977, between the Company, the System Operating
Companies, Ark-Mo and the Domestic Agent (the "First Assignment
of Availability Agreement"), the Company assigned to the Domestic
Agent (for the benefit of such banks), as collateral security for
the above loans, certain of the Company's rights under an
Availability Agreement dated as of June 21, 1974, as amended by
the First Amendment thereto dated as of June 30, 1977 (the
"Original Availability Agreement") between the Company, the
System Operating Companies and Ark-Mo; (iii) the First Bank Loan
Amendment, among other things, increased the amount of the loans
to be made by the banks party thereto to $808,000,000 and
pursuant to the Fourth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of March 20, 1980 (the "Fourth Assignment
of Availability Agreement"), the Company's same rights under the
Original Availability Agreement were further assigned as
collateral security for the loans made under the Amended and
Restated Agreement as amended by the First Bank Loan Agreement;
(iv) the Second Amended and Restated Bank Loan Agreement
provided, among other things, for (a) the making of revolving
credit loans by the banks named therein to the Company from time
to time in an aggregate amount not in excess of $1,311,000,000 at
any one time outstanding, and (b) the making of a term loan by
said banks in an aggregate amount not to exceed $1,311,000,000,
and pursuant to the Fifth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 15, 1981 (the "Fifth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement; and (v) the Second Bank Loan
Second Amendment, among other things, increased the amount of the
loans to be made by the banks party thereto to $1,711,000,000 and
pursuant to the Eighth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment) dated as of June 30, 1983 (the "Eighth Assignment of
Availability Agreement"), the Company's same rights under the
Original Availability Agreement, as amended by the Second
Amendment thereto dated June 15, 1981, were further assigned as
collateral security for the loans made under the Second Amended
and Restated Bank Loan Agreement, as amended by the Second Bank
Loan Second Amendment.
C. Prior hereto (i) the Company, the System Operating
Companies, Ark-Mo, and the Trustees, as trustees for the holders
of $400,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9.25% Series due 1989 (the "First Series Bonds")
issued under a Mortgage and Deed of Trust dated as of June 15,
1977 between the Company and the Trustees (the "Mortgage"), as
supplemented by a First Supplemental Indenture dated as of
June 15, 1977 between the Company and the Trustees (the Mortgage
as so supplemented and as supplemented by a Second Supplemental
Indenture dated as of January 1, 1980, a Third Supplemental
Indenture dated as of June 15, 1981, a Fourth Supplemental
Indenture dated as of June 1, 1984, a Fifth Supplemental
Indenture dated as of December 1, 1984, a Sixth Supplemental
Indenture dated as of May 1, 1985, a Seventh Supplemental
Indenture dated as of June 15, 1985, an Eighth Supplemental
Indenture dated as of May 1, 1986, a Ninth Supplemental Indenture
dated as of May 1, 1986, a Tenth Supplemental Indenture dated as
of September 1, 1986, an Eleventh Supplemental Indenture dated as
of September 1, 1986, a Twelfth Supplemental Indenture dated as
of September 1, 1986, a Thirteenth Supplemental Indenture dated
as of November 15, 1987, a Fourteenth Supplemental Indenture
dated as of December 1, 1987, a Fifteenth Supplemental Indenture
dated as of July 1, 1992, a Sixteenth Supplemental Indenture
dated as of October 1, 1992, a Seventeenth Supplemental Indenture
dated as of October 1, 1992, an Eighteenth Supplemental Indenture
dated as of April 1, 1993, and a Nineteenth Supplemental
Indenture dated as of April 1, 1994 and as the same may from time
to time hereafter be amended and supplemented in accordance with
its terms, being hereinafter called the "Indenture"), entered
into the Second Assignment of Availability Agreement, Consent and
Agreement dated as of June 30, 1977 (the "Second Assignment of
Availability Agreement") (substantially in the form of this
Assignment) to secure the First Series Bonds; (ii) the Company,
the System Operating Companies, and the Trustees, as trustees for
the holders of $98,500,000 aggregate principal amount of the
Company's First Mortgage Bonds, 12.50% Series due 2000 (the
"Second Series Bonds") issued under the Mortgage, as supplemented
by a Second Supplemental Indenture, dated as of January 1, 1980
between the Company and the Trustees, entered into the Third
Assignment of Availability Agreement, Consent and Agreement dated
as of January 1, 1980 (the "Third Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Second Series Bonds; (iii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Assignment of
Availability Agreement, Consent and Agreement dated as of
December 1, 1984 (the "Eleventh Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Third Series Bonds; (iv) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 15.375% Series due 2000 (the "Fourth Series
Bonds") issued under the Mortgage, as supplemented by a Sixth
Supplemental Indenture, dated as of May 1, 1985 between the
Company and the Trustees, entered into the Thirteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1985 (the "Thirteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Fourth Series Bonds; (v) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Sixteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Seventh Series Bonds; (vi) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 9 7/8% Series due 1991 (the "Eighth Series
Bonds") issued under the Mortgage, as supplemented by a Tenth
Supplemental Indenture, dated as of September 1, 1986 between the
Company and the Trustees, entered into the Seventeenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Seventeenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eighth Series Bonds; (vii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $250,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 10 1/2% Series due 1996 (the "Ninth Series
Bonds") issued under the Mortgage, as supplemented by an Eleventh
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Eighteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Eighteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Ninth Series Bonds; (viii) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11 3/8% Series due 2016 (the "Tenth Series
Bonds") issued under the Mortgage, as supplemented by a Twelfth
Supplemental Indenture dated as of September 1, 1986 between the
Company and the Trustees, entered into the Nineteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
September 1, 1986 (the "Nineteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Tenth Series Bonds; (ix) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth Assignment
of Availability Agreement, Consent and Agreement dated as of
November 15, 1987 (the "Twentieth Assignment of Availability
Agreement") (also substantially in the form of this Assignment)
to secure the Eleventh Series Bonds; (x) the Company, the System
Operating Companies and the Trustees, as trustees for the holders
of $100,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14.34% Series due 1992 (the "Twelfth Series
Bonds") issued under the Mortgage, as supplemented by a
Fourteenth Supplemental Indenture dated as of December 1, 1987
between the Company and the Trustees, entered into the
Twenty-first Assignment of Availability Agreement, Consent and
Agreement dated as of December 1, 1987 (the "Twenty-first
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Twelfth Series Bonds; (xi)
the Company, the System Operating Companies and the Trustees, as
trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Assignment of Availability Agreement, Consent
and Agreement dated as of July 1, 1992 (the "Twenty-fourth
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Thirteenth Series Bonds;
(xii) the Company, the System Operating Companies and the
Trustees, as trustees for the holders of $105,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 6.12%
Series due 1995 (the "Fourteenth Series Bonds") issued under the
Mortgage, as supplemented by a Sixteenth Supplemental Indenture
dated as of October 1, 1992 between the Company and the Trustees,
entered into the Twenty-fifth Assignment of Availability
Agreement, Consent and Agreement dated as of October 1, 1992 (the
"Twenty-fifth Assignment of Availability Agreement") (also
substantially in the form of this Assignment) to secure the
Fourteenth Series Bonds; (xiii) the Company, the System Operating
Companies and the Trustees, as trustees for the holders of
$70,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 8.25% Series due 2002 (the "Fifteenth Series
Bonds") issued under the Mortgage, as supplemented by a
Seventeenth Supplemental Indenture dated as of October 1, 1992
between the Company and the Trustees, entered into a Twenty-sixth
Assignment of Availability Agreement, Consent and Agreement dated
as of October 1, 1992 (the "Twenty-sixth Assignment of
Availability Agreement") (also substantially in the form of this
Assignment) to secure the Fifteenth Series Bonds; (xiv) the
Company, the System Operating Companies and the Trustees, as
trustees for the holders of $60,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 6% Series due 1998
(the "Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
a Twenty-seventh Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1993 (the "Twenty-seventh
Assignment of Availability Agreement") (also substantially in the
form of this Assignment) to secure the Sixteenth Series Bonds;
and (xv) Entergy, the Company and the Trustees, as trustees for
the holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7-5/8% series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Assignment of Availability Agreement, Consent
and Agreement dated as of April 1, 1994 (the "Twenty-ninth
Assignment of Availability Agreement") (also substantially in the
form of this Agreement) to secure the Seventeenth Series Bonds.
D. The Original Availability Agreement has been
amended by the First Amendment thereto dated as of June 30, 1977,
the Second Amendment thereto dated June 15, 1981, the Third
Amendment thereto dated June 28, 1984 and the Fourth Amendment
thereto dated as of June 1, 1989 (the Original Availability
Agreement, as so amended and as it may be further amended and
supplemented, is hereinafter referred to as the "Availability
Agreement").
E. Unit No. 1 and Unit No. 2 of the Project have been
designated by the Company and the System Operating Companies as
being subject to the Availability Agreement and as being System
Energy Generating Units (as defined in the Availability
Agreement) thereunder.
F. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent"), and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Assignment of Availability Agreement, Consent and
Agreement (substantially in the form of this Assignment) dated as
of February 5, 1982 between the Company, the System Operating
Companies and the Eurodollar Agent (the "Sixth Assignment of
Availability Agreement"), the Company assigned to the Eurodollar
Agent (for the benefit of said banks), as collateral security for
the above loans, certain of the Company's rights under the
Availability Agreement. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment) dated as of February 18, 1983
between the Company, the System Operating Companies and the
Eurodollar Agent (the "Seventh Assignment of Availability
Agreement"), the Company assigned to the Eurodollar Agent (for
the benefit of the Eurodollar Banks), as collateral security for
such loans, certain of the Company's rights under the
Availability Agreement.
G. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement"),
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1983
between the Company, the System Operating Companies, the Bank and
Deposit Guaranty National Bank, as trustee (the "Ninth Assignment
of Availability Agreement"), the Company assigned to the Bank and
Deposit Guaranty National Bank, as trustee, as collateral
security for the Company's obligations under the Series A
Reimbursement Agreement and the Series A Bonds, certain of the
Company's rights under the Availability Agreement.
H. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement"), which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Assignment of Availability Agreement,
Consent and Agreement (also substantially in the form of this
Assignment), dated as of June 1, 1984 between the Company, the
System Operating Companies, the Bank and Deposit Guaranty
National Bank, as trustee (the "Tenth Assignment of Availability
Agreement"), the Company assigned to the Bank and Deposit
Guaranty National Bank, as trustee, as collateral security for
the Company's obligations under the Series B Reimbursement
Agreement and the Series B Bonds, certain of the Company's rights
under the Availability Agreement.
I. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks"), were parties to a
letter of credit and reimbursement agreement dated as of
December 1, 1984 (the "Series C Reimbursement Agreement") which
provided, among other things, for the issuance by the Banks for
the account of the Company of an irrevocable transferable letter
of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series C (the "Series C Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1984 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Twelfth Assignment of
Availability Agreement, Consent and Agreement (also substantially
in the form of this Assignment), dated as of December 1, 1984
between the Company, the System Operating Companies, the Banks
and Deposit Guaranty National Bank, as trustee (the "Twelfth
Assignment of Availability Agreement"), the Company assigned to
the Banks and Deposit Guaranty National Bank, as trustee, as
collateral security for the Company's obligations under the
Series C Reimbursement Agreement and the Series C Bonds, certain
of the Company's rights under the Availability Agreement.
J. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$47,208,334 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series A (the "Fifth Series
Bonds") issued under the Mortgage, as supplemented by a Seventh
Supplemental Indenture dated as of June 15, 1985 between the
Company and the Trustees, entered into the Fourteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
June 15, 1985 (the "Fourteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (the
"Series D Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of June 15, 1985 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fourteenth Assignment of Availability Agreement, the Company
assigned to the Trustees and Deposit Guaranty National Bank, as
collateral security for the Company's obligations under the
Series D Bonds, certain of the Company's rights under the
Availability Agreement.
K. The Company, the System Operating Companies, the
Trustees and Deposit Guaranty National Bank, as holder of
$95,643,750 aggregate principal amount of the Company's First
Mortgage Bonds, Pollution Control Series B (the "Sixth Series
Bonds") issued under the Mortgage, as supplemented by an Eighth
Supplemental Indenture dated as of May 1, 1986 between the
Company and the Trustees, entered into the Fifteenth Assignment
of Availability Agreement, Consent and Agreement dated as of
May 1, 1986 (the "Fifteenth Assignment of Availability
Agreement") (also substantially in the form of this Assignment).
The Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) Series E (the
"Series E Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of May 1, 1986 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fifteenth Assignment of Availability Agreement, the Company
assigned to the Trustees and Deposit Guaranty National Bank, as
collateral security for the Company's obligations under the
Series E Bonds, certain of the Company's rights under the
Availability Agreement.
L. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor)(collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto each
dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein (the "1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOC. Pursuant to the Twenty-second
Assignment of Availability Agreement, Consent and Agreement
(substantially in the form of this Assignment), dated as of
December 1, 1988 (the "Twenty-second Assignment of Availability
Agreement"), the Company assigned to Chemical Bank (the
"Administrating Bank"), as collateral security for the Company's
obligations under the Reimbursement Agreement, certain of the
Company's rights under the Availability Agreement.
M. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-third Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of January 11, 1991
("Twenty-third Assignment of Availability Agreement") in
connection with the execution and delivery of the First Amendment
to Reimbursement Agreement dated as of January 11, 1991 (the
"First Amendment to Reimbursement Agreement") (the Reimbursement
Agreement, as amended by the First Amendment to Reimbursement
Agreement, is herein called the First Amended Reimbursement
Agreement") that provided, among other things, (i) for the
issuance by The Bank of Tokyo, Ltd., Los Angeles Agency (the
"Funding Bank"), for the account of the Company, of irrevocable
transferable letters of credit ("1991 LOCs") to the Owner
Participants to secure certain obligations of the Company to the
Owner Participants, such 1991 LOCs to be substantially in the
form of Exhibit A to the First Amended Reimbursement Agreement,
with maximum amounts of $116,601,440 and $29,150,360; (ii) for
the reimbursement to the Funding Bank by the banks named in the
First Amended Reimbursement Agreement (the "Participating Banks")
for all drafts paid by the Funding Bank under any 1991 LOC; and
(iii) for the reimbursement by the Company to the Funding Bank
for the benefit of the Participating Banks of sums equal to all
drafts paid by the Funding Bank under any 1991 LOC.
N. The Company, the System Operating Companies and
Chemical Bank entered into the Twenty-eighth Assignment of
Availability Agreement, Consent and Agreement (substantially in
the form of this Assignment), dated as of December 17, 1993
("Twenty-eighth Assignment of Availability Agreement") in
connection with the execution and delivery of the Second
Amendment to Reimbursement Agreement, dated as of December 17,
1993 ("Second Amendment to Reimbursement Agreement")(the First
Amended Reimbursement Agreement, as amended by the Second
Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
O. The Company seeks to refinance that part of the
capital costs related to the Project heretofore financed with the
proceeds of the Series ___ Bonds and, to that end, (i) the
Company has entered into [an Installment Sale Agreement], dated
as of ______________ (the "[Installment Sale Agreement]"),
between Claiborne County, Mississippi, a public body, politic and
corporate and a political subdivision of the State of Mississippi
(the "Issuer") and the Company, [pursuant to which the Issuer
proposes to acquire from, and reconvey to, the Company a project
consisting of the Company's interest in certain pollution control
facilities relating to the Project]; (ii) the Issuer proposes to
refinance a portion of the cost of acquiring, improving and
installing [such] [certain] pollution control facilities by the
issuance, pursuant to a trust indenture dated as of _____________
(the "Trust Indenture") naming Deposit Guaranty National Bank as
trustee of up to $______________ aggregate principal amount of
the Issuer's Pollution Control Revenue Refunding Bonds (System
Energy Resources, Inc. Project) Series __ (the "Bonds") to
various purchasers; and to evidence and secure, in part, the
obligation of the Company concerning the payment of the
principal, premium, if any, and interest on the Bonds, the
Company has provided for the issuance of $______________
aggregate principal amount of First Mortgage Bonds, due _____
(the "First Mortgage Bonds") which are equal to the principal
amount of the Bonds and [_____] twelfths ([___]/12) of the amount
of the [maximum] annual interest requirement of the Bonds at
their [maximum] stated rate. The First Mortgage Bonds will
mature upon the stated maturity date of the Bonds. The First
Mortgage Bonds are to be issued under and secured pursuant to the
Indenture as heretofore supplemented and as further supplemented
by a _________ Supplemental Indenture, dated as of _____________
(the "______ Supplemental Indenture"). The First Mortgage Bonds
will be registered in the name of the Issuer Trustee as the sole
holder of the First Mortgage Bonds.
P. The Company, by this instrument, wishes to (i)
provide for the assignment by the Company to the Issuer Trustee
for the benefit of the holders of the Bonds and the Trustees, for
the benefit of the Issuer Trustee as sole holder of the First
Mortgage Bonds, of certain of the Company's rights under the
Availability Agreement, and (ii) create enforceable rights
hereunder in the Issuer Trustee and the Trustees, all as
hereunder set forth.
Q. The System Operating Companies are willing to, and
by this instrument do, supplement their undertakings under the
Availability Agreement in the same manner as in the Assignments
of Availability Agreement.
R. The Company, Entergy and the System Operating
Companies have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-____, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Assignment and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of execution and delivery hereof.
S. All things necessary to make this Assignment the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
I.
Security Assignment and Agreement
1 Assignment and Creation of Security Interest. As security
for (i) the Bonds, (ii) upon the acceleration of the Bonds
following an occurrence of an Event of Default, as defined in the
Trust Indenture, the Company's obligation to redeem the First
Mortgage Bonds, and (iii) the due and punctual payment of any
other amounts which may become payable by the Company in
connection with the First Mortgage Bonds and the Bonds, together
in each case with all costs of collection thereof (all such
amounts referred to in the foregoing clauses (i), (ii) and (iii)
being hereinafter collectively referred to as "Obligations
Secured Hereby"), the Company hereby assigns to the Issuer
Trustee and the Trustees, and creates a security interest in
favor of the Issuer Trustee, for the benefit of the holders of
the Bonds, and the Trustees, for the benefit of the Issuer
Trustee as sole holder of the First Mortgage Bonds, in all of the
Company's rights to receive all moneys paid or to be paid to the
Company pursuant to Section 4 of the Availability Agreement or
advances pursuant to Section 2.2(b) hereof, but only to the
extent that such payments or advances are attributable to
payments or advances with respect to Unit No. 1 or Unit No. 2,
and all other claims, rights (but not obligations or duties),
powers, privileges, interests and remedies of the Company,
whether arising under the Availability Agreement or this
Assignment or by statute or in law or in equity or otherwise,
resulting from any failure by any System Operating Company to
perform its obligations under the Availability Agreement or this
Assignment, but only to the extent that such claims, rights,
powers, privileges, interests and remedies relate to Unit No. 1
and Unit No. 2, all to the extent, but only to the extent,
required for the payment when due and payable of Obligations
Secured Hereby, together in each case with full power and
authority, in the name of the Issuer Trustee, the Trustees (or
either of the Trustees), or the Company as assignor, or
otherwise, to demand payment of, enforce, collect, receive and
receipt for any and all of the foregoing (the rights, claims,
powers, privileges, interests and remedies referred to above
being hereinafter sometimes called the "Collateral").
2 Other Agreements.
(a) The Company has not and will not assign the rights
assigned in Section 1.1 as security for any indebtedness other
than the Obligations Secured Hereby, except as recited and
provided in paragraph (b) of this Section 1.2.
(b) The Company has secured its Indebtedness for Borrowed
Money represented by (i) loans made by certain banks referred to
in Whereas Clause B hereof by the First, Fourth, Fifth and Eighth
Assignments of Availability Agreement, respectively, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, the Sixteenth Series Bonds, and the
Seventeenth Series Bonds, as referred to in Whereas Clause C
hereof by the Second, Third, Eleventh, Thirteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh and
Twenty-ninth Assignments of Availability Agreement, respectively,
(iii) loans made by certain banks as referred to in Whereas
Clause F hereof by the Sixth and Seventh Assignments of
Availability Agreement, respectively, (iv) the obligations under
the Series A Reimbursement Agreement referred to in Whereas
Clause G hereof by the Ninth Assignment of Availability
Agreement, (v) the obligations under the Series B Reimbursement
Agreement as referred to in Whereas Clause H hereof by the Tenth
Assignment of Availability Agreement, (vi) the obligations under
the Series C Reimbursement Agreement as referred to in Whereas
Clause I hereof by the Twelfth Assignment of Availability
Agreement, (vii) the Fifth Series Bonds as referred to in Whereas
Clause J hereof by the Fourteenth Assignment of Availability
Agreement, (viii) the Sixth Series Bonds as referred to in
Whereas Clause K hereof by the Fifteenth Assignment of
Availability Agreement, (ix) the obligations under the
Reimbursement Agreement as referred to in Whereas Clause L hereof
by the Twenty-second Assignment of Availability Agreement, (x)
the obligations under the First Amended Reimbursement Agreement
as referred to in Whereas Clause M hereof by the Twenty-third
Assignment of Availability Agreement, and (xi) the obligations
under the Second Amended Reimbursement Agreement, as referred to
in Whereas Clause N hereof by the Twenty-eighth Assignment of
Availability Agreement, and shall be entitled to secure the
interest and premium, if any, on, and the principal of, other
Indebtedness for Borrowed Money of the Company issued by the
Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, Indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness (including such Indebtedness now outstanding) issued
for such purpose, the incurrence of which Indebtedness is at the
time permitted by the Indenture (herein, together with such
Indebtedness now outstanding, called "Additional Indebtedness"),
by entering into an assignment of availability agreement, consent
and agreement including, without limitation, the First through
____________ Assignments of Availability Agreement (each being
hereinafter called an "Additional Assignment") with the holders
of such Additional Indebtedness or representatives of or trustees
for such holders, or both, as the case may be (herein called an
"Additional Assignee"). Each Additional Assignment hereafter
entered into shall be substantially in the form of this
Assignment, except that there shall be substituted in such
Additional Assignment appropriate references to the Additional
Indebtedness secured thereby, the applicable Additional Assignee
and the agreement or instrument under which such Additional
Indebtedness is issued in lieu of the references herein to the
Bonds and the First Mortgage Bonds, the Issuer Trustee and the
Trustees and the Trust Indenture and the Indenture, respectively,
and such Additional Assignment may contain such other provisions
as are not inconsistent with this Assignment and do not adversely
affect the rights hereunder of the Issuer Trustee or the Trustees
(or either of the Trustees).
(c) Notwithstanding any provision of this Assignment to the
contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the Issuer
Trustee or the Trustees, or any provision of or filing or
recording under the Uniform Commercial Code or any other
applicable law of any jurisdiction, the Issuer Trustee and the
Trustees agree that the claims of the Issuer Trustee and the
Trustees hereunder with respect to the Availability Agreement and
any security interest, pledge or lien in favor of the Issuer
Trustee and the Trustees now or hereafter existing in and to the
Collateral shall rank pari passu with the claims of each
Additional Assignee under the corresponding provisions of the
Additional Assignment to which it is a party with respect to the
Availability Agreement and any security interest, pledge or lien
in favor of such Additional Assignee under such Additional
Assignment now or hereafter existing in and to the Collateral,
irrespective of the time or times at which prior, concurrent or
subsequent Additional Assignments are entered into in accordance
with Section 1.2(b) hereof.
3 Payments to the Issuer Trustee and the Corporate Trustee.
The Company agrees that, if and whenever it shall make a demand
to a System Operating Company for any payment pursuant to Section
4 of the Availability Agreement or advances pursuant to Section
2.2(b) hereof with respect to Unit No. 1 or Unit No. 2, it will
separately identify the respective portions of such payment or
advance, if any, required for (i) the payment of Obligations
Secured Hereby and (ii) the payment of any other amounts then due
and payable in respect of Additional Indebtedness and instruct
such System Operating Company (subject to the provisions of
Section 1.4 hereof) to pay or cause to be paid the amount so
identified as required for the payment of Obligations Secured
Hereby directly to the Issuer Trustee or, if all amounts owed
under the [Installment Sale Agreement] shall have been paid, to
the Corporate Trustee. Any payments made by any System Operating
Company pursuant to Section 4 of the Availability Agreement or
advances pursuant to Section 2.2(b) hereof with respect to Unit
No. 1 or Unit No. 2 shall, to the extent necessary to satisfy in
full the assignment set forth in Section 1.1 of this Assignment
and the corresponding assignments set forth in the Additional
Assignments, be made pro rata in proportion to the respective
amounts secured by, and then due and owing under, such
assignments.
4 Payments to the Company. Notwithstanding the provisions
of Sections 1.1 and 1.3, unless and until the Issuer Trustee or
the Corporate Trustee shall have given written notice to the
System Operating Companies of the occurrence and continuance of
any Event of Default (as defined in the Trust Indenture) or any
Default (as defined in the Indenture), all moneys paid or to be
paid to the Company pursuant to Section 4 of the Availability
Agreement or advanced pursuant to Section 2.2(b) hereof with
respect to Unit No. 1 and Unit No. 2 shall be paid or advanced
directly to the Company and the Company need not separately
identify the respective portions of payments or advances as
provided in Section 1.3 hereof, provided that notice as to the
amount of any such payments or advances shall be given by the
Company to the Issuer Trustee and the Corporate Trustee
simultaneously with the demand by the Company for any such
payments or advances. If the Issuer Trustee or the Corporate
Trustee shall have duly notified the System Operating Companies
of the occurrence of any such Event of Default or Default, such
payments or advances shall be made in the manner and in the
amounts specified in Section 1.3 hereof until the Issuer Trustee
or the Corporate Trustee shall by further notice to the System
Operating Companies give permission that all such payments or
advances may be made again to the Company, such permission being
subject to revocation by a subsequent notice pursuant to the
first sentence of this Section 1.4. The Issuer Trustee or the
Corporate Trustee shall give such permission if no such Event of
Default or Default continues to exist.
5 Definitions. For the purposes of this Assignment, the
following terms shall have the following meanings:
(a) the term "Indebtedness for Borrowed Money" shall mean the
principal amount of all indebtedness for borrowed money, secured
or unsecured, of the Company then outstanding and shall include,
without limitation, the principal amount of all bonds issued by a
governmental or industrial development agency or authority in
connection with an industrial development revenue bond financing
of pollution control facilities constituting part of the Project;
and
(b) the term "Subordinated Indebtedness of the Company" shall
mean indebtedness marked on the books of the Company as
subordinated and junior in right of payment to the Obligations
Secured Hereby (as defined in Section 1.1 hereof) to the extent
and in the manner set forth below:
(i) if there shall occur an Event of Default (as defined in
the Trust Indenture) or a Default (as defined in the Indenture),
then so long as such Event of Default or Default shall be
continuing and shall not have been cured or waived, or unless and
until all the Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt, no payment
of principal and premium, if any, or interest shall be made upon
Subordinated Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership
proceedings in connection therewith, relative to the Company or
its creditors or its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy proceedings, then the Obligations Secured Hereby shall
first be paid in full in money or money's worth at the time of
receipt, or payment thereof shall have been provided for, before
any payment on account of principal, premium, if any, or interest
is made upon Subordinated Indebtedness of the Company.
II.
Consent to Assignment by the System Operating
Companies and Other Agreements
1 Consent to Assignment by the System Operating Companies.
(a) Each System Operating Company hereby consents to the
assignment under Article I and agrees with the Issuer Trustee and
the Corporate Trustee to make payments or advances to the Issuer
Trustee and the Corporate Trustee in the amounts and in the
manner specified in Section 1.3 at the Issuer Trustee's or the
Corporate Trustee's address as set forth in Section 6.1 hereof.
(b) Subject to the provisions of Section 4 of the Availability
Agreement and Section 2.2(g) hereof, each System Operating
Company agrees that all payments or advances made to the Issuer
Trustee, the Corporate Trustee or to the Company as contemplated
by Sections 1.3 and 1.4 hereof shall be final as between such
System Operating Company and the Issuer Trustee, the Corporate
Trustee or the Company, as the case may be, and that it will not
seek to recover from the Issuer Trustee or the Corporate Trustee
for any reason whatsoever any moneys paid or advanced to the
Issuer Trustee or the Corporate Trustee by virtue of this
Assignment, but the finality of any such payment or advance shall
not prevent the recovery of any overpayments or mistaken payments
or excess advances or mistaken advances which may be made by such
System Operating Company unless an Event of Default (as defined
in the Trust Indenture) or a Default (as defined in the
Indenture) has occurred and is continuing, in which case any such
overpayment or mistaken payment or excess advances or mistaken
advances shall not be recoverable but shall constitute
Subordinated Indebtedness of the Company to such System Operating
Company.
2 Other Agreements. Anything in the Availability Agreement
to the contrary notwithstanding, it is hereby agreed as follows:
(a) Regardless of whether any person or persons (other than
the System Operating Companies) shall become a Party or Parties
(as such terms are defined in the Availability Agreement) to the
Availability Agreement, the System Operating Companies shall at
all times be obligated to make the payments required pursuant to
Section 4 of the Availability Agreement and to make advances
pursuant to Section 2.2(b) hereof with respect to Unit No. 1 and
Unit No. 2 to the same extent as if the System Operating
Companies were the only Parties to the Availability Agreement,
except to the extent and only to the extent that such payments or
advances are actually made by such person or persons. In the
event that any such person shall become a Party to the
Availability Agreement, the Company and the System Operating
Companies shall cause such person, at the time when such person
becomes a Party to the Availability Agreement, to consent by
written instrument to the terms and provisions of this
Assignment, and thereupon such person shall be bound by all of
the terms and provisions of this Assignment (other than the
provisions of the preceding sentence) to the same extent as if
named a System Operating Company herein. A copy of such written
instrument, in form and substance satisfactory to the Issuer
Trustee and the Corporate Trustee, shall promptly be delivered to
the Issuer Trustee and the Corporate Trustee together with an
opinion of counsel to the effect that such instrument complies
with the requirements hereof and constitutes a valid, legally
binding obligation of such person.
(b) In the event and to the extent that any action by any
governmental regulatory authority, including, without limitation,
the Federal Energy Regulatory Commission or any successor
thereto, shall have the effect of prohibiting the System
Operating Companies from making any payments which would
otherwise be required pursuant to Section 4 of the Availability
Agreement (as supplemented hereby) with respect to Unit No. 1 and
Unit No. 2, the System Operating Companies shall make advances to
the Company at the same time, and in the same amounts as such
prohibited payments and all such advances shall constitute
Subordinated Indebtedness of the Company.
(c) Each System Operating Company agrees that (i) all
Indebtedness for Borrowed Money of the Company to such System
Operating Company and all amounts paid by such System Operating
Company pursuant to Section 4 of the Availability Agreement or
advanced pursuant to Section 2.2(b) hereof shall constitute
Subordinated Indebtedness of the Company and (ii) no such
Subordinated Indebtedness of the Company shall be transferred or
assigned (including by way of security) to any person (other than
to a successor of such System Operating Company by way of merger,
consolidation or the acquisition by such person of all or
substantially all of such System Operating Company's assets). The
Company agrees that it shall duly record all Subordinated
Indebtedness of the Company as such on its books.
(d) The obligations of each System Operating Company to make
the payments to the Company pursuant to the provisions of Section
4 of the Availability Agreement and the advances pursuant to
Section 2.2(b) hereof with respect to Unit No. 1 and Unit No. 2
having heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required other than, with respect to the payments pursuant to the
provisions of Section 4 of the Availability Agreement,
appropriate orders, or the taking of other action, by the Federal
Energy Regulatory Commission or any successor thereto as to
specific terms and provisions under which power and energy
associated therewith available at the Project shall be made
available by the Company to the System Operating Companies and
pursuant to which the System Operating Companies shall agree to
pay the Company for the right to receive such power and the
energy associated therewith), each System Operating Company
agrees that its duty to perform such obligations shall be
absolute and unconditional, (a) whether or not such System
Operating Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit such System Operating Company to perform its other duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement (as defined in the Availability
Agreement), (b) whether or not the Company shall have received
all authorizations of governmental regulatory authorities
necessary at the time to permit the Company to perform its duties
and obligations hereunder, under the Availability Agreement or
under the System Agreement, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations
hereunder, under the Availability Agreement or under the System
Agreement, (e) whether or not the System Agreement shall, from
time to time, be amended, modified or supplemented or shall be
canceled or terminated or such System Operating Company shall
have withdrawn therefrom, (f) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to such System Operating
Company), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (g) whether or not the Company shall be
solvent, (h) whether or not the Company or such System Operating
Company shall continue to be subsidiary companies of Entergy (as
said term is defined in Section 2(a)(8) of the Public Utility
Holding Company Act of 1935), (i) regardless of any event of
force majeure, and (j) regardless of any other circumstance,
happening, condition or event whatsoever, whether or not similar
to any of the foregoing.
(e) In the event that Entergy shall cease to own at least a
majority of the common stock of any System Operating Company, the
obligations of such System Operating Company hereunder and under
the Availability Agreement shall not be increased by an amendment
to or modification of the terms and provisions of the Indenture,
the Bonds, the ____________ Supplemental Indenture or the First
Mortgage Bonds unless such System Operating Company shall have
consented in writing to such amendment or modification.
(f) The obligations of each System Operating Company under
Section 4 of the Availability Agreement and Section 2.2(b) hereof
to make the payments or advances specified therein or herein with
respect to Unit No. 1 and Unit No. 2 to the Company shall not be
subject to any abatement, reduction, limitation, impairment,
termination, set-off, defense, counterclaim or recoupment
whatsoever or any right to any thereof (including, but not
limited to, abatements, reductions, limitations, impairments,
terminations, set-offs, defenses, counterclaims and recoupments
for or on account of any past, present or future indebtedness of
the Company to such System Operating Company or any claim by such
System Operating Company against the Company, whether or not
arising hereunder, under the Availability Agreement or under the
System Agreement and whether or not arising out of any action or
nonaction on the part of the Company, the Issuer Trustee or the
Trustees (or either of them), including any disposition of the
Project or any part thereof pursuant to the Indenture,
requirements of governmental authorities, actions of judicial
receivers or trustees or otherwise and whether or not arising
from willful or negligent acts or omissions). The foregoing,
however, shall not, subject to the provisions of paragraph (c) of
this Section 2.2, affect in any other way any rights and remedies
of such System Operating Company with respect to any amounts owed
to such System Operating Company by the Company or any such claim
by such System Operating Company against the Company. The
obligations and liabilities of each System Operating Company
hereunder or under the Availability Agreement shall not be
released, discharged or in any way affected by any
reorganization, arrangement, compromise, composition or plan
affecting the Company or any change, waiver, extension,
indulgence or other action or omission in respect of any
indebtedness or obligation of the Company or such System
Operating Company, whether or not the Company or such System
Operating Company shall have had any notice or knowledge of any
of the foregoing. Neither failure nor delay by the Company, the
Issuer Trustee or the Trustees (or either of them), to exercise
any right or remedy provided herein or by statute or at law or in
equity shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude any other
or further exercise thereof, or the exercise of any other right
or remedy. Each System Operating Company also hereby irrevocably
waives, to the extent that it may do so under applicable law, any
defense based on the adequacy of a remedy at law which may be
asserted as a bar to the remedy of specific performance in any
action brought against such System Operating Company for specific
performance of this Assignment or the Availability Agreement by
the Company, by the Issuer Trustee, by the Trustees (or either of
them), or for their benefit by a receiver or trustee appointed
for the Company or in respect of all or a substantial part of the
Company's assets under the bankruptcy or insolvency law of any
jurisdiction to which the Company is or its assets are subject.
Anything in this Section 2.2(f) to the contrary notwithstanding,
no System Operating Company shall be precluded from asserting as
a defense against any claim made against such System Operating
Company upon any of its obligations hereunder and under the
Availability Agreement that it has fully performed such
obligations in accordance with the terms of this Assignment and
the Availability Agreement.
(g) Each System Operating Company shall, subject to the
provisions of Section 2.2(c) hereof, be proportionately
subrogated to all rights of the Issuer Trustee and the Trustees
against the Company in respect of any amounts paid or advanced by
such System Operating Company pursuant to the provisions of this
Assignment and the Availability Agreement and applied to the
payment of the Obligations Secured Hereby. The Issuer Trustee
and the Trustees agree that they will not deal with the Company
in such a manner as to prejudice such rights of any System
Operating Company.
III.
Term
This Assignment shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of the
System Operating Companies and the Company set forth in this
Assignment are exclusively for the benefit of, and may be
enforced only by, the Issuer Trustee, the Trustees (or either of
them), or for their benefit by a receiver or trustee for the
Company or in respect of all or a substantial part of its assets
under the bankruptcy or insolvency law of any jurisdiction to
which the Company is or its assets are subject.
IV.
Assignment
Neither this Assignment nor the Availability Agreement
nor any interest herein or therein may be assigned, transferred
or encumbered by any of the parties hereto or thereto, except
transfer or assignment by the Issuer Trustee and the Trustees (or
either of them) to their respective successors in accordance with
Section __ of the Trust Indenture and Article XVII of the
Indenture, except as otherwise provided in Article I hereof and
except that
(i) in the event that any System Operating Company shall
consolidate with or merge with or into another corporation or
shall transfer to another corporation or other person all or
substantially all of its assets, this Assignment and the
Availability Agreement shall be transferred by such System
Operating Company to and shall be binding upon the corporation
resulting from such consolidation or merger or the corporation or
other person to which such transfer is made and, as a condition
to such consolidation, merger or other transfer, such corporation
or other person shall deliver to the Company, the Issuer Trustee
and the Corporate Trustee a written assumption, in form and
substance satisfactory to the Issuer Trustee and the Corporate
Trustee, of such System Operating Company's obligations and
liabilities under this Assignment and the Availability Agreement
and an opinion of counsel to the effect that such instrument
complies with the requirements hereof and thereof and constitutes
a valid, legally binding and enforceable obligation of such
corporation or other person; and
(ii) in the event that the Company shall consolidate with or
merge with or into another corporation or shall transfer to
another corporation or other person all or substantially all of
its assets, this Assignment and the Availability Agreement shall
be transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or the
corporation or other person to which such transfer is made and,
as a condition to such consolidation, merger or other transfer,
such corporation or other person shall deliver to the Issuer
Trustee and the Corporate Trustee a written assumption, in form
and substance satisfactory to the Issuer Trustee and the
Corporate Trustee, of the Company's obligations and liabilities
under this Assignment and the Availability Agreement and an
opinion of counsel to the effect that such instrument complies
with the requirements hereof and thereof and constitutes a valid,
legally binding and enforceable obligation of such corporation or
other person.
ARTICLE I.
V.
Amendments
1 Restrictions on Amendments. Neither this Assignment nor
the Availability Agreement may be amended, waived, modified,
discharged or otherwise changed orally. This Assignment and the
Availability Agreement may be amended, waived, modified,
discharged or otherwise changed only by a written instrument
which has been signed by all the parties hereto, in the case of
this Assignment, or by the persons specified in Section 11 of the
Availability Agreement, in the case of the Availability
Agreement, and which has been approved by the Issuer Trustee and
the Trustees or which is an amendment to the Availability
Agreement or this Assignment contemplated by Section ______ of
the Trust Indenture and Section _____ of the ______ Supplemental
Indenture and has, in accordance with the terms of said Section
______ of the Trust Indenture and Section ______ of the ________
Supplemental Indenture, been preconsented to by the Issuer
Trustee, as sole holder of the First Mortgage Bonds, and the
holders of the Bonds; provided that, certain amendments or
modifications to this Assignment must be approved by the holders
of a majority in aggregate principal amounts of the Bonds then
outstanding, as provided for in said Section ______ of the Trust
Indenture. The Trustees shall, at the request of the Issuer
Trustee, become a party to any instrument amending, waiving,
modifying, discharging or otherwise changing this Assignment.
2 The Issuer Trustee's and the Trustees' Execution. The
Issuer Trustee and the Trustees shall, at the request of the
Company, execute any instrument amending, waiving, modifying,
discharging or otherwise changing this Assignment, or any consent
to the execution of any instrument amending, waiving, modifying,
discharging or otherwise changing the Availability Agreement (a)
as to which the Issuer Trustee and the Trustees shall have
received an opinion of counsel to the effect that such instrument
has been duly authorized by each person executing the same and is
permitted by the provisions of Section 5.1 hereof and that this
Assignment, or the Availability Agreement, as the case may be, as
amended, waived, modified, discharged or otherwise changed by
such instrument, constitutes valid, legally binding and
enforceable obligations of the Company and each of the System
Operating Companies, and (b) which shall have been executed by
the Company and each of the System Operating Companies. The
Issuer Trustee and the Trustees (and each of the Trustees), shall
be fully protected in relying upon the aforesaid opinion.
VI.
Notices
1 Notices, etc., in Writing. All notices, consents,
requests and other documents authorized or permitted to be given
pursuant to this Assignment shall be given in writing and either
personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Arkansas Power & Light Company, to:
425 West Capitol Avenue
Little Rock, Arkansas 72201
Attention: President
If to Louisiana Power & Light Company, to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to Mississippi Power & Light Company, to:
308 East Pearl Street
Jackson, Mississippi 39201
Attention: President
If to New Orleans Public Service Inc., to:
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company of New York
114 West 47th Street
New York, New York 10036
If to the Issuer Trustee, to:
Deposit Guaranty National Bank
One Deposit Guaranty Place
Jackson, Mississippi 39201
Attention: Corporate Trust Department
with copies to each other party.
2 Delivery, etc. Notices, consents, requests and other
documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 6.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
VII.
Enforcement
1 Trust Indenture and Indenture Terms and Conditions. The
Issuer Trustee and the Trustees (and each of them) enter into and
accept this Assignment upon the terms and conditions set forth in
Article ____ of the Trust Indenture and Article XVII of the
Indenture, respectively, with the same force and effect as if
those terms and conditions were repeated at length herein and
made applicable to the Issuer Trustee and the Trustees (and each
of them) in respect of this Assignment and the trusts hereunder
and in respect of any action taken, suffered or omitted to be
taken by the Issuer Trustee or the Trustees (or either of them)
hereunder. Nothing in this Assignment shall affect any right or
remedy of the Company or any System Operating Company against the
Issuer Trustee or the Trustees (or either of them) (other than
those specifically waived herein), for breach or violation of any
of the obligations or duties of the Issuer Trustee and the
Trustees assumed or undertaken in this Assignment. Without
limiting the generality of the foregoing, the Issuer Trustee and
the Trustees (and each of them) assume no responsibility as to
the validity or enforceability hereof or for the correctness of
the recitals of fact contained herein or in the Availability
Agreement, which shall be taken as the statements,
representations and warranties of the Company and the System
Operating Companies.
2 Enforcement Action by Issuer Trustee. At any time the
Issuer Trustee upon the request of the holder or holders of not
less than 25% of matured (whether by stated maturity,
acceleration or otherwise) Bonds which have not been paid may
proceed, either in its own name and as Issuer Trustee or
otherwise, to protect and enforce the rights of the Issuer
Trustee and the holders of the Bonds and those of the Company
under this Assignment and the Availability Agreement by suit in
equity, action at law or other appropriate proceedings, whether
for the specific performance of any covenant or agreement
contained herein or in the Availability Agreement or otherwise,
and whether or not the Company shall have complied with any of
the provisions hereof or thereof or proceeded to take any action
authorized or permitted under applicable law provided that the
Issuer Trustee shall take no such action until 60 days after
receipt of such request during which time such default in payment
shall not be cured or no inconsistent direction has been given to
the Issuer Trustee by a majority of the holders of the unpaid
Bonds. Each and every remedy of the Issuer Trustee shall, to the
extent permitted by law, be cumulative and shall be in addition
to any other remedy given hereunder or under the Trust Indenture
or now or hereafter existing at law or in equity or by statute.
No holder of a Bond shall have any right directly to enforce the
security interests granted by this Assignment. The Trustees,
upon receiving notice from the Issuer Trustee that the Issuer
Trustee does not intend to take the action contemplated by this
Section 7.2, may proceed in their, its or his own name to protect
the rights of the Trustees (or either of them) and those of the
Company under this Assignment by suit in equity, action at law or
other appropriate proceedings, whether for the specific
performance of any covenant or agreement contained in this
agreement or otherwise, and whether or not the Company shall have
complied with any of the provisions hereof or proceeded to take
any action authorized or permitted under applicable law.
3 Attorney-in-Fact. The Company hereby constitutes the
Issuer Trustee and the Trustees (and each of them), with
authority to act without the other, its true and lawful attorney,
irrevocably, with full power (in such attorney's name or
otherwise), at any time when an Event of Default (as defined in
the Trust Indenture) or a Default (as defined in the Indenture)
has occurred and is continuing, to enforce any of the obligations
contained herein or in the Availability Agreement or to take any
action or institute any proceedings which to the Issuer Trustee
or the Trustees (or either of them) may seem necessary or
advisable in the premises.
VIII.
Severability
If any provision or provisions of this Assignment shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
IX.
Governing Law
This Assignment and, so long as this Assignment shall
be in effect, the Availability Agreement, shall be governed by
and construed in accordance with the laws of the State of New
York.
X.
Succession
Subject to Article IV hereof, this Assignment and the
Availability Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, but no assignment hereof, or of the Availability
Agreement, or of any right to any funds due or to become due
under this Assignment or the Availability Agreement shall in any
event relieve the Company or any System Operating Company of
their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ARKANSAS POWER & LIGHT COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
as Corporate Trustee
By:
Name:
Title:
GERARD F. GANEY, as
Individual Trustee
DEPOSIT GUARANTY NATIONAL BANK,
as Issuer Trustee
By:
Name:
Title:
Exhibit B-3(a)
___________ SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This ___________ Supplementary Capital Funds Agreement
and Assignment (hereinafter referred to as "this Agreement")
dated as of ________, ___, is made by and between Entergy
Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
and Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit 1 of the Grand Gulf Nuclear Electric
Station project ("Project") (more fully described in the
"Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers Hanover
Trust Company, as agent for certain banks (the "Domestic Agent"),
and said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto, dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981, as
amended by the First Amendment dated as of February 5, 1982 (as
so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees, as trustees for the holders of $400,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 9.25%
Series due 1989 (the "First Series Bonds") issued under a
Mortgage and Deed of Trust dated as of June 15, 1977, between the
Company and the Trustees (the "Mortgage"), as supplemented by a
First Supplemental Indenture dated as of June 15, 1977, between
the Company and the Trustees (the Mortgage, as so supplemented
and as supplemented by a Second Supplemental Indenture dated as
of January 1, 1980, a Third Supplemental Indenture dated as of
June 15, 1981, a Fourth Supplemental Indenture dated as of June
1, 1984, a Fifth Supplemental Indenture dated as of December 1,
1984, a Sixth Supplemental Indenture dated as of May 1, 1985, a
Seventh Supplemental Indenture dated as of June 15, 1985, an
Eighth Supplemental Indenture dated as of May 1, 1986, a Ninth
Supplemental Indenture dated as of May 1, 1986, a Tenth
Supplemental Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a Twelfth
Supplemental Indenture dated as of September 1, 1986, a
Thirteenth Supplemental Indenture dated as of November 15, 1987,
a Fourteenth Supplemental Indenture dated as of December 1, 1987,
a Fifteenth Supplemental Indenture dated as of July 1, 1992, a
Sixteenth Supplemental Indenture dated as of October 1, 1992, a
Seventeenth Supplemental Indenture dated as of October 1, 1992,
an Eighteenth Supplemental Indenture dated as of April 1, 1993,
and a Nineteenth Supplemental Indenture dated as of April 1, 1994
and as the same may from time to time hereafter be amended and
supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second Supplementary
Capital Funds Agreement and Assignment dated as of June 30, 1977
(the "Second Supplementary Capital Funds Agreement")
(substantially in the form of this Agreement) to secure the First
Series Bonds; (ii) Entergy, the Company, and the Trustees, as
trustees for the holders of $98,500,000 aggregate principal
amount of the Company's First Mortgage Bonds, 12.50% Series due
2000 (the "Second Series Bonds") issued under the Mortgage, as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980 between the Company and the Trustees, entered
into the Third Supplementary Capital Funds Agreement and
Assignment dated as of January 1, 1980 (the "Third Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Second Series Bonds; (iii) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Supplementary
Capital Funds Agreement and Assignment dated as of December 1,
1984 (the "Eleventh Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Third
Series Bonds; (iv) Entergy, the Company and the Trustees, as
trustees for the holders of $100,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 15.375% Series due
2000 (the "Fourth Series Bonds") issued under the Mortgage, as
supplemented by a Sixth Supplemental Indenture, dated as of May
1, 1985 between the Company and the Trustees, entered into the
Thirteenth Supplementary Capital Funds Agreement and Assignment
dated as of May 1, 1985 (the "Thirteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Fourth Series Bonds; (v) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth
Supplementary Capital Funds Agreement and Assignment dated as of
May 1, 1986 (the "Sixteenth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Seventh Series Bonds; (vi) Entergy, the Company, and
the Trustees, as trustees for the holders of $300,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
9 7/8% Series due 1991 (the "Eighth Series Bonds") issued under
the Mortgage, as supplemented by a Tenth Supplemental Indenture,
dated as of September 1, 1986 between the Company and the
Trustees, entered into the Seventeenth Supplementary Capital
Funds Agreement and Assignment dated as of September 1, 1986 (the
"Seventeenth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Eighth
Series Bonds; (vii) Entergy, the Company and the Trustees, as
trustees for the holders of $250,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 10 1/2% Series due
1996 (the "Ninth Series Bonds") issued under the Mortgage, as
supplemented by an Eleventh Supplemental Indenture, dated as of
September 1, 1986 between the Company and the Trustees, entered
into the Eighteenth Supplementary Capital Funds Agreement and
Assignment dated as of September 1, 1986 (the "Eighteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Ninth Series Bonds;
(viii) Entergy, the Company and the Trustees, as trustees for the
holders of $200,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 11 3/8% Series due 2016 (the
"Tenth Series Bonds") issued under the Mortgage, as supplemented
by a Twelfth Supplemental Indenture, dated as of September 1,
1986 between the Company and the Trustees, entered into the
Nineteenth Supplementary Capital Funds Agreement and Assignment
dated as of September 1, 1986 (the "Nineteenth Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Tenth Series Bonds; (ix) Entergy, the
Company and the Trustees, as trustees for the holders of
$200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth
Supplementary Capital Funds Agreement and Assignment dated as of
November 15, 1987 (the "Twentieth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Eleventh Series Bonds; (x) Entergy, the Company and
the Trustees, as trustees for the holders of $100,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
14.34% Series due 1992 (the "Twelfth Series Bonds") issued under
the Mortgage, as supplemented by a Fourteenth Supplemental
Indenture dated as of December 1, 1987 between the Company and
the Trustees, entered into the Twenty-first Supplementary Capital
Funds Agreement and Assignment dated as of December 1, 1987 (the
"Twenty-first Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Twelfth Series Bonds; (xi) Entergy, the Company and the Trustees,
as trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Supplementary Capital Funds Agreement and
Assignment dated as of July 1, 1992 (the "Twenty-fourth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Thirteenth Series
Bonds; (xii) Entergy, the Company and the Trustees, as trustees
for the holders of $105,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6.12% Series due 1995 (the
"Fourteenth Series Bonds") issued under the Mortgage, as
supplemented by a Sixteenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-fifth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-fifth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fourteenth Series
Bonds; (xiii) Entergy, the Company and the Trustees, as trustees
for the holders of $70,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.25% Series due 2002 (the
"Fifteenth Series Bonds") issued under the Mortgage, as
supplemented by a Seventeenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-sixth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-sixth
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Fifteenth Series Bonds;
(xiv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6% Series due 1998 (the
"Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
the Twenty-seventh Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1993 (the "Twenty-seventh
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Sixteenth Series Bonds; and
(xv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7-5/8% series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventeenth Series
Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of June 1,
1984 (the "Tenth Supplementary Capital Funds Agreement"), Entergy
and the Company further supplemented their undertakings under the
Capital Funds Agreement for the Bank and Deposit Guaranty
National Bank as trustee under the indenture relating to the
Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series A (the "Fifth Series Bonds") issued under the
Mortgage, as supplemented by a Seventh Supplemental Indenture
dated as of June 15, 1985 between the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) (the "Series D
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of June 15, 1985 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fourteenth
Supplementary Capital Funds Agreement, Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Trustees and Deposit Guaranty National Bank as
trustee under the indenture relating to the Series D Bonds.
J. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $95,643,750 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series B (the "Sixth Series Bonds") issued under the
Mortgage, as supplemented by an Eighth Supplemental Indenture
dated as of May 1, 1986 between the Company and the Trustees,
entered into the Fifteenth Supplementary Capital Funds Agreement
and Assignment dated as of May 1, 1986 (the "Fifteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixth Series Bonds. The
Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) (the "Series E
Bonds"), issued by Claiborne County, Mississippi pursuant to a
trust indenture dated as of May 1, 1986 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Fifteenth Supplementary
Capital Funds Agreement, Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Trustees and Deposit Guaranty National Bank as trustee
under the indenture relating to the Series E Bonds.
K. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor) (collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GGIB
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein ("1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOCs. Pursuant to the Twenty-second
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of
December 1, 1988 (the "Twenty-second Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the benefit of
Chemical Bank (the "Administrating Bank"), such 1988 Funding Bank
and the 1988 Participating Banks.
L. Entergy, the Company and Chemical Bank entered into
the Twenty-third Supplementary Capital Funds Agreement
(substantially in the form of this Agreement) dated as of
January 11, 1991 ("Twenty-third Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
First Amendment to Reimbursement Agreement, dated as of
January 11, 1991 ("First Amendment to Reimbursement Agreement")
(the Reimbursement Agreement, as amended by the First Amendment
to Reimbursement Agreement, is herein called the "First Amended
Reimbursement Agreement") that provided, among other things, (i)
for the issuance by The Bank of Tokyo, Ltd., Los Angeles Agency
(the "Funding Bank"), for the account of the Company, of
irrevocable transferable letters of credit ("1991 LOCs") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, such 1991 LOCs to be substantially in
the form of Exhibit A to the First Amended Reimbursement
Agreement with maximum amounts of $116,601,440 and $29,150,360;
(ii) for the reimbursement to the Funding Bank by the banks named
in the First Amended Reimbursement Agreement (the "Participating
Banks") for all drafts paid by the Funding Bank under any 1991
LOC; and (iii) for the reimbursement by the Company to the
Funding Bank for the benefit of the Participating Banks of sums
equal to all drafts paid by the Funding Bank under any 1991 LOC.
M. Entergy, the Company and Chemical Bank entered into
the Twenty-eighth Supplementary Capital Funds Agreement
(substantially in the form of this Agreement), dated as of
December 17, 1993 ("Twenty-eighth Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
Second Amendment to Reimbursement Agreement, dated as of
December 17, 1993 ("Second Amendment to Reimbursement Agreement")
(the First Amended Reimbursement Agreement, as amended by the
Second Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
N. The Company seeks to finance part of the capital
costs related to the Project with borrowed funds and, to that
end, the Company has entered into an Underwriting Agreement with
_________________, dated as of __________, ____, providing, among
other things, for the issue and sale by the Company of
$____________ aggregate principal amount of First Mortgage Bonds,
________% Series due ______ (the "____________ Series Bonds"), to
be issued under and secured pursuant to the Indenture as
heretofore supplemented and as further supplemented by a
___________ Supplemental Indenture dated as of _______, _____.
O. By written assumption dated as of December 31,
1993, Entergy Corporation, a Delaware corporation, assumed all
obligations and liabilities of Entergy Corporation, a Florida
corporation, under the Capital Funds Agreement, as supplemented,
pursuant to and as permitted by the terms of the supplements
thereto.
P. The Company and Entergy, by this instrument, wish
(i) to continue to supplement their undertakings under the
Capital Funds Agreement for the benefit of the Trustees and
(ii) to create enforceable rights hereunder in the Trustees as
hereinafter set forth.
Q. The Company, Entergy and certain other subsidiaries
of Entergy have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-_____, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Agreement and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of the execution and delivery hereof.
R. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the ___________ Series
Bonds. If at any time the Company shall require funds to pay the
interest (including, if and to the extent permitted by law,
interest on overdue principal, premium and interest) and premium,
if any, on, and the principal of, the ____________ Series Bonds
(whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and the expenses,
commitment fees, financing charges, trustees' fees and
administration expenses attributable to the ___________ Series
Bonds and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur a Default (as defined in
the Indenture) under the Indenture, then so long as such Default
shall be continuing and shall not have been cured or waived, or
unless and until all the Obligations Secured Hereby shall have
been paid in full in money or money's worth at the time of
receipt, no payment of principal and premium, if any, or interest
shall be made upon Subordinated Indebtedness of the Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar case or proceedings,
or any receivership proceedings in connection therewith, relative
to the Company or its creditors or its property, and in the event
of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then the Obligations
Secured Hereby shall first be paid in full in money or money's
worth at the time of receipt, or payment thereof shall have been
provided for, before any payment on account of principal,
premium, if any, or interest is made upon Subordinated
Indebtedness of the Company.
ARTICLE II.
Nature of the Obligations of
Entergy and the Company
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with respect to
the obligations of Entergy to make cash capital contributions to
the Company pursuant to the provisions of Sections 1.3 and 1.4
(as to which the SEC Orders are in full force and effect at the
date of execution and delivery of this Agreement), the
performance of the obligations of Entergy hereunder shall be
subject to the receipt and continued effectiveness of all
authorizations of governmental regulatory authorities necessary
at the time to permit Entergy at the time to perform its duties
and obligations then to be performed hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit Entergy
at the time to supply or cause to be supplied to the Company
capital pursuant to the provisions of Section 1.2 or to permit
Entergy at the time to acquire securities issued and sold to
Entergy by the Company.
(b) The performance of the obligations of the Company
hereunder shall be subject to the receipt and continued
effectiveness of all authorizations of governmental regulatory
authorities at the time necessary to permit the Company to
perform its duties and obligations hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental regulatory authorities at the time necessary to
permit the Company to operate the Project (or to have the Project
operated for it) to the extent the Project is then operable, and
to issue and to sell securities then to be issued and sold by the
Company to Entergy or to others for the purpose of securing
required capital.
(c) Entergy and the Company shall use their best
efforts to secure and maintain all such authorizations of
governmental regulatory authorities.
2.2. Nature of Obligations. The obligations of
Entergy hereunder to make cash capital contributions to the
Company pursuant to the provisions of Sections 1.3 and 1.4 having
heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required) and the owners of the _____________ Series Bonds having
relied on such authorization in purchasing the ___________ Series
Bonds, Entergy agrees that its duty to perform such obligations
shall be absolute and unconditional, (a) whether or not Entergy
shall have received all authorizations of governmental regulatory
authorities necessary at the time to permit Entergy to perform
its other duties and obligations hereunder, (b) whether or not
the Company shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit the Company to perform its duties and obligations
hereunder, (c) whether or not any authorizations referred to in
the foregoing clauses (a) and (b) continue, at the time, in
effect, (d) whether or not, at any time in question, the Company
shall have performed its duties and obligations under this
Agreement, (e) whether or not the Project shall be maintained in
commercial operation, energy from the Project is being produced
or delivered or is available (including, without limitation,
delivery or availability to other subsidiaries of Entergy), an
abandonment of the Project shall have occurred or the Project
shall be in whole or in part destroyed or taken, for any reason
whatsoever, (f) whether or not the Company shall be solvent, (g)
regardless of any event of force majeure and (h) regardless of
any other circumstance, happening, condition or event whatsoever,
whether or not similar to any of the foregoing. Subject to
Section 2.1(a), all other obligations of Entergy hereunder are
similarly absolute and unconditional.
(b) In the event that Entergy shall cease to own at
least a majority of common stock of the Company and such lower
ownership percentage has been permitted pursuant to the consent
of the holders of at least 66-2/3% of the ___________ Series
Bonds Outstanding (as defined in the Indenture) at the time of
the consent, the obligations of Entergy hereunder shall not be
increased by any amendment to, or modification of, the terms and
provisions of the Indenture or the ___________ Series Bonds
unless Entergy shall have consented in writing to such amendment
or modification.
2.3. Waivers of Defenses. The obligations of Entergy
under Sections 1.2, 1.3 and 1.4 to supply capital or cause
capital to be supplied or to make cash capital contributions to
the Company shall not be subject to any abatement, reduction,
limitation, impairment, termination, set-off, defense,
counterclaim or recoupment whatsoever or any right to any thereof
(including, but not limited to, abatements, reductions,
limitations, impairments, terminations, set-offs, defenses,
counterclaims and recoupments for or on account of any past,
present or future indebtedness of the Company to Entergy or any
claim by Entergy against the Company, whether or not arising
under this Agreement and whether or not arising out of any action
or nonaction on the part of the Company or the Trustees (or
either of them), including any disposition of the Project or any
part thereof pursuant to the Indenture, requirements of
governmental authorities, actions of judicial receivers or
trustees or otherwise and whether or not arising from willful or
negligent acts or omissions). The foregoing, however, shall not,
subject to the provisions of Section 1.5 hereof, affect in any
other way any rights and remedies of Entergy with respect to any
amounts owed to Entergy by the Company or any such claim by
Entergy against the Company. The obligations and liabilities of
Entergy hereunder shall not be released, discharged or in any way
affected by any reorganization, arrangement, compromise,
composition or plan affecting the Company or any change, waiver,
extension, indulgence or other action or omission in respect of
any indebtedness or obligation of the Company or Entergy, whether
or not the Company or Entergy shall have had any notice or
knowledge of any of the foregoing. Neither failure nor delay by
the Company or the Trustees (or either of them) or any holder or
representative of any holder of the ____________ Series Bonds to
exercise any right or remedy provided herein or by statute or at
law or in equity shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or remedy preclude
any other or further exercise thereof, or the exercise of any
other right or remedy. Entergy also hereby irrevocably waives, to
the extent that it may do so under applicable law, any defense
based on the adequacy of a remedy at law which may be asserted as
a bar to the remedy of specific performance in any action brought
against Entergy for specific performance of this Agreement by the
Company or by the Trustees (or either of them) or by the holders
of the ___________ Series Bonds or for their benefit by a
receiver or trustee appointed for the Company or in respect of
all or a substantial part of the Company's assets under the
bankruptcy or insolvency law of any jurisdiction to which the
Company is or its assets are subject. Anything in this Section
2.3 to the contrary notwithstanding, Entergy shall not be
precluded from asserting as a defense against any claim made
against Entergy upon any of its obligations hereunder that it has
fully performed such obligation in accordance with the terms of
this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to the
provisions of Section 1.5, be subrogated to all rights of the
Trustees and the holders of the ____________ Series Bonds against
the Company in respect of any amounts paid by Entergy pursuant to
the provisions of this Agreement and applied to the payment of
the Obligations Secured Hereby (as defined in Section 5.1
hereof). The Trustees agree that they will not deal with the
Company, or any security for the ______________ Series Bonds, in
such a manner as to prejudice such rights of Entergy.
ARTICLE III.
Term
This Agreement shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of
Entergy and the Company set forth in this Agreement are
exclusively for the benefit of, and may be enforced only by, the
Trustees (or either of them), by the holders of the ___________
Series Bonds as provided in the Indenture, or for their benefit
by a receiver or trustee for the Company or in respect of all or
a substantial part of its assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is or its
assets are subject.
ARTICLE IV.
Assignment
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by any of the parties hereto,
except transfer or assignment by the Trustees to their successors
in accordance with Article XVII of the Indenture, except as
otherwise provided in Article V hereof and except that:
(i) in the event that Entergy shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Agreement shall be transferred by Entergy to
and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Company and the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of Entergy's obligations and
liabilities under this Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person; and
(ii) in the event that the Company shall
consolidate with or merge with or into another corporation or
shall transfer to another corporation or other person all or
substantially all of its assets, this Agreement shall be
transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or the
corporation or other person to which such transfer is made and,
as a condition to such consolidation, merger or other transfer,
such corporation or other person shall deliver to the Corporate
Trustee a written assumption, in form and substance satisfactory
to the Corporate Trustee, of the Company's obligations and
liabilities under this Agreement and an opinion of counsel to the
effect that such instrument complies with the requirements hereof
and constitutes a valid, legally binding and enforceable
obligation of such corporation or other person.
ARTICLE V.
Security Assignment and Agreement
5.1. Assignment and Creation of Security Interest. As
security for (i) the due and punctual payment of the interest
(including, if and to the extent permitted by law, interest on
overdue principal, premium and interest) and premium, if any, on,
and the principal of, the _____________ Series Bonds (whether at
the stated maturity thereof, pursuant to mandatory or optional
prepayment, by acceleration or otherwise) and (ii) the due and
punctual payment of all fees and costs, expenses and other
amounts which may become payable by the Company under the
Indenture which are a charge on the trust estate thereunder which
is superior to the charge thereon for the benefit of the
___________ Series Bonds, together in each case with all costs of
collection thereof (all such amounts referred to in the foregoing
clauses (i) and (ii) being hereinafter collectively referred to
as "Obligations Secured Hereby"), the Company hereby assigns to
the Trustees and creates a security interest in favor of the
Trustees, in (x) all of the Company's rights to receive all
moneys paid, or caused to be paid, or to be paid or to be caused
to be paid, to the Company by Entergy pursuant to Section 1.4 of
this Agreement, and (y) all other claims, rights (but not
obligations or duties), powers, privileges, interests and
remedies of the Company (including, without limitation, all of
the Company's rights to receive all moneys paid, or caused to be
paid, or to be paid, or to be caused to be paid, to the Company
by Entergy pursuant to Sections 1.2 and 1.3 of this Agreement),
whether arising under this Agreement or by statute or in law or
in equity or otherwise, resulting from any failure by Entergy to
perform its obligations under this Agreement, but so far as this
clause (y) is concerned only to the extent required for the
payment when due and payable of the Obligations Secured Hereby,
together in each case with full power and authority, in the name
of the Trustees, or the Company as assignor, or otherwise, to
demand payment of, enforce, collect, receive and receipt for any
and all of the foregoing (the rights, claims, powers, privileges,
interests and remedies referred to in clause (y) being
hereinafter sometimes called the "Collateral").
5.2. Other Agreements.
(a) The Company will not assign the rights assigned in
clause (x) of Section 5.1 as security for any indebtedness other
than the Obligations Secured Hereby and will not assign the other
rights assigned in Section 5.1 as security for any indebtedness
other than the Obligations Secured Hereby, except as provided in
paragraph (b) of this Section 5.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks as
referred to in Whereas Clause C hereof by the First, Fourth,
Fifth and Eighth Supplementary Capital Funds Agreements, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, the Sixteenth Series Bonds, and the
Seventeenth Series Bonds, as referred to in Whereas Clause D
hereof by the Second, Third, Eleventh, Thirteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh and
Twenty-ninth Supplementary Capital Funds Agreements,
respectively, (iii) loans made by certain banks as referred to in
Whereas Clause E hereof by the Sixth and Seventh Supplementary
Capital Funds Agreements, respectively, (iv) the obligations
under the Series A Reimbursement Agreement as referred to in
Whereas Clause F hereof by the Ninth Supplementary Capital Funds
Agreement, (v) the obligations under the Series B Reimbursement
Agreement as referred to in Whereas Clause G hereof by the Tenth
Supplementary Capital Funds Agreement, (vi) the obligations under
the Series C Reimbursement Agreement as referred to in Whereas
Clause H hereof by the Twelfth Supplementary Capital Funds
Agreement, (vii) the Fifth Series Bonds as referred to in Whereas
Clause I hereof by the Fourteenth Supplementary Capital Funds
Agreement, (viii) the Sixth Series Bonds as referred to in
Whereas Clause J hereof by the Fifteenth Supplementary Capital
Funds Agreement, (ix) the obligations under the Reimbursement
Agreement as referred to in Whereas Clause K hereof by the
Twenty-second Supplementary Capital Funds Agreement, (x) the
obligations under the First Amended Reimbursement Agreement as
referred to in Whereas Clause L hereof by the Twenty-third
Supplementary Capital Funds Agreement, and (xi) the obligations
under the Second Amended Reimbursement Agreement as referred to
in Whereas Clause M hereof by the Twenty-eighth Supplementary
Capital Funds Agreement, and shall be entitled to secure the
interest and premium, if any, on, and the principal of, other
Indebtedness for Borrowed Money of the Company issued by the
Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness issued for such purpose, the incurrence of which
Indebtedness is at the time permitted by the Indenture (herein
called "Additional Indebtedness"), by entering into a
supplementary capital funds agreement and assignment including,
without limitation, the First through ____________ Supplementary
Capital Funds Agreements (each being hereinafter called an
"Additional Supplementary Agreement") with the holders of such
Additional Indebtedness or representatives of or trustees for
such holders, or both, as the case may be (hereinafter called an
"Additional Assignee"). Each Additional Supplementary Agreement
shall be substantially in the form of this Agreement, except that
there shall be substituted in such Additional Supplementary
Agreement appropriate references to such Additional Indebtedness,
such Additional Assignee and the agreement or instrument under
which such Additional Indebtedness is issued in lieu of the
references herein to the ______________ Series Bonds, the
Trustees, and the Indenture, respectively, and such Additional
Supplementary Agreement may contain such other provisions as are
not inconsistent with this Agreement and do not adversely affect
the rights hereunder of the holders of the ______________ Series
Bonds or the Trustees or any of them.
(c) Notwithstanding any provision of this Agreement to
the contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the
Trustees, or any provision of or filing or recording under the
Uniform Commercial Code or any other applicable law of any
jurisdiction, the Trustees agree that the claims of the Trustees
under Sections 1.2 and 1.3 of this Agreement and any security
interest, pledge or lien in favor of the Trustees now or
hereafter existing in and to the Collateral shall rank pari passu
with the claims of each Additional Assignee under the
corresponding sections of the Additional Supplementary Agreement
to which it is a party and any security interest, pledge or lien
in favor of such Additional Assignee thereunder now or hereafter
existing in and to the Collateral, irrespective of the time or
times at which prior, concurrent or subsequent Additional
Supplementary Agreements are entered into in accordance with
Section 5.2(b) hereof.
5.3. Payments to the Corporate Trustee. The Company
agrees that, if and whenever it shall make a demand to Entergy
for any payment pursuant to Section 1.2, 1.3, or 1.4 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement, it will separately identify
the respective portions of such payment, if any, required for (i)
the payment of Obligations Secured Hereby and (ii) the payment of
any other amounts then due and payable in respect of Additional
Indebtedness and instruct Entergy (subject to the provisions of
Section 5.4) to pay or cause to be paid the amount so identified
as required for the payment of Obligations Secured Hereby
directly to the Corporate Trustee. Any payments made or caused
to be made by Entergy pursuant to Section 1.2 or 1.3 of this
Agreement or pursuant to the corresponding provisions of any
Additional Supplementary Agreement shall, to the extent necessary
to satisfy in full the assignment set forth in Section 5.1 of
this Agreement and the corresponding assignments set forth in the
Additional Supplementary Agreements, be made pro rata in
proportion to the respective amounts secured by, and then due and
owing under, such assignments.
5.4. Payments to the Company. Notwithstanding the
provisions of Sections 5.1 and 5.3, unless and until the
Corporate Trustee shall have given written notice to Entergy of
the occurrence and continuance of any Default (as defined in the
Indenture), all moneys paid or to be paid to the Company pursuant
to Sections 1.2, 1.3 and 1.4 of this Agreement shall be paid
directly to the Company and the Company need not separately
identify the respective portions of payments as provided in
Section 5.3 hereof, provided that notice as to the amount of any
such payments or advances shall be given by the Company to the
Corporate Trustee simultaneously with the demand by the Company
for any such payment. If the Corporate Trustee shall have duly
notified Entergy of the occurrence of any such Default, such
payments shall be made in the manner and in the amounts specified
in Section 5.3 hereof until the Corporate Trustee shall by
further notice to Entergy give permission that all such payments
may be made again to the Company, such permission being subject
to revocation by a subsequent notice pursuant to the first
sentence of this Section 5.4. The Corporate Trustee shall give
such permission if no such Default continues to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing
assignment and agrees with the Trustees to make payments to the
Corporate Trustee in the amounts and in the manner specified in
Section 5.3 at the principal corporate trust office of the
Corporate Trustee in New York City, New York, which is presently
located at 114 West 47th Street, New York, New York 10036.
(b) Subject to the provisions of Section 2.4 hereof,
Entergy agrees that all payments made to the Corporate Trustee or
to the Company as contemplated by Sections 5.3 and 5.4 shall be
final as between Entergy and the Corporate Trustee or the
Company, as the case may be, and that Entergy will not seek to
recover from the Corporate Trustee for any reason whatsoever any
moneys paid to the Corporate Trustee by virtue of this Agreement,
but the finality of any such payment shall not prevent the
recovery of any overpayments or mistaken payments which may be
made by Entergy unless a Default has occurred and is continuing,
in which case any such overpayment or mistaken payment shall not
be recoverable but shall constitute Subordinated Indebtedness of
the Company to Entergy.
ARTICLE VI.
Amendments
6.1. Restrictions on Amendments. This Agreement may
not be amended, waived, modified, discharged or otherwise changed
orally. It may be amended, waived, modified, discharged or
otherwise changed only by a written instrument which has been
signed by all the parties hereto and which has been approved by
the holders of more than 50% in principal amount of the
_____________ Series Bonds Outstanding (as defined in the
Indenture) at the time of such consent or which does not
materially adversely affect the rights of the Trustees or the
holders of the ______________ Series Bonds or which is necessary
in order to qualify the Indenture under the Trust Indenture Act
of 1939, as contemplated by Section 20.04 of the Mortgage,
provided, however, that (i) without the written consent of the
holders of all the _______________ Series Bonds affected thereby,
no amendment, waiver, modification, discharge or other change
shall be made which shall change the terms of this Section 6.1
and (ii) no such amendment, waiver, modification, discharge or
other change shall be made which shall modify, without the
written consent of each of the Trustees, the rights, duties or
immunities of the Trustees or either of them.
6.2. Trustees' Execution. The Trustees shall, at the
request of the Company, execute any instrument amending, waiving,
modifying, discharging or otherwise changing this Agreement (a)
as to which the Corporate Trustee shall have received an opinion
of counsel to the effect that such instrument has been duly
authorized by Entergy and the Company and is permitted by the
provisions of Section 6.1 and that this Agreement, as amended,
waived, modified discharged or otherwise changed by such
instrument, constitutes valid, legally binding and enforceable
obligations of the Company and Entergy, and (b) which shall have
been executed by Entergy and the Company. The Trustees, and each
of them, shall be fully protected in relying upon the aforesaid
opinion.
ARTICLE VII.
Notices
7.1. Notices, Etc., in Writing. All notices,
consents, requests and other documents authorized or permitted to
be given pursuant to this Agreement shall be given in writing and
either personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Entergy Corporation, to:
P.O. Box 61005
New Orleans, Louisiana 70161
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 7.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII.
Enforcement
8.1 Indenture Terms and Conditions. The Trustees, and
each of them, enter into and accept this Agreement upon the terms
and conditions set forth in Article XVII of the Indenture with
the same force and effect as if those terms and conditions were
repeated at length herein and made applicable to the Trustees,
and each of them, in respect of this Agreement and the trusts
hereunder and in respect of any action taken, suffered or omitted
to be taken by the Trustees, or either of them, hereunder.
Nothing in this Agreement shall affect any right or remedy of the
Company or Entergy against the Trustees, or either of them (other
than those specifically waived herein), for breach or violation
of any of the obligations or duties of the Trustees assumed or
undertaken in this Agreement. Without limiting the generality of
the foregoing, the Trustees, and each of them, assume no
responsibility as to the validity or enforceability hereof or for
the correctness of the recitals of fact contained herein or in
the Capital Funds Agreement, which shall be taken as the
statements, representations and warranties of the Company and
Entergy.
8.2. Enforcement Action. At any time when a Default
under the Indenture has occurred and is continuing, the Trustees
(or either of them) may proceed, in their, its or his own name,
or as trustees or trustee of an express trust or otherwise, to
protect and enforce the rights of the Trustees (or either of
them), and those of the Company under this Agreement by suit in
equity, action at law or other appropriate proceedings, whether
for the specific performance of any covenant or agreement
contained in this Agreement or otherwise, and whether or not the
Company shall have complied with any of the provisions hereof or
proceeded to take any action authorized or permitted under
applicable law. Each and every remedy of the Trustees, and each
of them shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under
the Indenture or now or hereafter existing at law or in equity or
by statute.
8.3. Attorney-in-Fact. The Company hereby constitutes
the Trustees, and each of them, with authority to act without the
other, its true and lawful attorney, irrevocably, with full power
(in such attorney's name or otherwise), at any time when a
Default under the Indenture has occurred and is continuing, to
enforce any of the obligations contained herein or to take any
action or institute any proceedings which to the Trustees (or
either of them) may seem necessary or advisable in the premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
ENTERGY CORPORATION
By:
Name:
Title:
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By:
Name:
Title:
GERARD F. GANEY,
as Individual Trustee
Exhibit B-3(b)
___________ SUPPLEMENTARY CAPITAL FUNDS AGREEMENT
AND ASSIGNMENT
This ___________ Supplementary Capital Funds Agreement
and Assignment (hereinafter referred to as "this Agreement")
dated as of ________, ___, is made by and between Entergy
Corporation (successor to Middle South Utilities, Inc.)
("Entergy"), System Energy Resources, Inc. (formerly Middle South
Energy, Inc.) (the "Company"), United States Trust Company of New
York, as trustee (hereinafter called the "Corporate Trustee"),
Gerard F. Ganey (successor to Malcolm J. Hood), as trustee
(hereinafter called the "Individual Trustee") (the Corporate
Trustee and the Individual Trustee being hereinafter called the
"Trustees") and Deposit Guaranty National Bank, as trustee under
the Trust Indenture referred to below (the "Issuer Trustee").
WHEREAS:
A. Entergy and the Company are parties to a Capital
Funds Agreement dated as of June 21, 1974, as amended by a First
Amendment thereto dated June 1, 1989 (the "Capital Funds
Agreement").
B. Entergy owns all of the outstanding common stock of
the Company, and the Company has a 90% undivided ownership and
leasehold interest in Unit No. 1 of the Grand Gulf Nuclear
Electric Station project ("Project") (more fully described in the
"Indenture" hereinafter referred to).
C. Prior hereto (i) the Company, Manufacturers Hanover
Trust Company, as agent for certain banks (the "Domestic Agent"),
and said banks entered into an Amended and Restated Bank Loan
Agreement dated as of June 30, 1977 (the "Amended and Restated
Agreement"), the First Amendment thereto, dated as of March 20,
1980 (the "First Bank Loan Amendment"), the Second Amended and
Restated Bank Loan Agreement dated as of June 15, 1981, as
amended by the First Amendment dated as of February 5, 1982 (as
so amended, the "Second Amended and Restated Bank Loan
Agreement"), and the Second Amendment of the Second Amended and
Restated Bank Loan Agreement, dated as of June 30, 1983 as
further amended by the Third Amendment thereto dated as of
December 30, 1983 and the Fourth Amendment thereto dated as of
June 28, 1984 (as so further amended, the "Second Bank Loan
Second Amendment"); (ii) the banks party to the Amended and
Restated Agreement made loans to the Company in the aggregate
principal amount of $565,000,000 and pursuant to the First
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of June
30, 1977 between Entergy, the Company and the Domestic Agent (the
"First Supplementary Capital Funds Agreement"), the Company and
Entergy supplemented their undertakings under the Capital Funds
Agreement for the benefit of the Domestic Agent and such banks;
(iii) the First Bank Loan Amendment, among other things,
increased the amount of the loans made by the banks party thereto
to $808,000,000 and pursuant to the Fourth Supplementary Capital
Funds Agreement and Assignment (also substantially in the form of
this Agreement) dated as of March 20, 1980 (the "Fourth
Supplementary Capital Funds Agreement"), Entergy and the Company
further supplemented their undertakings under the Capital Funds
Agreement for the Domestic Agent and the banks under the Amended
and Restated Agreement as amended by the First Bank Loan
Agreement; (iv) the Second Amended and Restated Bank Loan
Agreement provided, among other things, for (a) the making of
revolving credit loans by the banks named therein to the Company
from time to time in an aggregate amount not in excess of
$1,311,000,000 at any one time outstanding, and (b) the making of
a term loan by said banks to the Company in an aggregate amount
not to exceed $1,311,000,000, and, pursuant to the Fifth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement), dated as of June
15, 1981 (the "Fifth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement;
and (v) the Second Bank Loan Second Amendment, among other
things, increased the amount of the loans to be made by the banks
party thereto to $1,711,000,000 and pursuant to the Eighth
Supplementary Capital Funds Agreement and Assignment (also
substantially in the form of this Agreement) dated as of June 30,
1983 (the "Eighth Supplementary Capital Funds Agreement"),
Entergy and the Company further supplemented their undertakings
under the Capital Funds Agreement for the Domestic Agent and the
banks under the Second Amended and Restated Bank Loan Agreement,
as amended by the Second Bank Loan Second Amendment.
D. Prior hereto (i) Entergy, the Company, and the
Trustees, as trustees for the holders of $400,000,000 aggregate
principal amount of the Company's First Mortgage Bonds, 9.25%
Series due 1989 (the "First Series Bonds") issued under a
Mortgage and Deed of Trust dated as of June 15, 1977, between the
Company and the Trustees (the "Mortgage"), as supplemented by a
First Supplemental Indenture dated as of June 15, 1977, between
the Company and the Trustees (the Mortgage, as so supplemented
and as supplemented by a Second Supplemental Indenture dated as
of January 1, 1980, a Third Supplemental Indenture dated as of
June 15, 1981, a Fourth Supplemental Indenture dated as of June
1, 1984, a Fifth Supplemental Indenture dated as of December 1,
1984, a Sixth Supplemental Indenture dated as of May 1, 1985, a
Seventh Supplemental Indenture dated as of June 15, 1985, an
Eighth Supplemental Indenture dated as of May 1, 1986, a Ninth
Supplemental Indenture dated as of May 1, 1986, a Tenth
Supplemental Indenture dated as of September 1, 1986, an Eleventh
Supplemental Indenture dated as of September 1, 1986, a Twelfth
Supplemental Indenture dated as of September 1, 1986, a
Thirteenth Supplemental Indenture dated as of November 15, 1987,
a Fourteenth Supplemental Indenture dated as of December 1, 1987,
a Fifteenth Supplemental Indenture dated as of July 1, 1992, a
Sixteenth Supplemental Indenture dated as of October 1, 1992, a
Seventeenth Supplemental Indenture dated as of October 1, 1992,
an Eighteenth Supplemental Indenture dated as of April 1, 1993,
and a Nineteenth Supplemental Indenture dated as of April 1, 1994
and as the same may from time to time hereafter be amended and
supplemented in accordance with its terms, being hereinafter
called the "Indenture"), entered into the Second Supplementary
Capital Funds Agreement and Assignment dated as of June 30, 1977
(the "Second Supplementary Capital Funds Agreement")
(substantially in the form of this Agreement) to secure the First
Series Bonds; (ii) Entergy, the Company, and the Trustees, as
trustees for the holders of $98,500,000 aggregate principal
amount of the Company's First Mortgage Bonds, 12.50% Series due
2000 (the "Second Series Bonds") issued under the Mortgage, as
supplemented by a Second Supplemental Indenture dated as of
January 1, 1980 between the Company and the Trustees, entered
into the Third Supplementary Capital Funds Agreement and
Assignment dated as of January 1, 1980 (the "Third Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Second Series Bonds; (iii) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 16% Series due 2000 (the "Third Series Bonds")
issued under the Mortgage, as supplemented by a Fifth
Supplemental Indenture dated as of December 1, 1984 between the
Company and the Trustees, entered into the Eleventh Supplementary
Capital Funds Agreement and Assignment dated as of December 1,
1984 (the "Eleventh Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Third
Series Bonds; (iv) Entergy, the Company and the Trustees, as
trustees for the holders of $100,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 15.375% Series due
2000 (the "Fourth Series Bonds") issued under the Mortgage, as
supplemented by a Sixth Supplemental Indenture, dated as of May
1, 1985 between the Company and the Trustees, entered into the
Thirteenth Supplementary Capital Funds Agreement and Assignment
dated as of May 1, 1985 (the "Thirteenth Supplementary Capital
Funds Agreement") (also substantially in the form of this
Agreement) to secure the Fourth Series Bonds; (v) Entergy, the
Company and the Trustees, as trustees for the holders of
$300,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 11% Series due 2000 (the "Seventh Series Bonds")
issued under the Mortgage, as supplemented by a Ninth
Supplemental Indenture, dated as of May 1, 1986 between the
Company and the Trustees, entered into the Sixteenth
Supplementary Capital Funds Agreement and Assignment dated as of
May 1, 1986 (the "Sixteenth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Seventh Series Bonds; (vi) Entergy, the Company, and
the Trustees, as trustees for the holders of $300,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
9 7/8% Series due 1991 (the "Eighth Series Bonds") issued under
the Mortgage, as supplemented by a Tenth Supplemental Indenture,
dated as of September 1, 1986 between the Company and the
Trustees, entered into the Seventeenth Supplementary Capital
Funds Agreement and Assignment dated as of September 1, 1986 (the
"Seventeenth Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the Eighth
Series Bonds; (vii) Entergy, the Company and the Trustees, as
trustees for the holders of $250,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 10 1/2% Series due
1996 (the "Ninth Series Bonds") issued under the Mortgage, as
supplemented by an Eleventh Supplemental Indenture, dated as of
September 1, 1986 between the Company and the Trustees, entered
into the Eighteenth Supplementary Capital Funds Agreement and
Assignment dated as of September 1, 1986 (the "Eighteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Ninth Series Bonds;
(viii) Entergy, the Company and the Trustees, as trustees for the
holders of $200,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 11 3/8% Series due 2016 (the
"Tenth Series Bonds") issued under the Mortgage, as supplemented
by a Twelfth Supplemental Indenture, dated as of September 1,
1986 between the Company and the Trustees, entered into the
Nineteenth Supplementary Capital Funds Agreement and Assignment
dated as of September 1, 1986 (the "Nineteenth Supplementary
Capital Funds Agreement") (also substantially in the form of this
Agreement) to secure the Tenth Series Bonds; (ix) Entergy, the
Company and the Trustees, as trustees for the holders of
$200,000,000 aggregate principal amount of the Company's First
Mortgage Bonds, 14% Series due 1994 (the "Eleventh Series Bonds")
issued under the Mortgage, as supplemented by a Thirteenth
Supplemental Indenture dated as of November 15, 1987 between the
Company and the Trustees, entered into the Twentieth
Supplementary Capital Funds Agreement and Assignment dated as of
November 15, 1987 (the "Twentieth Supplementary Capital Funds
Agreement") (also substantially in the form of this Agreement) to
secure the Eleventh Series Bonds; (x) Entergy, the Company and
the Trustees, as trustees for the holders of $100,000,000
aggregate principal amount of the Company's First Mortgage Bonds,
14.34% Series due 1992 (the "Twelfth Series Bonds") issued under
the Mortgage, as supplemented by a Fourteenth Supplemental
Indenture dated as of December 1, 1987 between the Company and
the Trustees, entered into the Twenty-first Supplementary Capital
Funds Agreement and Assignment dated as of December 1, 1987 (the
"Twenty-first Supplementary Capital Funds Agreement") (also
substantially in the form of this Agreement) to secure the
Twelfth Series Bonds; (xi) Entergy, the Company and the Trustees,
as trustees for the holders of $45,000,000 aggregate principal
amount of the Company's First Mortgage Bonds, 8.40% Series due
2002 (the "Thirteenth Series Bonds") issued under the Mortgage,
as supplemented by a Fifteenth Supplemental Indenture dated as of
July 1, 1992 between the Company and the Trustees, entered into
the Twenty-fourth Supplementary Capital Funds Agreement and
Assignment dated as of July 1, 1992 (the "Twenty-fourth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Thirteenth Series
Bonds; (xii) Entergy, the Company and the Trustees, as trustees
for the holders of $105,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6.12% Series due 1995 (the
"Fourteenth Series Bonds") issued under the Mortgage, as
supplemented by a Sixteenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-fifth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-fifth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fourteenth Series
Bonds; (xiii) Entergy, the Company and the Trustees, as trustees
for the holders of $70,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 8.25% Series due 2002 (the
"Fifteenth Series Bonds") issued under the Mortgage, as
supplemented by a Seventeenth Supplemental Indenture dated as of
October 1, 1992 between the Company and the Trustees, entered
into the Twenty-sixth Supplementary Capital Funds Agreement and
Assignment dated as of October 1, 1992 (the "Twenty-sixth
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Fifteenth Series Bonds;
(xiv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 6% Series due 1998 (the
"Sixteenth Series Bonds") issued under the Mortgage, as
supplemented by an Eighteenth Supplemental Indenture dated as of
April 1, 1993 between the Company and the Trustees, entered into
the Twenty-seventh Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1993 (the "Twenty-seventh
Supplementary Capital Funds Agreement")(also substantially in the
form of this Agreement) to secure the Sixteenth Series Bonds; and
(xv) Entergy, the Company and the Trustees, as trustees for the
holders of $60,000,000 aggregate principal amount of the
Company's First Mortgage Bonds, 7-5/8% series due 1999 (the
"Seventeenth Series Bonds") issued under the Mortgage, as
supplemented by a Nineteenth Supplemental Indenture dated as of
April 1, 1994 between the Company and the Trustees, entered into
the Twenty-ninth Supplementary Capital Funds Agreement and
Assignment dated as of April 1, 1994 (the "Twenty-ninth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Seventeenth Series
Bonds.
E. The Company, Credit Suisse First Boston Limited, as
agent for certain banks (the "Eurodollar Agent") and said banks
(including successors and assignees and such other banks as
became party to the Loan Facility as defined below, the
"Eurodollar Banks") were parties to the Loan Agreement (the
"Original Eurodollar Loan Agreement") dated February 5, 1982 (as
amended, the "Loan Facility"). Under the Original Eurodollar
Loan Agreement the banks party thereto made loans to the Company
in the aggregate principal amount of $315,000,000 and pursuant to
the Sixth Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement) dated as of
February 5, 1982 between Entergy, the Company and the Eurodollar
Agent (the "Sixth Supplementary Capital Funds Agreement"), the
Company and Entergy supplemented their undertakings under the
Capital Funds Agreement for the benefit of the Eurodollar Agent
and said banks. The Company, the Eurodollar Agent and the
Eurodollar Banks were parties to the First Amendment dated as of
February 18, 1983 to the Loan Facility which, among other things,
increased the amount of the loans to be made by the Eurodollar
Banks to $378,000,000 and pursuant to the Seventh Supplementary
Capital Funds Agreement and Assignment (also substantially in the
form of this Agreement) dated as of February 18, 1983 (the
"Seventh Supplementary Capital Funds Agreement"), Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Eurodollar Agent and the Eurodollar
Banks.
F. The Company and Citibank, N.A. (the "Bank") were
parties to a letter of credit and reimbursement agreement dated
as of December 1, 1983 (the "Series A Reimbursement Agreement")
which provided, among other things, for the issuance by the Bank
for the account of the Company of an irrevocable transferable
letter of credit in support of the Claiborne County, Mississippi
Adjustable/Fixed Rate Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series A (the "Series A Bonds"),
issued by Claiborne County, Mississippi pursuant to a trust
indenture dated as of December 1, 1983 naming Deposit Guaranty
National Bank as trustee. Pursuant to the Ninth Supplementary
Capital Funds Agreement (also substantially in the form of this
Agreement) dated as of December 1, 1983 (the "Ninth Supplementary
Capital Funds Agreement"), Entergy and the Company further
supplemented their undertakings under the Capital Funds Agreement
for the Bank and the trustee under the indenture relating to the
Series A Bonds.
G. The Company and the Bank were parties to a letter
of credit and reimbursement agreement dated as of June 1, 1984
(the "Series B Reimbursement Agreement") which provided, among
other things, for the issuance by the Bank for the account of the
Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B (the "Series B Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
June 1, 1984 naming Deposit Guaranty National Bank as trustee.
Pursuant to the Tenth Supplementary Capital Funds Agreement (also
substantially in the form of this Agreement) dated as of June 1,
1984 (the "Tenth Supplementary Capital Funds Agreement"), Entergy
and the Company further supplemented their undertakings under the
Capital Funds Agreement for the Bank and Deposit Guaranty
National Bank as trustee under the indenture relating to the
Series B Bonds.
H. The Company, the Bank as a Co-Agent and as
Coordinating Agent, and Manufacturers Hanover Trust Company, as a
Co-Agent for a group of banks (the "Banks") were parties to a
letter of credit and reimbursement agreement dated as of December
1, 1984 (the "Series C Reimbursement Agreement") which provided,
among other things, for the issuance by the Banks for the account
of the Company of an irrevocable transferable letter of credit in
support of the Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series C (the "Series C Bonds"), issued by Claiborne
County, Mississippi pursuant to a trust indenture dated as of
December 1, 1984 naming Deposit Guaranty National Bank as
trustee. Pursuant to the Twelfth Supplementary Capital Funds
Agreement (also substantially in the form of this Agreement)
dated as of December 1, 1984 (the "Twelfth Supplementary Capital
Funds Agreement"), Entergy and the Company further supplemented
their undertakings under the Capital Funds Agreement for the
Banks and Deposit Guaranty National Bank as trustee under the
indenture relating to the Series C Bonds.
I. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $47,208,334 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series A (the "Fifth Series Bonds") issued under the
Mortgage, as supplemented by a Seventh Supplemental Indenture
dated as of June 15, 1985 between the Company and the Trustees,
entered into the Fourteenth Supplementary Capital Funds Agreement
and Assignment dated as of June 15, 1985 (the "Fourteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Fifth Series Bonds. The
Fifth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 12 1/2% Pollution Control Revenue
Bonds due 2015 (Middle South Energy, Inc. Project) Series D (the
"Series D Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of June 15, 1985 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fourteenth Supplementary Capital Funds Agreement, Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Trustees and Deposit Guaranty National
Bank as trustee under the indenture relating to the Series D
Bonds.
J. Entergy, the Company, the Trustees and Deposit
Guaranty National Bank, as holder of $95,643,750 aggregate
principal amount of the Company's First Mortgage Bonds, Pollution
Control Series B (the "Sixth Series Bonds") issued under the
Mortgage, as supplemented by an Eighth Supplemental Indenture
dated as of May 1, 1986 between the Company and the Trustees,
entered into the Fifteenth Supplementary Capital Funds Agreement
and Assignment dated as of May 1, 1986 (the "Fifteenth
Supplementary Capital Funds Agreement") (also substantially in
the form of this Agreement) to secure the Sixth Series Bonds. The
Sixth Series Bonds were issued as security, in part, for the
Claiborne County, Mississippi 9 1/2% Pollution Control Revenue
Bonds due 2016 (Middle South Energy, Inc. Project) Series E (the
"Series E Bonds"), issued by Claiborne County, Mississippi
pursuant to a trust indenture dated as of May 1, 1986 naming
Deposit Guaranty National Bank as trustee. Pursuant to the
Fifteenth Supplementary Capital Funds Agreement, Entergy and the
Company further supplemented their undertakings under the Capital
Funds Agreement for the Trustees and Deposit Guaranty National
Bank as trustee under the indenture relating to the Series E
Bonds.
K. The Company has entered into a sale and leaseback
transaction with respect to a portion of its undivided interest
in Unit No. 1 and to that end the Company has entered into, among
other agreements, (i) Facility Leases Nos. 1 and 2, dated as of
December 1, 1988, among Meridian Trust Company and Stephen M.
Carta (Stephen J. Kaba, successor) (collectively, the "Owner
Trustee") as Owner Trustee and the Company, each as supplemented
by a separate Lease Supplement No. 1 thereto, each dated as of
April 1, 1989, and a separate Lease Supplement No. 2 thereto,
each dated as of January 1, 1994, (ii) a Participation Agreement
No. 1, dated as of December 1, 1988 among Public Service
Resources Corporation ("PSRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GGIB
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which PSRC invested
$400,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Resources Capital
Management Corporation from PSRC), and a Participation Agreement
No. 2, dated as of December 1, 1988 among Lease Management Realty
Corporation IV ("LMRC") as Owner Participant, the Loan
Participants listed therein, GGIA Funding Corporation (GG1B
Funding Corporation, successor), as Funding Corporation, the
Owner Trustee and the Company pursuant to which LMRC invested
$100,000,000 in an undivided interest in Unit No. 1 (which
interest was subsequently acquired by Textron Financial
Corporation from LMRC) (the owner participants under all such
participation agreements being referred to as the "Owner
Participants") and (iii) the Reimbursement Agreement which
provided, among other things, (x) for the issuance by the Funding
Bank named therein ("1988 Funding Bank"), for the account of the
Company, of irrevocable transferable letters of credit (the "1988
LOCs") to the Owner Participants to secure certain obligations of
the Company to the Owner Participants substantially in the form
of Exhibit A to the Reimbursement Agreement with maximum amounts
of $104,000,000, and $26,000,000, (y) for the reimbursement to
such 1988 Funding Bank by the banks named therein ("1988
Participating Banks") for all drafts paid by such 1988 Funding
Bank under any 1988 LOC and (z) for the reimbursement by the
Company to such 1988 Funding Bank for the benefit of the 1988
Participating Banks of sums equal to all drafts paid by such 1988
Funding Bank under any 1988 LOCs. Pursuant to the Twenty-second
Supplementary Capital Funds Agreement and Assignment
(substantially in the form of this Agreement), dated as of
December 1, 1988 (the "Twenty-second Supplementary Capital Funds
Agreement"), Entergy and the Company further supplemented their
undertakings under the Capital Funds Agreement for the benefit of
Chemical Bank (the "Administrating Bank"), such 1988 Funding Bank
and the 1988 Participating Banks.
L. Entergy, the Company and Chemical Bank entered into
the Twenty-third Supplementary Capital Funds Agreement
(substantially in the form of this Agreement) dated as of
January 11, 1991 ("Twenty-third Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
First Amendment to Reimbursement Agreement, dated as of
January 11, 1991 ("First Amendment to Reimbursement Agreement")
(the Reimbursement Agreement, as amended by the First Amendment
to Reimbursement Agreement, is herein called the "First Amended
Reimbursement Agreement") that provided, among other things, (i)
for the issuance by The Bank of Tokyo, Ltd., Los Angeles Agency
(the "Funding Bank"), for the account of the Company, of
irrevocable transferable letters of credit ("1991 LOCs") to the
Owner Participants to secure certain obligations of the Company
to the Owner Participants, such 1991 LOCs to be substantially in
the form of Exhibit A to the First Amended Reimbursement
Agreement with maximum amounts of $116,601,440 and $29,150,360;
(ii) for the reimbursement to the Funding Bank by the banks named
in the First Amended Reimbursement Agreement (the "Participating
Banks") for all drafts paid by the Funding Bank under any 1991
LOC; and (iii) for the reimbursement by the Company to the
Funding Bank for the benefit of the Participating Banks of sums
equal to all drafts paid by the Funding Bank under any 1991 LOC.
M. Entergy, the Company and Chemical Bank entered into
the Twenty-eighth Supplementary Capital Funds Agreement
(substantially in the form of this Agreement), dated as of
December 17, 1993 ("Twenty-eighth Supplementary Capital Funds
Agreement") in connection with the execution and delivery of the
Second Amendment to Reimbursement Agreement, dated as of
December 17, 1993 ("Second Amendment to Reimbursement Agreement")
(the First Amended Reimbursement Agreement, as amended by the
Second Amendment to Reimbursement Agreement, is herein called the
"Second Amended Reimbursement Agreement") that provided, among
other things, (i) for the issuance by the Funding Bank, for the
account of the Company, of irrevocable transferable letters of
credit ("1993 LOCs") to the Owner Participants to secure certain
obligations of the Company to the Owner Participants, such 1993
LOCs to be substantially in the form of Exhibit A to the Second
Amended Reimbursement Agreement with maximum amounts of
$132,131,960 and $33,032,990 (subsequently reduced to
$32,205,291); (ii) for the reimbursement to the Funding Bank by
the Participating Banks for all drafts paid by the Funding Bank
under any 1993 LOC; and (iii) for the reimbursement by the
Company to the Funding Bank for the benefit of the Participating
Banks of sums equal to all drafts paid by the Funding Bank under
any 1993 LOC.
N. The Company seeks to refinance that part of the
capital costs related to the Project heretofore financed with the
proceeds of the Series ___ Bonds and, to that end, (i) the
Company has entered into [an Installment Sale Agreement], dated
as of ______________ (the "[Installment Sale Agreement]"),
between Claiborne County, Mississippi, a public body, politic and
corporate and a political subdivision of the State of Mississippi
(the "Issuer") and the Company, [pursuant to which the Issuer
proposes to acquire from, and reconvey to, the Company a project
consisting of the Company's interest in certain pollution control
facilities relating to the Project]; (ii) the Issuer proposes to
refinance a portion of the cost of acquiring, improving and
installing [such] [certain] pollution control facilities by the
issuance, pursuant to a trust indenture dated as of _____________
(the "Trust Indenture") naming Deposit Guaranty National Bank as
trustee of up to $______________ aggregate principal amount of
the Issuer's Pollution Control Revenue Refunding Bonds (System
Energy Resources, Inc. Project) Series __ (the "Bonds") to
various purchasers; and to evidence and secure, in part, the
obligation of the Company concerning the payment of the
principal, premium, if any, and interest on the Bonds, the
Company has provided for the issuance of $______________
aggregate principal amount of First Mortgage Bonds, due _____
(the "First Mortgage Bonds") which are equal to the principal
amount of the Bonds and [_______] twelfths ([_____]/12) of the
amount of the [maximum] annual interest requirement of the Bonds
at their [maximum] stated rate. The First Mortgage Bonds will
mature upon the stated maturity date of the Bonds. The First
Mortgage Bonds are to be issued under and secured pursuant to the
Indenture as heretofore supplemented and as further supplemented
by a _________ Supplemental Indenture, dated as of _____________
(the "______ Supplemental Indenture"). The First Mortgage Bonds
will be registered in the name of the Issuer Trustee as the sole
holder of the First Mortgage Bonds.
O. By written assumption dated as of December 31,
1993, Entergy Corporation, a Delaware corporation, assumed all
obligations and liabilities of Entergy Corporation, a Florida
corporation, under the Capital Funds Agreement, as supplemented,
pursuant to and as permitted by the terms of the supplements
thereto.
P. The Company and Entergy, by this instrument, wish
(i) to continue to supplement their undertakings under the
Capital Funds Agreement for the benefit of the Issuer Trustee, as
trustee for the holders of the Bonds, and the Trustees, for the
benefit of the Issuer Trustee as sole holder of the First
Mortgage Bonds, and (ii) to create enforceable rights hereunder
in the Issuer Trustee and the Trustees as hereinafter set forth.
Q. The Company, Entergy and certain other subsidiaries
of Entergy have joined in an Application-Declaration on Form U-1,
as amended and supplemented to date, in File No. 70-_____, filed
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935 with respect to this
Agreement and certain other matters, the Securities and Exchange
Commission has issued orders (the "SEC Orders") granting and
permitting to become effective said Application-Declaration, as
so amended and supplemented, and the SEC Orders are in full force
and effect on the date of the execution and delivery hereof.
R. All things necessary to make this Agreement the
valid, legally binding and enforceable obligation of each of the
parties hereto have been done and performed and the execution and
performance hereof in all respects have been authorized and
approved by all corporate and shareholder action necessary on the
part of each thereof.
NOW, THEREFORE, in consideration of the terms and
agreements hereinafter set forth, the parties agree with each
other as follows:
ARTICLE I.
Obligations of Entergy and the Company.
1.1. Commercial Operation of the Project. The Company
shall (and Entergy shall cause the Company to) use its best
efforts to maintain the Project in commercial operation and, in
connection therewith, take all such action, including, without
limitation, all actions before governmental authorities, as shall
be necessary to enable the Company to do so.
1.2. Capital Structure of the Company. Entergy shall
supply or cause to be supplied to the Company:
(a) such amounts of capital as may be required from
time to time by the Company in order to maintain that portion of
the Capitalization (as defined in Section 1.6 hereof) of the
Company as shall be represented by the aggregate of the par value
of, or stated capital represented by, the outstanding shares of
all classes of capital stock and the surplus of the Company, paid
in, earned and other, if any, at an amount equal to at least 35%
of the Capitalization of the Company or at such higher percentage
as governmental regulatory authorities having jurisdiction in the
premises may require; and
(b) such amounts of capital in addition to (i) the
capital heretofore made available to the Company by Entergy in
exchange for shares of the Company's common stock and (ii) the
capital made available to the Company at any time in question
through the incurrence by the Company of Indebtedness for
Borrowed Money (as defined in Section 1.6 hereof) as shall be
required in order for the Company to continue to own its
undivided ownership interest in the Project, to provide (without
limitation) for interest charges of the Company, to permit the
commercial operation of Unit No. 1, to permit the continuation of
such commercial operation and to pay in full all payments of the
principal of, and premium, if any, and interest on Indebtedness
for Borrowed Money, as defined in Section 1.6 hereof (whether due
at maturity, pursuant to mandatory or optional prepayment, by
acceleration or otherwise), it being understood and agreed that,
in connection with the capital requirements of the Company,
nuclear fuel leasing (including financing leases therefor) and
the entering into by the Company of industrial development
revenue bond financing with respect to pollution control
facilities and the issuance and sale by the Company of debt
securities, and, to the extent necessary or desirable, preferred
stock, to banks, institutions and the public may constitute some
of the means by which required capital can be made available to
the Company.
1.3. Manner of Performance. If, with respect to any
amount of capital which Entergy shall, at any time in question,
be obligated under the provisions of Section 1.2 to supply or
cause to be supplied to the Company, Entergy and the Company
shall fail to agree on the type, or terms, of any particular
security to be issued by the Company and sold to Entergy or to
others for the purpose of securing such required capital or if
requisite regulatory approvals are not obtained for any issuance
and sale so agreed upon or if such issuance and sale cannot for
any other reason be carried out, then and in such event, Entergy
shall supply such capital to the Company in the form of a cash
capital contribution.
1.4. Payments in Respect of the Bonds and the First
Mortgage Bonds. If at any time the Company shall require funds
to pay (i) the interest (including, if and to the extent
permitted by law, interest on overdue principal, premium and
interest) and premium, if any, on, and the principal of, the
Bonds (whether at maturity, pursuant to mandatory or optional
prepayment, by acceleration or otherwise), (ii) upon the
acceleration of the Bonds following an occurrence of an Event of
Default (as defined in the Trust Indenture), the redemption price
of the First Mortgage Bonds, and (iii) the expenses, commitment
fees, financing charges, trustees' fees and administration
expenses attributable to the Bonds and the First Mortgage Bonds,
and the funds of the Company available for such purpose or
purposes shall be insufficient for any reason, including, without
limitation, the inability to borrow, or the absence of, funds
under any loan agreement or similar instrument or instruments to
which the Company is now or hereafter becomes a party, Entergy
will pay to the Company in cash as a capital contribution the
funds necessary to enable the Company to pay the amounts referred
to above in this Section 1.4.
1.5. Subordination of Claims of Entergy Against the
Company. Entergy hereby agrees that (i) all amounts advanced by
Entergy to the Company (other than by way of purchases of capital
stock of the Company or capital contributions to the Company)
shall, for the purposes of this Agreement and so long as this
Agreement shall be in full force and effect, constitute
Subordinated Indebtedness of the Company (as defined in Section
1.6 hereof) and (ii) no such Subordinated Indebtedness of the
Company shall be transferred or assigned (including by way of
security) to any person (other than to a successor of Entergy by
way of merger or consolidation or the acquisition by such person
of all or substantially all of Entergy's assets). The Company
agrees that it will record all Subordinated Indebtedness of the
Company as such on its books.
1.6. Definitions. For the purposes of this Agreement,
the following terms shall have the following meanings:
(a) the term "Capitalization" shall mean, as of any
particular time, an amount equal to the sum of the total
principal amount of all Indebtedness for Borrowed Money of the
Company (exclusive of Short Term Debt), secured or unsecured,
then outstanding, and the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all
classes of capital stock of the Company and the surplus of the
Company, paid in, earned and other, if any;
(b) the term "Indebtedness for Borrowed Money" shall
mean the principal amount of all indebtedness for borrowed money,
secured or unsecured, of the Company then outstanding and shall
include, without limitation, the principal amount of all bonds
issued by a governmental or industrial development agency or
authority in connection with an industrial development revenue
bond financing of pollution control facilities constituting part
of the Project;
(c) the term "Short Term Debt" shall mean the
principal amount of unsecured Indebtedness for Borrowed Money
created or incurred by the Company which matures by its terms not
more than 12 months after the date of the creation or incurrence
thereof, and which is not renewable or extendable at the option
of the Company for a period of more than 12 months from the date
of the creation or incurrence thereof pursuant to any revolving
credit or similar agreement; and
(d) the term "Subordinated Indebtedness of the
Company" shall mean indebtedness marked on the books of the
Company as subordinated and junior in right of payment to the
Obligations Secured Hereby (as defined in Section 5.1 hereof) to
the extent and in the manner set forth below:
(i) if there shall occur an Event of Default (as
defined in the Trust Indenture), then so long as such Event of
Default shall be continuing and shall not have been cured or
waived, or unless and until all the Obligations Secured Hereby
shall have been paid in full in money or money's worth at the
time of receipt, no payment of principal and premium, if any, or
interest shall be made upon Subordinated Indebtedness of the
Company; and
(ii) in the event of any insolvency, bankruptcy,
liquidation, reorganization or other similar case or proceedings,
or any receivership proceedings in connection therewith, relative
to the Company or its creditors or its property, and in the event
of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then the Obligations
Secured Hereby shall first be paid in full in money or money's
worth at the time of receipt, or payment thereof shall have been
provided for, before any payment on account of principal,
premium, if any, or interest is made upon Subordinated
Indebtedness of the Company.
ARTICLE II.
Nature of the Obligations of
Entergy and the Company
2.1. Regulatory Approvals.
(a) Except as provided in Section 2.2 with respect to
the obligations of Entergy to make cash capital contributions to
the Company pursuant to the provisions of Sections 1.3 and 1.4
(as to which the SEC Orders are in full force and effect at the
date of execution and delivery of this Agreement), the
performance of the obligations of Entergy hereunder shall be
subject to the receipt and continued effectiveness of all
authorizations of governmental regulatory authorities necessary
at the time to permit Entergy at the time to perform its duties
and obligations then to be performed hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental authorities necessary at the time to permit Entergy
at the time to supply or cause to be supplied to the Company
capital pursuant to the provisions of Section 1.2 or to permit
Entergy at the time to acquire securities issued and sold to
Entergy by the Company.
(b) The performance of the obligations of the Company
hereunder shall be subject to the receipt and continued
effectiveness of all authorizations of governmental regulatory
authorities at the time necessary to permit the Company to
perform its duties and obligations hereunder, including the
receipt and continued effectiveness of all authorizations of
governmental regulatory authorities at the time necessary to
permit the Company to operate the Project (or to have the Project
operated for it) to the extent the Project is then operable, and
to issue and to sell securities then to be issued and sold by the
Company to Entergy or to others for the purpose of securing
required capital.
(c) Entergy and the Company shall use their best
efforts to secure and maintain all such authorizations of
governmental regulatory authorities.
2.2. Nature of Obligations. The obligations of
Entergy hereunder to make cash capital contributions to the
Company pursuant to the provisions of Sections 1.3 and 1.4 having
heretofore been authorized by the SEC Orders (and no other
authorization by any governmental regulatory authority being
required) and the Issuer Trustee having relied on such
authorization in accepting the First Mortgage Bonds as security
for the Company's obligations, Entergy agrees that its duty to
perform such obligations shall be absolute and unconditional, (a)
whether or not Entergy shall have received all authorizations of
governmental regulatory authorities necessary at the time to
permit Entergy to perform its other duties and obligations
hereunder, (b) whether or not the Company shall have received all
authorizations of governmental regulatory authorities necessary
at the time to permit the Company to perform its duties and
obligations hereunder, (c) whether or not any authorizations
referred to in the foregoing clauses (a) and (b) continue, at the
time, in effect, (d) whether or not, at any time in question, the
Company shall have performed its duties and obligations under
this Agreement, (e) whether or not the Project shall be
maintained in commercial operation, energy from the Project is
being produced or delivered or is available (including, without
limitation, delivery or availability to other subsidiaries of
Entergy), an abandonment of the Project shall have occurred or
the Project shall be in whole or in part destroyed or taken, for
any reason whatsoever, (f) whether or not the Company shall be
solvent, (g) regardless of any event of force majeure and (h)
regardless of any other circumstance, happening, condition or
event whatsoever, whether or not similar to any of the foregoing.
Subject to Section 2.1(a), all other obligations of Entergy
hereunder are similarly absolute and unconditional.
(b) In the event that Entergy shall cease to own at
least a majority of common stock of the Company and such lower
ownership percentage has been permitted pursuant to the consent
of the Issuer Trustee and the Trustees, the obligations of
Entergy hereunder shall not be increased by any amendment to, or
modification of, the terms and provisions of the Indenture, the
Bonds, the ______ Supplemental Indenture or the First Mortgage
Bonds unless Entergy shall have consented in writing to such
amendment or modification.
2.3. Waivers of Defenses. The obligations of Entergy
under Sections 1.2, 1.3 and 1.4 to supply capital or cause
capital to be supplied or to make cash capital contributions to
the Company shall not be subject to any abatement, reduction,
limitation, impairment, termination, set-off, defense,
counterclaim or recoupment whatsoever or any right to any thereof
(including, but not limited to, abatements, reductions,
limitations, impairments, terminations, set-offs, defenses,
counterclaims and recoupments for or on account of any past,
present or future indebtedness of the Company to Entergy or any
claim by Entergy against the Company, whether or not arising
under this Agreement and whether or not arising out of any action
or nonaction on the part of the Company, the Issuer Trustee or
the Trustees (or either of them), including any disposition of
the Project or any part thereof pursuant to the Indenture,
requirements of governmental authorities, actions of judicial
receivers or trustees or otherwise and whether or not arising
from willful or negligent acts or omissions). The foregoing,
however, shall not, subject to the provisions of Section 1.5
hereof, affect in any other way any rights and remedies of
Entergy with respect to any amounts owed to Entergy by the
Company or any such claim by Entergy against the Company. The
obligations and liabilities of Entergy hereunder shall not be
released, discharged or in any way affected by any
reorganization, arrangement, compromise, composition or plan
affecting the Company or any change, waiver, extension,
indulgence or other action or omission in respect of any
indebtedness or obligation of the Company or Entergy, whether or
not the Company or Entergy shall have had any notice or knowledge
of any of the foregoing. Neither failure nor delay by the
Company, the Issuer Trustee or the Trustees (or either of them)
to exercise any right or remedy provided herein or by statute or
at law or in equity shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or remedy
preclude any other or further exercise thereof, or the exercise
of any other right or remedy. Entergy also hereby irrevocably
waives, to the extent that it may do so under applicable law, any
defense based on the adequacy of a remedy at law which may be
asserted as a bar to the remedy of specific performance in any
action brought against Entergy for specific performance of this
Agreement by the Company, by the Issuer Trustee or by the
Trustees (or either of them) or for their benefit by a receiver
or trustee appointed for the Company or in respect of all or a
substantial part of the Company's assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is or its
assets are subject. Anything in this Section 2.3 to the contrary
notwithstanding, Entergy shall not be precluded from asserting as
a defense against any claim made against Entergy upon any of its
obligations hereunder that it has fully performed such obligation
in accordance with the terms of this Agreement.
2.4. Subrogation, Etc. Entergy shall, subject to the
provisions of Section 1.5, be subrogated to all rights of the
Issuer Trustee and the Trustees against the Company in respect of
any amounts paid by Entergy pursuant to the provisions of this
Agreement and applied to the payment of the Obligations Secured
Hereby (as defined in Section 5.1 hereof). The Issuer Trustee
and the Trustees agree that they will not deal with the Company
in such a manner as to prejudice such rights of Entergy.
ARTICLE III.
Term
This Agreement shall remain in full force and effect
until, and shall terminate and be of no further force and effect
after, all Obligations Secured Hereby shall have been paid in
full in money or money's worth at the time of receipt. It is
agreed that all the covenants and undertakings on the part of
Entergy and the Company set forth in this Agreement are
exclusively for the benefit of, and may be enforced only by, the
Issuer Trustee or the Trustees (or either of them), or for their
benefit by a receiver or trustee for the Company or in respect of
all or a substantial part of its assets under the bankruptcy or
insolvency law of any jurisdiction to which the Company is or its
assets are subject.
ARTICLE IV.
Assignment
Neither this Agreement nor any interest herein may be
assigned, transferred or encumbered by any of the parties hereto,
except transfer or assignment by the Issuer Trustee or the
Trustees to their respective successors in accordance with
Section ____ of the Trust Indenture and Article XVII of the
Indenture, except as otherwise provided in Article V hereof and
except that:
(i) in the event that Entergy shall consolidate
with or merge with or into another corporation or shall transfer
to another corporation or other person all or substantially all
of its assets, this Agreement shall be transferred by Entergy to
and shall be binding upon the corporation resulting from such
consolidation or merger or the corporation or other person to
which such transfer is made and, as a condition to such
consolidation, merger or other transfer, such corporation or
other person shall deliver to the Company, the Issuer Trustee and
the Corporate Trustee a written assumption, in form and substance
satisfactory to the Issuer Trustee and the Corporate Trustee, of
Entergy's obligations and liabilities under this Agreement and an
opinion of counsel to the effect that such instrument complies
with the requirements hereof and constitutes a valid, legally
binding and enforceable obligation of such corporation or other
person; and
(ii) in the event that the Company shall
consolidate with or merge with or into another corporation or
shall transfer to another corporation or other person all or
substantially all of its assets, this Agreement shall be
transferred by the Company to and shall be binding upon the
corporation resulting from such consolidation or merger or the
corporation or other person to which such transfer is made and,
as a condition to such consolidation, merger or other transfer,
such corporation or other person shall deliver to the Issuer
Trustee and the Corporate Trustee a written assumption, in form
and substance satisfactory to the Issuer Trustee and the
Corporate Trustee, of the Company's obligations and liabilities
under this Agreement and an opinion of counsel to the effect that
such instrument complies with the requirements hereof and
constitutes a valid, legally binding and enforceable obligation
of such corporation or other person.
ARTICLE V.
Security Assignment and Agreement
5.1. Assignment and Creation of Security Interest. As
security for (i) the Bonds, (ii) upon the acceleration of the
Bonds following an occurrence of an Event of Default (as defined
in the Trust Indenture), the Company's obligation to redeem the
First Mortgage Bonds, and (iii) the due and punctual payment of
any other amounts which may become payable by the Company in
connection with the First Mortgage Bonds and the Bonds, together
in each case with all costs of collection thereof (all such
amounts referred to in the foregoing clauses (i), (ii) and
(iii) being hereinafter collectively referred to as "Obligations
Secured Hereby"), the Company hereby assigns to the Indenture
Trustee and the Trustees, and creates a security interest in
favor of the Indenture Trustee, for the benefit of the holders of
the Bonds, and the Trustees, for the benefit of the Indenture
Trustee as sole holder of the First Mortgage Bonds, in, (x) all
of the Company's rights to receive all moneys paid, or caused to
be paid, or to be paid or to be caused to be paid, to the Company
by Entergy pursuant to Section 1.4 of this Agreement, and (y) all
other claims, rights (but not obligations or duties), powers,
privileges, interests and remedies of the Company (including,
without limitation, all of the Company's rights to receive all
moneys paid, or caused to be paid, or to be paid, or to be caused
to be paid, to the Company by Entergy pursuant to Sections 1.2
and 1.3 of this Agreement), whether arising under this Agreement
or by statute or in law or in equity or otherwise, resulting from
any failure by Entergy to perform its obligations under this
Agreement, but so far as this clause (y) is concerned only to the
extent required for the payment when due and payable of the
Obligations Secured Hereby, together in each case with full power
and authority, in the name of the Indenture Trustee, the Trustees
(or either of the Trustees), or the Company as assignor, or
otherwise, to demand payment of, enforce, collect, receive and
receipt for any and all of the foregoing (the rights, claims,
powers, privileges, interests and remedies referred to in clause
(y) being hereinafter sometimes called the "Collateral").
5.2. Other Agreements.
(a) The Company will not assign the rights assigned in
clause (x) of Section 5.1 as security for any indebtedness other
than the Obligations Secured Hereby and will not assign the other
rights assigned in Section 5.1 as security for any indebtedness
other than the Obligations Secured Hereby, except as provided in
paragraph (b) of this Section 5.2.
(b) The Company has secured its Indebtedness for
Borrowed Money represented by (i) loans made by certain banks as
referred to in Whereas Clause C hereof by the First, Fourth,
Fifth and Eighth Supplementary Capital Funds Agreements, (ii) the
First Series Bonds, the Second Series Bonds, the Third Series
Bonds, the Fourth Series Bonds, the Seventh Series Bonds, the
Eighth Series Bonds, the Ninth Series Bonds, the Tenth Series
Bonds, the Eleventh Series Bonds, the Twelfth Series Bonds, the
Thirteenth Series Bonds, the Fourteenth Series Bonds, the
Fifteenth Series Bonds, the Sixteenth Series Bonds, and the
Seventeenth Series Bonds, as referred to in Whereas Clause D
hereof by the Second, Third, Eleventh, Thirteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first,
Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh and
Twenty-ninth Supplementary Capital Funds Agreements,
respectively, (iii) loans made by certain banks as referred to in
Whereas Clause E hereof by the Sixth and Seventh Supplementary
Capital Funds Agreements, respectively, (iv) the obligations
under the Series A Reimbursement Agreement as referred to in
Whereas Clause F hereof by the Ninth Supplementary Capital Funds
Agreement, (v) the obligations under the Series B Reimbursement
Agreement as referred to in Whereas Clause G hereof by the Tenth
Supplementary Capital Funds Agreement, (vi) the obligations under
the Series C Reimbursement Agreement as referred to in Whereas
Clause H hereof by the Twelfth Supplementary Capital Funds
Agreement, (vii) the Fifth Series Bonds as referred to in Whereas
Clause I hereof by the Fourteenth Supplementary Capital Funds
Agreement, (viii) the Sixth Series Bonds as referred to in
Whereas Clause J hereof by the Fifteenth Supplementary Capital
Funds Agreement, (ix) the obligations under the Reimbursement
Agreement as referred to in Whereas Clause K hereof by the
Twenty-second Supplementary Capital Funds Agreement, (x) the
obligations under the First Amended Reimbursement Agreement as
referred to in Whereas Clause L hereof by the Twenty-third
Supplementary Capital Funds Agreement, and (xi) the obligations
under the Second Amended Reimbursement Agreement as referred to
in Whereas Clause M hereof by the Twenty-eighth Supplementary
Capital Funds Agreement, and shall be entitled to secure the
interest and premium, if any, on, and the principal of, other
Indebtedness for Borrowed Money of the Company issued by the
Company to any person (except Entergy or any affiliate of
Entergy) to finance the cost of the Project (including, without
limitation, indebtedness outstanding under the Indenture) or to
refund (including any successive refundings) any such
Indebtedness issued for such purpose, the incurrence of which
Indebtedness is at the time permitted by the Indenture (herein
called "Additional Indebtedness"), by entering into a
supplementary capital funds agreement and assignment including,
without limitation, the First through ____________ Supplementary
Capital Funds Agreements (each being hereinafter called an
"Additional Supplementary Agreement") with the holders of such
Additional Indebtedness or representatives of or trustees for
such holders, or both, as the case may be (hereinafter called an
"Additional Assignee"). Each Additional Supplementary Agreement
shall be substantially in the form of this Agreement, except that
there shall be substituted in such Additional Supplementary
Agreement appropriate references to such Additional Indebtedness,
such Additional Assignee and the agreement or instrument under
which such Additional Indebtedness is issued in lieu of the
references herein to the Bonds and the First Mortgage Bonds, the
Issuer Trustee and the Trustees and the Trust Indenture and the
Indenture, respectively, and such Additional Supplementary
Agreement may contain such other provisions as are not
inconsistent with this Agreement and do not adversely affect the
rights hereunder of the Issuer Trustee or the Trustees (or either
of the Trustees).
(c) Notwithstanding any provision of this Agreement to
the contrary, or any priority in time of creation, attachment or
perfection of a security interest, pledge or lien by the Issuer
Trustee or the Trustees, or any provision of or filing or
recording under the Uniform Commercial Code or any other
applicable law of any jurisdiction, the Issuer Trustee and the
Trustees agree that the claims of the Issuer Trustee and the
Trustees under Sections 1.2 and 1.3 of this Agreement and any
security interest, pledge or lien in favor of the Issuer Trustee
and the Trustees now or hereafter existing in and to the
Collateral shall rank pari passu with the claims of each
Additional Assignee under the corresponding sections of the
Additional Supplementary Agreement to which it is a party and any
security interest, pledge or lien in favor of such Additional
Assignee thereunder now or hereafter existing in and to the
Collateral, irrespective of the time or times at which prior,
concurrent or subsequent Additional Supplementary Agreements are
entered into in accordance with Section 5.2(b) hereof.
5.3. Payments to the Issuer Trustee and the Corporate
Trustee. The Company agrees that, if and whenever it shall make
a demand to Entergy for any payment pursuant to Section 1.2, 1.3,
or 1.4 of this Agreement or pursuant to the corresponding
provisions of any Additional Supplementary Agreement, it will
separately identify the respective portions of such payment, if
any, required for (i) the payment of Obligations Secured Hereby
and (ii) the payment of any other amounts then due and payable in
respect of Additional Indebtedness and instruct Entergy (subject
to the provisions of Section 5.4) to pay or cause to be paid the
amount so identified as required for the payment of Obligations
Secured Hereby directly to the Issuer Trustee or, if all amounts
owed under the [Installment Sale Agreement] shall have been paid,
then to the Corporate Trustee. Any payments made or caused to be
made by Entergy pursuant to Section 1.2 or 1.3 of this Agreement
or pursuant to the corresponding provisions of any Additional
Supplementary Agreement shall, to the extent necessary to satisfy
in full the assignment set forth in Section 5.1 of this Agreement
and the corresponding assignments set forth in the Additional
Supplementary Agreements, be made pro rata in proportion to the
respective amounts secured by, and then due and owing under, such
assignments.
5.4. Payments to the Company. Notwithstanding the
provisions of Sections 5.1 and 5.3, unless and until the Issuer
Trustee or the Corporate Trustee shall have given written notice
to Entergy of the occurrence and continuance of any Event of
Default (as defined in the Trust Indenture) or any Default (as
defined in the Indenture), all moneys paid or to be paid to the
Company pursuant to Sections 1.2, 1.3 and 1.4 of this Agreement
shall be paid directly to the Company and the Company need not
separately identify the respective portions of payments as
provided in Section 5.3 hereof, provided that notice as to the
amount of any such payments or advances shall be given by the
Company to the Issuer Trustee and the Corporate Trustee
simultaneously with the demand by the Company for any such
payment. If the Issuer Trustee or the Corporate Trustee shall
have duly notified Entergy of the occurrence of any such Event of
Default or Default, such payments shall be made in the manner and
in the amounts specified in Section 5.3 hereof until the Issuer
Trustee or the Corporate Trustee shall by further notice to
Entergy give permission that all such payments may be made again
to the Company, such permission being subject to revocation by a
subsequent notice pursuant to the first sentence of this Section
5.4. The Issuer Trustee or the Corporate Trustee shall give such
permission if no such Default continues to exist.
5.5. Consent and Agreement of Entergy.
(a) Entergy hereby consents to the foregoing
assignment and agrees with the Issuer Trustee and the Trustees to
make payments to the Issuer Trustee and the Corporate Trustee in
the amounts and in the manner specified in Section 5.3 at, in the
case of the Issuer Trustee, the address set forth in Section 7.1,
and in the case of the Corporate Trustee, the principal corporate
trust office of the Corporate Trustee in New York City, New York,
which is presently located at 114 West 47th Street, New York, New
York 10036.
(b) Subject to the provisions of Section 2.4 hereof,
Entergy agrees that all payments made to the Issuer Trustee and
the Corporate Trustee or to the Company as contemplated by
Sections 5.3 and 5.4 shall be final as between Entergy and the
Issuer Trustee, the Corporate Trustee or the Company, as the case
may be, and that Entergy will not seek to recover from the Issuer
Trustee or the Corporate Trustee for any reason whatsoever any
moneys paid to the Issuer Trustee or the Corporate Trustee by
virtue of this Agreement, but the finality of any such payment
shall not prevent the recovery of any overpayments or mistaken
payments which may be made by Entergy unless an Event of Default
or a Default has occurred and is continuing, in which case any
such overpayment or mistaken payment shall not be recoverable but
shall constitute Subordinated Indebtedness of the Company to
Entergy.
ARTICLE VI.
Amendments
6.1. Restrictions on Amendments. This Agreement may
not be amended, waived, modified, discharged or otherwise changed
orally. It may be amended, waived, modified, discharged or
otherwise changed only by a written instrument which has been
signed by all the parties hereto and which has been approved by
the Issuer Trustee and the Trustees, or which is an amendment to
this Agreement as contemplated by Section ____ of the Trust
Indenture and Section 8.06 of the ______ Supplemental Indenture
and has, in accordance with the terms of said Section ____ of the
Trust Indenture and Section 8.06 of the _____ Supplemental
Indenture, been preconsented to by the Issuer Trustee, as sole
holder of the First Mortgage Bonds, and the holders of the Bonds;
provided that, certain amendments or modifications to this
Assignment must be approved by the holders of a majority in
aggregate principal amount of the Bonds then outstanding, as
provided for in said Section ____ of the Trust Indenture. The
Trustees shall, at the request of the Issuer Trustee, become a
party to any instrument amending, waiving, modifying, discharging
or otherwise changing this Agreement.
6.2. Issuer Trustee's and Trustees' Execution. The
Issuer Trustee and the Trustees shall, at the request of the
Company, execute any instrument amending, waiving, modifying,
discharging or otherwise changing this Agreement (a) as to which
the Issuer Trustee and the Corporate Trustee shall have received
an opinion of counsel to the effect that such instrument has been
duly authorized by Entergy and the Company and is permitted by
the provisions of Section 6.1 and that this Agreement, as
amended, waived, modified discharged or otherwise changed by such
instrument, constitutes valid, legally binding and enforceable
obligations of the Company and Entergy, and (b) which shall have
been executed by Entergy and the Company. The Issuer Trustee and
the Trustees (and each of the Trustees) shall be fully protected
in relying upon the aforesaid opinion.
ARTICLE VII.
Notices
7.1. Notices, Etc., in Writing. All notices,
consents, requests and other documents authorized or permitted to
be given pursuant to this Agreement shall be given in writing and
either personally served on the party to whom (or an officer of a
corporate party) it is given or mailed by registered or certified
first-class mail, postage prepaid, or sent by telex or telegram,
addressed as follows:
If to System Energy Resources, Inc., to:
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Treasurer
If to Entergy Corporation, to:
P.O. Box 61005
New Orleans, Louisiana 70161
Attention: Treasurer
If to the Corporate Trustee, to:
United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
Attention: Gerard F. Ganey
If to the Individual Trustee, to:
Gerard F. Ganey
c/o United States Trust Company
of New York
114 West 47th Street
New York, New York 10036
If to the Issuer Trustee, to:
Deposit Guaranty National Bank
One Deposit Guaranty Plaza
Jackson, Mississippi 39201
Attention: Corporate Trust Department
with copies to each party.
7.2. Delivery, Etc. Notices, consents, requests and
other documents shall be deemed given or served or submitted when
delivered or, if mailed as provided in Section 7.1 hereof, on the
third day after the day of mailing, or if sent by telex or
telegram, 24 hours after the time of dispatch. A party may
change its address for the receipt of notices, consents, requests
and other documents at any time by giving notice thereof to the
other parties. Any notice, consent, request or other document
given hereunder may be signed on behalf of any party by any duly
authorized representative of that party.
ARTICLE VIII.
Enforcement
8.1 Trust Indenture and Indenture Terms and
Conditions. The Issuer Trustee and the Trustees (and each of the
Trustees) enter into and accept this Agreement upon the terms and
conditions set forth in Article ____ of the Trust Indenture and
Article XVII of the Indenture, respectively, with the same force
and effect as if those terms and conditions were repeated at
length herein and made applicable to the Issuer Trustee and the
Trustees (and each of the Trustees), in respect of this Agreement
and the trusts hereunder and in respect of any action taken,
suffered or omitted to be taken by the Issuer Trustee and the
Trustees (or either of the Trustees) hereunder. Nothing in this
Agreement shall affect any right or remedy of the Company or
Entergy against the Issuer Trustee or the Trustees (or either of
the Trustees) (other than those specifically waived herein), for
breach or violation of any of the obligations or duties of the
Issuer Trustee or the Trustees assumed or undertaken in this
Agreement. Without limiting the generality of the foregoing, the
Issuer Trustee and the Trustees (and each of the Trustees) assume
no responsibility as to the validity or enforceability hereof or
for the correctness of the recitals of fact contained herein or
in the Capital Funds Agreement, which shall be taken as the
statements, representations and warranties of the Company and
Entergy.
8.2. Enforcement Action By Issuer Trustee and
Trustees. At any time the Issuer Trustee upon the request of the
holder or holders of not less than 25% of matured (whether by
stated maturity, acceleration or otherwise) Bonds which have not
been paid may proceed, either in its own name and as Issuer
Trustee or otherwise, to protect and enforce the rights of the
Issuer Trustee and the holders of the Bonds and those of the
Company under this Agreement by suit in equity, action at law or
other appropriate proceedings, whether for the specific
performance of any covenant or agreement contained herein or in
the Agreement or otherwise, and whether or not the Company shall
have complied with any of the provisions hereof or thereof or
proceeded to take any action authorized or permitted under
applicable law provided that the Issuer Trustee shall take no
such action until 60 days after receipt of such request during
which time such default in payment shall not be cured or no
inconsistent direction has been given to the Issuer Trustee by a
majority of the holders of the unpaid Bonds. Each and every
remedy of the Issuer Trustee shall, to the extent permitted by
law, be cumulative and shall be in addition to any other remedy
given hereunder or under the Trust Indenture or now or hereafter
existing at law or in equity or by statute. No holder of a Bond
shall have any right directly to enforce the security interests
granted by this Agreement. The Trustees, upon receiving notice
from the Issuer Trustee that the Issuer Trustee does not intend
to take the action contemplated by this Section 8.2, may proceed
in their, its or his own name to protect the rights of the
Trustees, or either of them, and those of the Company under this
Agreement by suit in equity, action at law or other appropriate
proceedings, whether for the specific performance of any covenant
or agreement contained in this Agreement or otherwise, and
whether or not the Company shall have complied with any of the
provisions hereof or proceeded to take any action authorized or
permitted under applicable law.
8.3. Attorney-in-Fact. The Company hereby constitutes
the Issuer Trustee and the Trustees (and each of the Trustees)
with authority to act without the other, its true and lawful
attorney, irrevocably, with full power (in such attorney's name
or otherwise), at any time when an Event of Default (as defined
in the Trust Indenture) or a Default (as defined in the
Indenture) has occurred and is continuing, to enforce any of the
obligations contained herein or to take any action or institute
any proceedings which to the Issuer Trustee or the Trustees (or
either of the Trustees) may seem necessary or advisable in the
premises.
ARTICLE IX.
Severability
If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
ARTICLE X.
Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE XI.
Succession
Subject to Article IV hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, but no assignment
hereof, or of any right to any funds due or to become due under
this Agreement, shall in any event relieve the Company or Entergy
of their respective obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
Entergy CORPORATION
By:
Name:
Title:
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Corporate Trustee
By:
Name:
Title:
GERARD F. GANEY,
as Individual Trustee
DEPOSIT GUARANTY NATIONAL BANK,
as Issuer Trustee
By:
Name:
Title:
Exhibit B-4
CLAIBORNE COUNTY, MISSISSIPPI
to
DEPOSIT GUARANTY NATIONAL BANK,
Trustee
___________________
TRUST INDENTURE
Dated as of May ___, 1995
___________________
Authorizing
Claiborne County, Mississippi
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Trust Indenture)
Page
PARTIES
RECITALS
GRANTING CLAUSE
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds
SECTION 2.02. Issuance of Bonds
SECTION 2.03. Form of Bonds
SECTION 2.04. Details, Execution and Payment
SECTION 2.05. Authentication; Exchange, Transfer and
Ownership of Bonds
SECTION 2.06. Delivery of Bonds; Application of Proceeds
SECTION 2.07. Temporary Bonds
SECTION 2.08. Mutilated, Destroyed or Lost Bonds
SECTION 2.09. Destruction of Bonds
SECTION 2.10 Book-Entry Only System
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices
SECTION 3.02. Notice of Redemption
SECTION 3.03. Effect of Call for Redemption
SECTION 3.04. Partial Redemption
SECTION 3.05. Funds in Trust; Unclaimed Funds
SECTION 3.06. Surrender of First Mortgage Bonds
SECTION 3.07. Satisfaction of First Mortgage Bonds
SECTION 3.08. Satisfaction and Surrender of Assignment
and Supplement
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal, Redemption Premium,
if any, and Interest
SECTION 4.02. Performance of Covenants; Issuer
SECTION 4.03. Instruments of Further Assurance; Liens
and Encumbrances
SECTION 4.04. Recordation
SECTION 4.05. Rights Under Agreement
SECTION 4.06. Prohibited Activities
SECTION 4.07. Notices of Trustee
SECTION 4.08. No Transfer of First Mortgage Bonds
Held by Trustee
SECTION 4.09. No Transfer of Assignment, Supplement
or Trustee's Interest in Underlying
Agreements
ARTICLE V
REVENUE AND FUNDS
SECTION 5.01. Source of Payment of Bonds
SECTION 5.02. Creation of Bond Fund
SECTION 5.03. Payments into the Bond Fund
SECTION 5.04. Use of Moneys in the Bond Fund
SECTION 5.05. Custody of the Bond Fund
SECTION 5.06. Non-presentment of Bonds
SECTION 5.07. Moneys to be Held in Trust
SECTION 5.08. Repayment to the Company from
Bond Fund
SECTION 5.09. Creation and Use of the Rebate Fund
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Moneys
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Indenture
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default
SECTION 8.02. Acceleration
SECTION 8.03. Other Remedies
SECTION 8.04. Legal Proceedings by Trustee
SECTION 8.05. Right of Bondholders to Direct
Proceedings
SECTION 8.06. Appointment of Receivers
SECTION 8.07. Waiver
SECTION 8.08. Application of Moneys
SECTION 8.09. Remedies Vested in the Trustee
SECTION 8.10. Rights and Remedies of Bondholders
SECTION 8.11. Termination of Proceedings
SECTION 8.12. Waivers of Events of Default
SECTION 8.13. Opportunity of Issuer and Company to
Cure Defaults Under Section 8.01(c);
Notice
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts
SECTION 9.02. Fees, Charges and Expenses of Trustee
SECTION 9.03. Notice to Bondholders if Default Occurs
SECTION 9.04. Intervention by Trustee
SECTION 9.05. Successor Trustee
SECTION 9.06. Resignation by Trustee
SECTION 9.07. Removal of Trustee
SECTION 9.08. Appointment of Successor Trustee by
the Bondholders; Temporary Trustee
SECTION 9.09. Concerning Any Successor Trustee
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company
SECTION 9.12. Voting of First Mortgage Bonds Held
by Trustee
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders
SECTION 10.02. Supplemental Indentures Requiring Consent
of Bondholders
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, etc., to Agreement Not
Requiring Consent of Bondholders
SECTION 11.02. Amendments, etc., to Agreement Requiring
Consent of Bondholders
SECTION 11.03. Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, etc., of Owners of Bonds
SECTION 12.02. Limitation of Rights
SECTION 12.03. Severability
SECTION 12.04. Notices
SECTION 12.05. Trustee as Paying Agent
SECTION 12.06. Payments Due on Sundays and Holidays
SECTION 12.07. Counterparts
SECTION 12.08. Applicable Provisions of Law
SECTION 12.09. Captions
SECTION 12.10. No Liability of Issuer
SIGNATURES
EXHIBITS
ACKNOWLEDGMENTS
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of May ____, 1995, made and
entered into by and between Claiborne County, Mississippi, a
public body corporate and politic and a political subdivision of
the State of Mississippi (the "Issuer"), and Deposit Guaranty
National Bank, a banking corporation duly organized, existing and
authorized to accept and execute trusts of the character herein
set out under the laws of the United States of America, with its
principal office in the City of Jackson, Mississippi, as trustee
(the "Trustee").
WITNESSETH:
WHEREAS, The Issuer is authorized and empowered by the
constitution and laws of the State of Mississippi, especially
Sections 49-17-101 through 49-17-123, Mississippi Code of 1972,
as amended (the "Pollution Control Act"), to acquire, purchase,
construct, enlarge, expand and improve facilities for
eliminating, mitigating, and/or preventing air and water
pollution, including solid waste disposal facilities, to issue
revenue bonds to defray the cost of such facilities, and to
execute an agreement with an industry (as defined in the
Pollution Control Act) for the sale of such facilities to such
industry; and
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the Issuer has heretofore on
July 24, 1985, issued $44,000,000 principal amount of Claiborne
County, Mississippi, Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series D (the "Prior Bonds"),
pursuant to an Indenture of Trust dated as of June 15, 1985,
between Claiborne County and Deposit Guaranty National Bank, as
trustee (the "Prior Indenture"); $44,000,000 principal amount of
the Prior Bonds remain outstanding; and
WHEREAS, The Prior Bonds were issued to defray the cost of
acquiring an undivided 90% interest (the "Project) in certain
solid waste disposal facilities and water pollution control
facilities (the "Facilities") at the Grand Gulf Nuclear Station
(the "Plant"), a nuclear electric generating plant located within
Claiborne County, Mississippi, on Bald Hill Road approximately
six to seven miles northwest of the City of Port Gibson,
Mississippi; the Project was sold by the Issuer to Middle South
Energy, Inc., now known as System Energy Resources, Inc. (the
"Company"), pursuant to an Installment Sale Agreement dated as of
June 15, 1985, between the Issuer and the Company (the "Prior
Agreement"); the Company is an "industry" as defined in the
Pollution Control Act and is the owner of the Project; Entergy
Operations, Inc., an affiliate of the Company, operates the Plant
and the Facilities; and
WHEREAS, the Issuer is authorized by Sections 31-15-21
through 31-15-27, Mississippi Code of 1972, as amended (the
"Act") to issue revenue refunding bonds, the proceeds of which
may be used, together with other funds to be made available
therefor, to refund the outstanding Prior Bonds; and
WHEREAS, at the request of the Company, and pursuant to the
Act, a resolution duly adopted by the Issuer on April 3, 1995
(the "Issuing Resolution") and this Indenture, the Issuer has
authorized the issuance of its Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 in the aggregate principal amount of $44,000,000 (the
"Bonds") for the purpose of providing funds that, together with
other funds to be made available therefor by the Company, will be
used to refund all outstanding Prior Bonds, including the payment
of any redemption premium due or to become due thereon, interest
to accrue to the selected redemption date, and all expenses in
connection with such refunding; and
WHEREAS, pursuant to an Amended and Restated Installment
Sale Agreement between the Issuer and the Company dated as of
_________, 1995 (the "Agreement"), the Issuer and the Company
have confirmed the sale of the Project by the Issuer to the
Company and agreed that the Issuer will lend the proceeds of the
Bonds to the Company to be applied, together with other funds to
be made available by the Company, to refund the Prior Bonds; and
WHEREAS, the principal of and the premium, if any, and
interest on the Bonds shall be payable solely out of and secured
by an irrevocable pledge of the Revenues and Receipts of the
Issuer under the Agreement (hereinafter defined) and any other
sums which may be received by the Issuer from or in connection
with the issuance of the Bonds and the sale of the Project to the
Company that are part of the Trust Estate (hereinafter defined)
under this Indenture; the Bonds and the premium, if any, and
interest thereon shall never constitute an indebtedness of the
Issuer within the meaning of any constitutional provision or
statutory limitation of the State and shall never constitute or
give rise to a pecuniary liability of the Issuer or a charge
against the general credit or taxing powers of the Issuer, the
State or any political subdivision thereof; and
WHEREAS, the Bonds, the Trustee's Certificate of
Authentication and Clerk's Validation Certificate are to be in
substantially the form set out in Exhibit A hereto, with
appropriate variations, omissions and insertions as permitted or
required by this Indenture; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as provided in this
Indenture, the valid, binding and legal limited obligations of
the Issuer according to the terms thereof, and to constitute this
Indenture a valid assignment and pledge of the rights of the
Issuer in and to the Revenues and Receipts of the Issuer under
the Agreement and the Trust Estate for the payment of the
principal of and the redemption premium, if any, and interest on
the Bonds, and a valid grant of security interest in the trust
funds created and held hereunder, have been done and performed,
and the creation, execution and delivery of this Indenture, and
the creation, execution and issuance of the Bonds, subject to the
terms hereof, have in all respects been duly authorized.
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and of the purchase and acceptance
of the Bonds by the Owners (as hereinafter defined) thereof and
of the sum of One Dollar ($1.00) lawful money of the United
States of America, to it duly paid by the Trustee at or before
the execution and delivery of these presents, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds at
any time Outstanding under this Indenture according to their
tenor and effect, and the performance and observance by the
Issuer of all the covenants and conditions expressed or implied
herein and contained in the Bonds, the Issuer has caused or will
cause the Company to deliver to the Trustee [the Assignment, the
Supplement and the First Mortgage Bonds], and the Issuer does
hereby grant, bargain, sell, convey, mortgage, pledge and assign
to the Trustee, its successors in trust and their assigns
forever, and does hereby create a security interest in favor of
the Trustee in, the Trust Estate;
TO HAVE AND TO HOLD all the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee, its successors in trust and their
assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
Owners of the Bonds issued under and secured by this Indenture
without preference, priority or distinction as to lien of any
Bonds over any other Bonds.
PROVIDED, HOWEVER, that if, after the right, title and
interest of the Trustee in and to the Trust Estate shall have
ceased, terminated and become void in accordance with Article VII
hereof and the principal of and premium, if any, and interest on
the Bonds shall have been paid to the Owners thereof, then and in
that case the estate and rights hereby granted shall cease,
determine and be void, and thereupon the Trustee shall cancel and
discharge this Indenture and execute and deliver to the Issuer
and the Company such instruments in writing as shall be requisite
to evidence the discharge hereof; otherwise this Indenture to be
and remain in full force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured hereunder
are to be issued, authenticated and delivered, and the Trust
Estate and the other estate and rights hereby granted are to be
dealt with and disposed of, under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and
purposes hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant, with the Trustee
and with the respective Owners, from time to time, of the Bonds,
as follows:
ARTICLE
DEFINITIONS
Definitions. In addition to the words and terms
elsewhere defined in this Indenture or in the Agreement, the
following words and terms as used in this Indenture shall have
the following meanings unless the context or use indicates
another or different meaning:
"Act" shall mean Sections 31-15-21 through 31-15-27,
Mississippi Code of 1972, as amended.
"Administration Expenses" shall mean the reasonable expenses
incurred by the Issuer with respect to the Agreement, this
Indenture and any transaction or event contemplated by the
Agreement or this Indenture, including the fee of its counsel and
the compensation and reimbursement of expenses and advances
payable to the Trustee, the Paying Agent and the Bond Registrar.
"Agreement" shall mean the Amended and Restated Installment
Sale Agreement between the Issuer and the Company dated as of
May __, 1995, relating to the Project, pursuant to which the
Issuer shall lend the principal proceeds of the Bonds to the
Company to be used to refund the Prior Bonds, and any and all
modifications, alterations, amendments and supplements thereto.
["Assignment" shall mean the Thirtieth Assignment of
Availability Agreement, Consent and Agreement between the
Company, the System Companies, the Trustee and the Mortgage
Trustees.]
"Authorized Company Representative" shall mean each person
at the time designated to act on behalf of the Company by written
certificate furnished to the Issuer and the Trustee containing
the specimen signature of such person and signed on behalf of the
Company by its President, any Vice President, its Treasurer or
its Secretary together with any Assistant Secretary.
["Availability Agreement" shall mean the Availability
Agreement dated as of June 21, 1974, as amended from time to
time, among the Company, the System Companies and Arkansas-
Missouri Power Company.]
"Board of Supervisors" shall mean the Board of Supervisors
of Claiborne County, Mississippi, the governing body of the
Issuer.
"Bond Counsel" shall mean any firm of nationally recognized
bond counsel selected by the Company and acceptable to the
Trustee.
"Bond Fund" shall mean the fund created by Section 5.02
hereof.
"Bond or Bonds" shall mean the $44,000,000 in aggregate
principal amount of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 authorized to be issued under this Indenture.
"Bond Registrar" shall mean the registrar appointed in
accordance with Section 2.05 hereof. "Principal Office" of the
Bond Registrar shall mean the office thereof designated in
writing to the Issuer and the Trustee.
[Capital Funds Agreement" shall mean the Capital Funds
Agreement dated as of June 21, 1974, as it may be amended from
time to time, between Middle South Utilities, Inc. and the
Company.]
"Clerk" shall mean the Clerk of the Governing Body.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Each reference to a section of the Code herein shall be
deemed to include the Internal Revenue Code of 1954, as amended
and in effect prior to enactment of the Tax Reform Act of 1986,
and the United States Treasury Regulations proposed or adopted
thereunder, as the same may be in effect from time to time, to
the extent the same are applicable to the Bonds or the use of
proceeds thereof, unless the context clearly requires otherwise.
"Company" shall mean System Energy Resources, Inc., a corpora
tion organized and existing under the laws of the State of
Arkansas and duly qualified to do business as a foreign corpora
tion in the State of Mississippi, its successors and their
assigns.
"Company Mortgage" shall mean the Mortgage and Deed of Trust,
dated as of June 15, 1977, between the Company and the Mortgage
Trustees, as heretofore and hereafter amended and supplemented
or, in the event that such Mortgage and Deed of Trust should not
be in effect, any similar mortgage providing for a first mortgage
lien on substantially all of the property of the Company.
"Entergy" shall mean Entergy Corporation, a Delaware
corporation, successor to Middle South Utilities, Inc.
"Event of Default" shall mean any event of default specified
in Section 8.01 hereof.
"Facilities" shall mean the real and personal properties,
facilities, machinery and equipment currently existing at the
Plant which are described in Exhibit A to the Agreement, as
revised from time to time to reflect any changes therein,
additions thereto, substitutions therefor and deletions therefrom
permitted by the terms of the Agreement.
[ "First Mortgage Bonds" shall mean the First Mortgage Bonds,
Pollution Control Series ___, issued pursuant to the Twentieth
SERI Supplemental Indenture under the Company Mortgage in the
aggregate principal amount of $___________ and held by the
Trustee pursuant to Section 5.03 of the Agreement.]
"Governing Body" shall mean the Board of Supervisors of the
Issuer.
"Government Obligations" shall mean (a) direct or fully
guaranteed obligations of the United States of America (including
any such securities issued or held in book-entry form), and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations, or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" shall mean this Indenture of Trust between the
Issuer and the Trustee, and any and all modifications,
alterations, amendments and supplements thereto.
"Investment Securities" shall mean any of the following
obligations or securities which may be lawfully acquired under
the laws of the State of Mississippi on which neither the Company
nor the Issuer nor any of their respective affiliates or
subsidiaries is the obligor, contingently or otherwise, (a)
Government Obligations; (b) interest bearing deposit accounts
(which may be represented by certificates of deposit) in
national, state or foreign banks (which may include the Trustee,
the Paying Agent and the Bond Registrar) having a combined
capital and surplus of not less than $50,000,000; (c) bankers'
acceptances drawn on and accepted by commercial banks (which may
include the Trustee, the Paying Agent and the Bond Registrar)
having a combined capital and surplus of not less than
$50,000,000; (d)(i) direct obligations of, (ii) obligations the
principal of and interest on which are unconditionally guaranteed
by, and (iii) any other obligations, the interest on which is
excluded from gross income for purposes of federal income
taxation issued by, any State of the United States of America,
the District of Columbia or the Commonwealth of Puerto Rico, or
any political subdivision, agency, authority or other
instrumentality of any of the foregoing, which, in any case, are
rated by a nationally recognized rating agency in any of its
three highest Rating Categories; (e) obligations of any agency or
instrumentality of the United States of America; (f) commercial
or finance company paper which is rated by a nationally
recognized rating agency in any of its three highest Rating
Categories; and (g) corporate debt securities issued by cor
porations having debt securities rated by a nationally recognized
rating agency in any of its three highest Rating Categories.
"Issuer" shall mean Claiborne County, Mississippi, a politi
cal subdivision organized and existing under the Constitution and
laws of the State of Mississippi, its successors and their
assigns.
"Loan Repayment" shall mean the payments required to be made
by the Company pursuant to Section 5.02 of the Agreement.
["Mortgage Trustees" shall mean United States Trust Company
of New York and Gerald F. Ganey, successor to Malcolm J. Hood, as
trustees under the Company Mortgage.]
"Notice by Mail" or "notice" of any action or condition "by
Mail" shall mean a written notice meeting the requirements of
this Indenture mailed by first-class mail to the Owners of
specified registered Bonds, at the addresses shown in the
registration books maintained pursuant to Section 2.05 hereof.
"Notice by Publication" or "notice" of any action or condi
tion "by Publication" shall mean publication of a notice meeting
the requirements of this Indenture in a newspaper or financial
journal of general circulation in The City of New York, New York,
which carries financial news, is printed in the English language
and is customarily published on each business day; provided,
however, that any successive weekly or monthly publication of
notice required hereunder may be made, unless otherwise expressly
provided herein, on the same or different days of the week and in
the same or different newspapers or financial journals; and
provided, further, that if, because of the temporary or permanent
suspension of the publication or general circulation of any
newspaper or financial journal or for any other reason, it is
impossible or impracticable to publish such notice in the manner
herein described, then such publication in lieu thereof as shall
be made with the approval of the Trustee (or, if there be no
trustee hereunder, the Issuer) shall constitute a sufficient
publication of such notice.
"Outstanding," when used in reference to the Bonds shall
mean, as on any particular date, the aggregate of all Bonds
authenticated and delivered under this Indenture except:
(a) those cancelled on or prior to such date or delivered to
or acquired by the Trustee on or prior to such date for
cancellation;
(b) those deemed to be paid in accordance with Article VII of
this Indenture; and
(c) those in lieu of or in exchange or substitution for which
other Bonds shall have been authenticated and delivered pursuant
to this Indenture, unless proof satisfactory to the Trustee and
the Company is presented that such Bond is held by a bona fide
holder in due course.
"Owner" shall mean the person, which may be the Company, in
whose name any Bond is registered upon the registration books
maintained pursuant to Section 2.05 hereof.
"Paying Agent" shall mean the paying agent appointed in
accordance with Section 12.05 hereof. "Principal Office" of the
Paying Agent shall mean the office thereof designated in writing
to the Trustee.
"Plant" shall mean the Grand Gulf Nuclear Station located
within the geographical limits of the Issuer on Bald Hill Road
approximately six to seven miles northwest of the City of Port
Gibson, Mississippi, in Claiborne County, Mississippi.
"President" shall mean the President of the Governing Body.
"Project" shall mean the undivided 90% interest in the
Facilities owned by the Company.
"Rating Category" shall mean a generic securities rating
category, without regard to any refinement or gradation of such
rating category by a numerical modifier or otherwise.
"Revenues and Receipts of the Issuer under the Agreement"
shall mean all moneys paid or payable to the Trustee, for the
account of the Issuer in respect of the Loan Repayment and
payments pursuant to Section 9.01 of the Agreement, and all
receipts of the Trustee which, under the provisions of this
Indenture, reduce the amount of such payments.
["SERI Bonds" shall mean all first mortgage bonds issued and
delivered under the Company Mortgage.]
["SERI Supplemental Indenture" shall mean the Twentieth
Supplemental Indenture relating to the First Mortgage Bonds to
the Company Mortgage dated as of ____________, 1995.]
"State" shall mean the State of Mississippi.
["Supplement" shall mean the Thirtieth Supplementary Capital
Funds Agreement and Assignment among the Company, Entergy, the
Trustee and the Mortgage Trustees.]
"Supplemental Agreement" shall mean any agreement between the
Issuer and the Company modifying, altering, amending or
supplementing the Agreement, in accordance with the terms hereof
and of the Agreement.
"Supplemental Indenture" shall mean any indenture of the
Issuer modifying, altering, amending, supplementing or confirming
this Indenture for any purpose, in accordance with the terms
hereof.
"System Companies" shall mean: Arkansas Power & Light
Company, Louisiana Power & Light Company, Mississippi Power &
Light Company and New Orleans Public Service, Inc.
"Trust Estate" shall mean at any particular time all right,
title and interest of the Issuer in and to: (a) the Agreement
(except its rights under Sections 5.05, 5.06, 5.07, 6.03 and 8.05
thereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications thereunder), including without limitation the Loan
Repayment and any other Revenues and Receipts of the Issuer under
the Agreement; (b) [the First Mortgage Bonds]; (c) [the
Assignment and the Supplement, and all proceeds therefrom;] and
(d) all moneys and obligations (other than Bonds) which at such
time are deposited or are required to be deposited with, or are
held or are required to be held by or on behalf of, the Trustee
in trust under any of the provisions of this Indenture,
including, without limitation, all amounts, deposits or
securities and titles and interests which at such time are
subject to the lien of this Indenture, except for moneys or
obligations deposited with or paid to the Trustee for the
redemption or payment of Bonds which are deemed to have been paid
in accordance with Article VII hereof and the Rebate Fund created
under Section 5.09 hereof.
"Trustee" shall mean Deposit Guaranty National Bank, Jackson,
Mississippi, as trustee under this Indenture, its successors in
trust and their assigns.
ARTICLE
THE BONDS
Authorized Amount of Bonds. No Bonds may be issued under
the provisions of this Indenture except in accordance with this
Article II.
Issuance of Bonds. There shall be issued under and secured
by this Indenture Bonds of the Issuer in the aggregate principal
amount of Forty-Four Million Dollars ($44,000,000) for the
purpose of providing funds, which, together with other funds made
available therefor by the Company, shall be used to refund all of
the outstanding Prior Bonds. The Bonds shall be designated
"Claiborne County, Mississippi, Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995," shall be dated the ____ day of May, 1995 (or as otherwise
provided in this Indenture), shall bear interest from the date
determined pursuant to Section 2.04 hereof at the rate of ____
per centum (__%) per annum, which interest shall be payable on
the ____ day of _______ and _______ of each year commencing
____________, 1995, until the principal sum is paid or duly
provided for, and shall thereupon be stated to mature, subject to
the right of prior redemption as set forth in Section 3.01
hereof, at any time, on or after ____________, 20__.
The Bonds are limited obligations of the Issuer; the
principal of and the premium, if any, and interest on the Bonds
shall be payable solely out of and secured by an irrevocable
pledge of the Revenues and Receipts of the Issuer under the
Agreement and any other sums which may be received by the Issuer
from or in connection with the issuance of the Bonds and the sale
of the Project to the Company that are a part of the Trust Estate
under the Indenture. The Bonds and the premium, if any, and
interest thereon shall never constitute an indebtedness of the
Issuer within the meaning of any constitutional provision or
statutory limitation of the State and shall never constitute or
give rise to a pecuniary liability of the Issuer or a charge
against the general credit or taxing powers of the Issuer, the
State, or any political subdivision thereof.
Form of Bonds. The Bonds are issuable as fully registered
Bonds in denominations of $5,000 or any integral multiple
thereof. The Bonds shall be substantially in the form set forth
in Exhibit A hereto, with such appropriate variations, omissions
and insertions as are permitted or required by this Indenture,
and may have endorsed thereon such legends or text as may be
necessary or appropriate to conform to any applicable rules and
regulations of any governmental authority or any usage or
requirement of law with respect thereto.
Details, Execution and Payment. Each Bond shall bear
interest from the interest payment date next preceding the date
on which it is authenticated, unless authenticated prior to
________, 1995, in which event it shall bear interest from
________, 1995, and unless authenticated upon an interest payment
date, in which case it shall bear interest from such interest
payment date; provided, however, that if at the time of
authentication of any Bond interest is in default, such Bond
shall bear interest from the date to which interest has been
paid.
The Bonds shall be executed by the manual or facsimile
signature of the President of the Board of Supervisors of the
Issuer and the seal of the Issuer shall be affixed, impressed,
imprinted or otherwise reproduced thereon and attested by the
manual or facsimile signature of the Clerk of said Board of
Supervisors.
In case any officer whose signature or facsimile signature
shall appear on any Bonds shall cease to be such officer before
the delivery of such Bonds, such signature or such facsimile
shall nevertheless be valid and sufficient for all purposes the
same as if he had remained in office until such delivery, and
also any Bond may be signed by or bear the facsimile signature of
such persons as at the actual time of the execution of such Bond
shall be the proper officers to sign such Bond although at the
date of such Bond such persons may not have been such officers.
The principal of, redemption premium, if any, and the
interest on the Bonds shall be payable in any coin or currency of
the United States of America which on the respective dates of
payment thereof is legal tender for the payment of public and
private debts. The principal of and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee, and payment of the interest on each Bond shall be made
by the Trustee on each interest payment date to the person
appearing on the registration books of the Issuer hereinafter
provided for as the registered Owner thereof on the fifteenth day
of the month preceding such interest payment date, by check in
clearinghouse funds mailed to such registered Owner at his
address as it appears on such registration books. Payment of the
principal of all Bonds shall be made upon the presentation and
surrender of such Bonds as the same shall become due and payable.
Authentication; Exchange, Transfer and Ownership of Bonds.
Only such of the Bonds as shall have endorsed thereon a
certificate of authentication substantially in the form
hereinabove set forth, duly executed by the Trustee, shall be
entitled to any benefit or security under this Indenture. No
Bond shall be valid or obligatory for any purpose unless and
until such certificate of authentication shall have been duly
executed by the Trustee, and such certificate of the Trustee upon
any such Bond shall be conclusive evidence that such Bond has
been duly authenticated and delivered under this Indenture. The
Trustee's certificate of authentication on any Bond shall be
deemed to have been duly executed if signed by an authorized
officer of the Trustee, but it shall not be necessary that the
same officer sign the certificate of authentication on all of the
Bonds that may be issued hereunder at any one time.
Subject to the provisions of Section 2.10 hereof:
Bonds, upon surrender thereof at the principal
office of the Trustee, together with an assignment duly executed
by the registered Owner or his attorney or legal representative
in such form as shall be satisfactory to the Trustee, may, at the
option of the registered Owner thereof, be exchanged for an equal
aggregate principal amount of Bonds, of any denomination or
denominations authorized by this Indenture, and in the same form
as the Bonds surrendered for exchange.
The Issuer hereby authorizes the exchange of Bonds
at the principal office of the Trustee.
The Trustee is hereby appointed as Bond Registrar
and as such shall keep books for the registration and for the
transfer of Bonds as provided in this Indenture.
Any Bond may be transferred only upon the books
kept for the registration and transfer of Bonds upon surrender
thereof to the Bond Registrar together with an assignment duly
executed by the registered Owner or his attorney or legal
representative in such form as shall be satisfactory to the Bond
Registrar. Upon any such transfer the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange for such
Bond a new Bond or Bonds, registered in the name of the
transferee, of any denomination or denominations authorized by
this Indenture in an aggregate principal amount equal to the
principal amount of such Bond.
In all cases in which Bonds shall be exchanged or
Bonds shall be transferred hereunder, the Issuer shall execute
and the Trustee shall authenticate and deliver at the earliest
practicable time Bonds in accordance with the provisions of this
Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee. Such
transfers of registration or exchanges of Bonds shall be without
charge to holders of such Bonds, but any taxes or other
governmental charge required to be paid with respect to such
exchange or transfer shall be paid by the holder of the Bond, and
such charge shall be paid before any such new Bond shall be
delivered. Neither the Issuer nor the Trustee shall be required
to make any such exchange or transfer of Bonds during the fifteen
(15) days immediately preceding the selection of Bonds for such
redemption or after such Bonds or any portion thereof has been
selected for redemption.
Any registered Owner of any Bond is hereby granted
power to transfer absolute title thereto by assignment thereof to
a bona fide purchaser for value (present or antecedent) without
notice of prior defenses or equities or claims of ownership
enforceable against his assignor or any person in the chain of
title and before the maturity of such Bond. Every prior holder
or Owner of any Bond shall be deemed to have waived and renounced
all of his equities or rights therein in favor of every such bona
fide purchaser, and every such bona fide purchaser shall acquire
absolute title thereto and to all rights represented thereby.
At reasonable times and under reasonable
regulations established by the Trustee, the list of registered
Owners of the Bonds may be inspected and copied by the Company or
by holders or Owners (or a designated representative thereof) of
ten per centum (10%) or more in principal amount of Bonds then
Outstanding, such possession or ownership and the authority of
such designated representative to be evidenced to the
satisfaction of the Trustee.
Delivery of Bonds; Application of Proceeds. Upon the
execution and delivery of this Indenture, the Issuer shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver them to the purchasers thereof
as directed by the Issuer as hereinafter in this Section 2.06
provided.
Prior to the delivery by the Trustee of the Bonds there
shall be filed with the Trustee:
A copy, certified by the Clerk, of the resolution
adopted by the Governing Body authorizing the execution and
delivery of the Agreement and this Indenture and the issuance of
the Bonds.
An original duly executed counterpart of the
Agreement and an original duly executed counterpart of this
Indenture.
A request and authorization to the Trustee on
behalf of the Issuer, signed by the President, to authenticate
and deliver the Bonds to the purchasers therein identified upon
payment to the Trustee but for the account of the Issuer, of a
sum specified in such request and authorization. The proceeds of
such payment shall be paid over to the Trustee; and deposited or
transferred as follows:
(i) To the Trustee for deposit in the Bond Fund, a sum
equal to the accrued interest, if any, paid by the
original purchasers of the Bonds; and
(ii) To the trustee for the Prior Bonds, the balance of
such proceeds.
Temporary Bonds. Until definitive Bonds are ready for
delivery, there may be executed, and upon request of the Issuer
the Trustee shall authenticate and deliver, in lieu of definitive
Bonds and subject to the same limitations and conditions,
temporary printed, engraved, lithographed or typewritten Bonds,
in denominations of $5,000 or any multiple thereof, as the Issuer
may designate, and with such appropriate omissions, insertions
and variations as may be required.
If temporary Bonds shall be issued, the Issuer shall cause
the definitive Bonds to be prepared and to be executed and
delivered to the Trustee, and the Trustee, upon presentation to
it at its principal office of any temporary Bond, shall cancel
the same and authenticate and deliver in exchange therefor at the
principal office of the Trustee, without charge to the holder
thereof, a definitive Bond or Bonds of an equal aggregate
principal amount as the temporary Bond surrendered. Until so
exchanged the temporary Bonds shall in all respects be entitled
to the same benefit and security of this Indenture as the
definitive Bonds to be issued and authenticated hereunder.
Mutilated, Destroyed or Lost Bonds. In case any Bond
secured hereby shall become mutilated or be destroyed or lost,
the Issuer shall cause to be executed, and the Trustee shall
authenticate and deliver, a new Bond of like date and tenor in
exchange and substitution for and upon the cancellation of such
mutilated Bond, or in lieu of and in substitution for such Bond,
if any, destroyed or lost, upon the holder's paying the
reasonable expenses and charges of the Issuer and the Trustee in
connection therewith and, in the case of a Bond destroyed or
lost, the holder's filing with the Trustee evidence satisfactory
to it and to the Issuer that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the Issuer and the
Trustee indemnity satisfactory to them.
Destruction of Bonds. Whenever any Bonds shall be
delivered to the Trustee upon the cancellation thereof pursuant
to this Indenture, upon payment of the principal amount
represented thereby or for replacement of a mutilated Bond
pursuant to Section 2.08 hereof, such Bonds shall be promptly
cancelled and destroyed by the Trustee and counterparts of a
certificate of destruction evidencing such destruction shall be
furnished by the Trustee to the Issuer and the Company.
Section 2.10. Book-Entry Only System. Upon issuance of the
Bonds, one fully-registered Bond will be initially registered in
the name of Cede & Co., as nominee for The Depository Trust
Company (the "Securities Depository") in the aggregate principal
amount of the Bonds. So long as Cede & Co. is the registered
Owner of the Bonds, as nominee of the Securities Depository,
references herein to the holders of the Bonds or registered Owner
of the Bonds shall mean Cede & Co. and shall not mean the
beneficial owners of the Bonds.
The Letter of Representations in substantially the form
attached hereto as Exhibit B, with such changes, omissions,
insertions and revisions as the Clerk and the Trustee may approve
at any time, is hereby approved, and the Issuer and the Trustee
shall execute and deliver such Letter of Representations. The
approval of the Issuer and the Trustee of any changes, omissions,
insertions and revisions to the Letter of Representations shall
be conclusively established by the execution of the Letter of
Representations by the Clerk on behalf of the Issuer and the
Trustee. The Issuer and the Trustee acknowledge that the terms
and provisions of said Letter of Representations shall govern in
the event of any inconsistency between the provisions of this
Indenture and said Letter of Representations.
Transfers of beneficial ownership interests in the Bonds
will be accomplished by book entries made by the Securities
Depository, and, in turn by the participants in the Securities
Depository (the "Participants") who act on behalf of the indirect
participants in the Securities Depository (the "Indirect
Participants") and the beneficial owners of the Bonds.
The Trustee and the Issuer shall recognize the Securities
Depository or its nominee, Cede & Co., as the Owner of the Bonds
for all purposes, including notices and voting. Conveyance of
notices and other communications by the Securities Depository to
Participants and by such Participants to Indirect Participants,
and by Participants and Indirect Participants to beneficial
owners of the Bonds will be governed by arrangements among the
Securities Depository, the Participants and the Indirect
Participants, subject to any statutory and regulatory
requirements as may be in effect from time to time.
NEITHER THE ISSUER NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH RESPECT
TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT; (ii)
THE PAYMENT BY THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL AMOUNT OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS; (iii) THE DELIVERY TO THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED
TO BE GIVEN TO HOLDERS OF THE BONDS UNDER THE TERMS OF THIS
INDENTURE; (iv) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR
(v) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by
giving notice to the Trustee and discharging its responsibilities
with respect thereto under the applicable law. In such event, or
in the event the Issuer at the request of the Company elects to
use a similar book-entry system with another securities
depository, there may be a successor securities depository (all
references to the Securities Depository include any such
successor). The Issuer at the request of the Company may also
determine to discontinue participation in the system of book-
entry transfer through the Securities Depository at any time by
giving reasonable notice to the Securities Depository. If the
book-entry system is terminated, Bond certificates will be
delivered to the beneficial owners, after a list of such
beneficial owners is provided to the Trustee, at the expense of
the Company, as provided herein and all references to the
Securities Depository shall be of no further force or effect.
The beneficial owners of the Bonds, upon registration of
certificates held in the beneficial owners' names, will then
become the registered Owners of the Bonds and registration,
transfer and exchange of the Bonds by such Owners will be
governed by Section 2.05 herein.
Whenever, during the term of the bonds the beneficial
ownership thereof is determined by a book entry at the Securities
Depository, the requirements of this Indenture of holding,
delivering or transferring the Bonds shall be deemed modified to
require the appropriate person to meet the requirements of the
Securities Depository as to registering or transferring the book
entry to produce the same effect.
ARTICLE
REDEMPTION OF BONDS BEFORE MATURITY
Redemption Dates and Prices. The Bonds are non-callable
for redemption prior to ___________. Thereafter, the Bonds are
subject to optional redemption by the Issuer prior to maturity
in whole or in part , in such manner as the Trustee may
determine, at any time on or after ______________, at the
redemption prices (expressed as percentages of principal amount)
set forth in the table below plus accrued interest to the
redemption date:
[To Come] [To Come]
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
one hundred eighty (180) days after a final determination or
final action referred to below, at a redemption price equal to
the principal amount thereof plus accrued interest thereon to the
date of redemption, but without premium, if, as a result of any
final determination of a federal court or final action of the
Internal Revenue Service, in a proceeding in which the Company
has received timely notice of and has had an opportunity to
participate at its expense, it is determined that as a result of
the failure of the Company to observe any covenant, agreement or
representation in the Agreement or the Issuer to observe any
covenant, agreement or representation in this Indenture, the
interest payable on the Bonds is not excludable from gross income
of an Owner of a Bond (other than an Owner who is a "substantial
user" of the Project or "related person" within the meaning of
Section 147 of the Code and applicable regulations promulgated
thereunder) under Section 103 of the Code. The Bonds shall be
redeemed, whether in whole or in part, in such principal amount
that the interest payable on the Bonds remaining Outstanding
after such redemption would not be included in the gross income
of a holder thereof (other than an Owner who is a "substantial
user" or "related person" within the meaning of Section 147(a) of
the Code and applicable regulations promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to _____________, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
If the Bonds cease to be held in book entry form and less
than all of the Bonds shall be called for redemption, the
particular Bonds or portions of registered Bonds to be redeemed
shall be selected by the Trustee by lot or in such other manner
as the Trustee in its discretion may determine; provided,
however, that the portion of any registered Bond to be redeemed
shall be in the principal amount of $5,000 or some multiple
thereof, and that, in selecting Bonds for redemption, the Trustee
shall treat each Bond as representing that number of Bonds which
is obtained by dividing the principal amount of such registered
Bond by $5,000.
Notice of Redemption. At least thirty (30) days but not
more than sixty (60) days before the redemption date of any
Bonds, the Trustee shall cause a notice of any such redemption,
either in whole or in part, to be mailed, postage prepaid, to all
Owners of Bonds to be redeemed in whole or in part at their
addresses as they appear on the registration books hereinabove
provided for, but failure so to mail any such notice shall not
affect the validity of the proceedings for such redemption. Each
such notice shall set forth the date fixed for redemption, the
redemption price to be paid and, if less than all of the Bonds
then Outstanding shall be called for redemption, the distinctive
numbers and letters, if any, of such Bonds to be redeemed and, in
the case of Bonds to be redeemed in part only, the portion of the
principal amount thereof to be redeemed. In case any Bond is to
be redeemed in part only, the notice of redemption which relates
to such Bond shall state also that on or after the redemption
date, upon surrender of such Bond, a new Bond in principal amount
equal to the unredeemed portion of such Bond will be issued.
If at the time of giving of notice of an optional redemption
there shall not have been deposited with the Trustee moneys
sufficient to redeem all the Bonds called for redemption, such
notice shall state that it is conditioned upon the deposit of the
redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no
effect unless such moneys are so deposited. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
Effect of Call for Redemption. On the date so designated
for redemption, moneys for payment of the redemption price and
accrued interest to the redemption date being held by the Trustee
in trust for the Owners of the Bonds or portions thereof to be
redeemed, all as provided in this Indenture, the Bonds or
portions of Bonds so called for redemption shall become and be
due and payable at the redemption price provided for redemption
of such Bonds or portions of Bonds on such date, interest on the
Bonds or portions of Bonds so called for redemption shall cease
to accrue, such Bonds or portions of Bonds shall cease to be
entitled to any benefit or security under this Indenture, and the
Owners of such Bonds or portions of Bonds shall have no rights in
respect thereof except to receive payment of the redemption price
thereof and accrued interest to the redemption date and, to the
extent provided in Section 3.04 hereof, to receive Bonds for any
unredeemed portions of Bonds.
Partial Redemption. In case part but not all of an
Outstanding Bond shall be selected for redemption, the Owner
thereof or his attorney or legal representative shall present and
surrender such Bond to the Trustee for payment of the principal
amount thereof so called for redemption, and the Issuer shall
execute and the Trustee shall authenticate and deliver to or upon
the order of such Owner or his attorney or legal representative,
without charge therefor, for the unredeemed portion of the
principal amount of the Bond so surrendered, a Bond of the same
maturity and bearing interest at the same rate.
Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the Bond Fund or shall have
received from any other source and set aside, or deposited with
the Paying Agent, for the purpose of paying any of the Bonds,
either at the maturity thereof or upon call for redemption, shall
be held in trust for the respective holders of such Bonds. Any
moneys which shall be so set aside or deposited by the Trustee
and which shall remain unclaimed by the holders of such Bonds for
a period of six (6) years after the date on which such Bonds
shall have become due and payable shall upon request in writing
be paid to the Company and, thereafter, the holders of such Bonds
shall look only to the Company for the payment thereof and then
only to the extent of the amount so received without any interest
thereon, and the Issuer and the Trustee shall have no
responsibility with respect to such moneys.
[Surrender of First Mortgage Bonds. At the time any
Bonds cease to be Outstanding under the terms of this Indenture
the Trustee shall surrender to the Mortgage Trustees an aggregate
principal amount of First Mortgage Bonds equal to the sum of
(i) the aggregate principal amount of the Bonds which have ceased
to be Outstanding and (ii) seven months (7/12) of the annual
interest due on the Bonds which have ceased to be Outstanding,
computed at their stated rate.]
[ Satisfaction of First Mortgage Bonds. The Issuer and
the Trustee agree that the obligations of the Company to make
payments with respect to the principal of the First Mortgage
Bonds pledged hereunder shall be reduced by the amount of any
reduction under this Indenture of the amount of the corresponding
payment required to be made by the Issuer hereunder in respect of
the principal of the Bonds plus seven months (7/12) of the annual
interest which was due on the principal amount of the Bonds which
is so reduced.]
[ Satisfaction and Surrender of Assignment and
Supplement. The Issuer and the Trustee agree that the right of
the Trustee to receive any payments under the Assignment and the
Supplement shall be reduced by the amount of any reduction under
this Indenture of the amount of the corresponding payment
required to be made by the Issuer hereunder. Promptly after the
date on which there cease to be any Bonds Outstanding, the
Trustee shall surrender the Assignment and the Supplement to the
Company, along with such other appropriate instruments evidencing
transfer and release as the Company may reasonably request.]
ARTICLE
GENERAL COVENANTS
Payment of Principal, Redemption Premium, if any, and
Interest. The Issuer covenants that it will promptly pay the
principal of, redemption premium, if any, and interest on every
Bond issued under this Indenture at the place, on the dates and
in the manner provided herein and in said Bonds according to the
true intent and meaning thereof, but only from the Revenues and
Receipts of the Issuer under the Agreement specifically pledged
herein for such purposes.
Performance of Covenants; Issuer. The Issuer covenants
that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and
delivered hereunder and in all of its proceedings pertaining
hereto. The Issuer covenants that it is duly authorized under
the Constitution and laws of the State of Mississippi, including
particularly and without limitation the Act, to issue the Bonds
and to execute this Indenture, to assign and pledge the
Agreement, the amounts payable under the Agreement and to pledge
the amounts hereby pledged in the manner and to the extent herein
set forth; that all action on its part necessary for the issuance
of the Bonds and the execution and delivery of this Indenture has
been duly and effectively taken, and that the Bonds in the hands
of the holders and owners thereof are and will be valid and
enforceable obligations of the Issuer according to the terms
thereof and hereof.
Instruments of Further Assurance; Liens and Encumbrances.
The Issuer covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better pledging and assigning unto the
Trustee all and singular the purchase price installments and any
other income and other moneys pledged hereby to the payment of
the principal of and interest and redemption premium, if any, on
the Bonds. The Issuer further covenants that it will not create
or suffer to be created any lien, encumbrance or charge upon its
interest in the Agreement, including purchase price installments
or any other income from the Agreement; provided, however, that
nothing in this Section 4.03 shall require the Issuer to pay or
cause to be discharged, or make provision for, any such lien,
encumbrance or charge so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings.
Recordation. The Company is obligated pursuant to Section
10.01 of the Agreement to take all actions that at the time and
from time to time may be necessary (or, in the opinion of the
Trustee, may be necessary) to perfect, preserve, protect and
secure the interests of the Issuer and the Trustee, or either, in
and to the Revenues and Receipts of the Issuer under the
Agreement, including, without limitation, the filing of all
financing and continuation statements that may be required under
the Mississippi Uniform Commercial Code. The Issuer and the
Trustee covenant that they will execute all documents necessary
to permit the Company to fulfill its obligations under said
Section 10.01 of the Agreement.
Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth
the covenants and obligations of the Issuer and the Company,
including provisions that subsequent to the issuance of Bonds and
prior to their payment in full or provision for payment thereof
in accordance with the provisions thereof the Agreement may not
be amended, changed, modified, altered or terminated (other than
as provided therein) without the concurring written consent of
the Trustee, and reference is hereby made to the same for a
detailed statement of said covenants and obligations of the
Company thereunder; and the Issuer agrees that the Trustee in its
own name or in the name of the Issuer may enforce all rights of
the Issuer and all obligations of the Company under and pursuant
to the Agreement for and on behalf of the bondholders, whether or
not the Issuer is in default hereunder.
Prohibited Activities. The Issuer and the Trustee
covenant that neither of them shall take any action or suffer or
permit any action to be taken or condition to exist which causes
or may cause the interest payable on the Bonds to be includable
in gross income for purposes of federal income taxation. Without
limiting the generality of the foregoing, the Issuer and the
Trustee covenant that (a) the proceeds of the sale of the Bonds,
the earnings thereon, and any other moneys on deposit in any fund
or account maintained in respect of the Bonds (whether such
moneys were derived from the proceeds of the sale of the Bonds or
from other sources) will not be used in a manner which would
cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Code, and (b) all action with
respect to the Bonds required by Section 148(f) of the Code shall
be taken in a timely manner.
Notices of Trustee. The Trustee shall give notice to
both the Issuer and the Company whenever it is required hereby to
give notice to either and, additionally, shall furnish to the
Issuer and the Company copies of any Notice by Mail or
Publication given by it pursuant to any provision hereof.
[No Transfer of First Mortgage Bonds Held by Trustee.
The Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture, and the
Trustee is authorized to enter into an agreement with the Company
to such effect, including a consent to the issuance of stop
transfer instructions to the First Mortgage Trustees.]
[ No Transfer of Assignment, Supplement or Trustee's
Interest in Underlying Agreements. The Trustee shall not sell,
assign or transfer the Assignment, the Supplement or any interest
in the Capital Funds Agreement or the Availability Agreement,
except to a successor trustee under this Indenture, and the
Trustee is authorized to enter into an agreement with the Company
to such effect.]
ARTICLE
REVENUES AND FUNDS
Source of Payment of Bonds. The Bonds authenticated and
delivered hereunder are the obligations of the Issuer to make
payments hereunder in respect of the principal of, redemption
premium, if any, and interest on such Bonds. The Bonds are not
general obligations of the Issuer but are limited obligations
payable solely from Revenues and Receipts of the Issuer under the
Agreement as authorized by the Act and from the Trust Estate
pledged hereunder.
The payments to be made by the Company under Section 5.02 of
the Agreement are to be paid directly to the Trustee for the
account of the Issuer and deposited in the Bond Fund. Such
payments shall be sufficient in amount to provide for, and are
pledged to secure, the payment of the principal of, redemption
premium, if any, and interest on the Bonds.
Creation of Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated
"Claiborne County Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995 Bond Fund."
Moneys deposited therein shall be used to pay the principal of,
redemption premium, if any, and interest on the Bonds as provided
in this Indenture.
Payments into the Bond Fund. There shall be deposited
into the Bond Fund any accrued interest received from the sale of
the Bonds. In addition, there shall be deposited into the Bond
Fund, as and when received, (i) all payments made by the Company
pursuant to Section 5.02 of the Agreement; (ii) all other moneys
received by the Trustee under and pursuant to any of the
provisions of the Agreement which are required, or which are
accompanied by directions from the Company that such moneys are
to be paid into the Bond Fund; (iii) all payments or moneys
received or realized as part of the Trust Estate pledged
hereunder. The Issuer hereby covenants and agrees that, so long
as any of the Bonds are Outstanding, it will deposit, or cause to
be paid to the Trustee for deposit in the Bond Fund for its
account, sufficient sums from Revenues and Receipts of the Issuer
under the Agreement, promptly to meet and pay the principal of,
redemption premium, if any, and interest on the Bonds as the same
become due and payable; provided, however, that nothing herein
shall be construed as requiring the Issuer to use any funds or
revenues from any source other than the Revenues and Receipts of
the Issuer under the Agreement.
Use of Moneys in the Bond Fund. Except as provided in
Section 5.08 hereof, moneys in the Bond Fund shall be used solely
for the payment of the principal of, redemption premium, if any,
and interest on the Bonds.
Custody of the Bond Fund. The Bond Fund shall be in the
custody of the Trustee but in the name of the Issuer, and the
Issuer hereby authorizes and directs the Trustee to withdraw
sufficient funds from the Bond Fund to pay the principal of,
redemption premium, if any, and interest on the Bonds as the same
become due and payable for the purpose of paying said principal
of, redemption premium, if any, and interest, which authorization
and direction the Trustee hereby accepts.
Non-presentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due,
whether at stated maturity, upon redemption, or otherwise, if
funds sufficient to pay such Bond shall have been made available
to the Trustee for the benefit of the holder thereof, all
liability of the Issuer to the holder thereof for the payment of
such Bond shall forthwith cease, terminate and be completely
discharged, and thereupon it shall be the duty of the Trustee to
hold such funds, without liability for interest thereon, for the
benefit of the holder of such Bond for a period of six (6) years
after such due date (or, if shorter, the period ending on the
date immediately preceding the date that such funds would escheat
to the State of Mississippi), at which time such funds shall be
transferred, upon written request from an Authorized Company
Representative to the Company which shall hold such funds without
liability for interest thereon, for the benefit of the holder of
such Bond who shall thereafter be restricted exclusively to a
claim against the Company for any claim of whatever nature on his
part with respect to said Bond.
Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for the account of the Bond
Fund under any provision of this Indenture or the Agreement shall
be held by the Trustee in trust, and except for moneys deposited
with or paid to the Trustee for the redemption of the Bonds,
notice of the redemption of which has been duly given and for
moneys deposited with or paid to the Trustee pursuant to Article
VII hereof, shall, while held by the Trustee, constitute part of
the Trust Estate and be subject to the security interest created
hereby.
Repayment to the Company from Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of the principal
of, redemption premium, if any, and interest on the Bonds and the
fees and expenses of the Trustee and all other amounts required
to be paid hereunder shall belong and be paid to the Company.
Creation and Use of the Rebate Fund. There is hereby
created and established a special fund to be designated
"Claiborne County Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995 Rebate Fund"
(the "Rebate Fund") which shall be held by the Trustee, in trust,
for the benefit of the Issuer to secure payment to the United
States Government of all amounts to become due to the United
States Government under the rebate requirements set forth in
Section 148(f) of the Code and to facilitate compliance by the
Issuer, the Trustee, and the Company with the provisions of the
Company's Tax Certificate and Covenants pertaining to the Bonds
(the "Certificate"). Capitalized terms and phrases used in this
Section and not otherwise defined in this Indenture, shall have
the meaning given to those terms in the Certificate.
The Trustee shall apply any moneys in the Rebate Fund in
accordance with written instructions from the Company. The
Company is obligated, pursuant to the Certificate, to give such
instructions to the Trustee in accordance with the Certificate.
The Issuer and the Trustee shall not make or agree to make
any payments or participate in any non-arms-length transaction
which would have the effect of reducing the earnings on
investments, thereby reducing the amount required to be rebated
to the United States under Section 148(f) of the Code and
regulations thereunder.
The Rebate Fund shall not provide further security for the
Bonds.
ARTICLE
INVESTMENTS
Investment of Moneys. Moneys in the Bond Fund shall, at
the direction of the Company prior to the occurrence of an Event
of Default (as defined in Section 8.01 hereof), be invested and
reinvested in Investment Securities. In addition, the Trustee
shall, at the direction of the Company prior to the occurrence of
an Event of Default, enter into option agreements and agreements
to lend securities with respect to any Investment Securities held
by it, to the extent permitted by Mississippi law. Subject to
the further provisions of this Section 6.01, prior to the
occurrence of an Event of Default, such investments shall be
made, and such agreements entered into, by the Trustee as
directed and designated by the Company in a certificate of, or
telephonic advice promptly confirmed by a certificate of, an
Authorized Company Representative. As and when any amounts thus
invested may be needed for disbursements from the Bond Fund, the
Trustee shall cause a sufficient amount of such investments to be
sold or otherwise converted into cash to the credit of such fund.
As long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to designate the
investments to be sold and to otherwise direct the Trustee in the
sale or conversion to cash of the investments made with the
moneys in the Bond Fund, provided that the Trustee shall be
entitled to conclusively assume the absence of any such Event of
Default unless it has notice thereof within the meaning of
Section 9.01(h) hereof. After the occurrence of an Event of
Default, the Trustee shall have the right to make, in its sole
and absolute discretion, any and all investment or other
decisions that would otherwise be made by the Company pursuant to
Section 5.01 hereof or this Section 6.01 prior to the occurrence
of an Event of Default.
ARTICLE
DISCHARGE OF INDENTURE
Discharge of Indenture. When the principal of, redemption
premium, if any, and interest on all of the Bonds shall have been
paid, or deemed paid as provided in this Article, and if the
Issuer shall not then be in default under any of its other
obligations under the terms of this Indenture, and if the Company
shall have caused to be paid to the Trustee all other sums of
money due or to become due according to the provisions hereof (or
shall have made arrangements satisfactory to the Trustee for such
payment) and shall not then be in default under any of its
obligations under the terms of the Agreement, then the lien
created hereby shall be discharged and satisfied, and thereupon
the Trustee shall execute and deliver to the Issuer such
instruments in writing as shall be requisite to cancel and
discharge the Agreement and to evidence the discharge and
cancellation of the lien; provided, however, that the Trustee
shall remain obligated to hold in trust any amounts then
remaining in the Bond Fund and to pay to the holders of the Bonds
any amounts held by the Trustee for the payment of the principal
of, redemption premium, if any, and interest on the Bonds
according to the provisions of Section 5.04 hereof and to pay any
remaining amounts to the Company as provided in Article V hereof.
Any Bond shall be deemed to be paid within the meaning of
this Article when delivered to the Trustee for cancellation or
when payment of the principal of, redemption premium, if any, and
interest thereon to the due date thereof (whether at maturity, or
upon redemption, or otherwise) either (a) shall have been made or
caused to be made in accordance with the terms thereof, or (b)
shall have been provided by depositing with the Trustee, for such
payment, (i) moneys sufficient to make such payment or (ii)
moneys and/or Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the
availability of sufficient moneys to make such payment, provided
that all necessary and proper fees, compensation and expenses of
the Trustee pertaining to the Bonds with respect to which such
deposit is made shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. At such times
as a Bond shall be deemed to be paid hereunder, as aforesaid, it
shall no longer be secured by or entitled to the benefits of this
Indenture, except for the purposes of any such payment from such
moneys or Government Obligations.
Notwithstanding the foregoing, no deposit under clause
(b) of the immediately preceding paragraph shall be deemed a
payment of such Bonds as aforesaid until (1) proper notice of
redemption of such Bonds shall have been given in accordance with
Section 3.02 hereof, or in the event said Bonds are not by their
terms subject to redemption within the next succeeding sixty (60)
days, until the Company shall have given the Trustee on behalf of
the Issuer, in form satisfactory to the Trustee, irrevocable
instructions to give proper notice of such redemption and to
notify, as soon as practicable, the holders of the Bonds in
accordance with Article III hereof that the deposit required by
(b) above has been made with the Trustee and that said Bonds are
deemed to have been paid in accordance with this Article and
stating such maturity or redemption date upon which moneys are to
be available for the payment of the principal of and redemption
premium, if any, on said Bonds, plus interest, or (2) the stated
maturity of such Bonds. Any moneys so deposited with the Trustee
as provided in this Article VII, only at the written direction or
telecopy direction confirmed in writing of the Company, may also
be invested and reinvested in Government Obligations maturing in
the amounts and times as hereinbefore set forth, and all income
from all Government Obligations in the hands of the Trustee
pursuant to this Article which is not required for the payment of
the Bonds and interest and redemption premium thereon with
respect to which such moneys shall have been so deposited, shall
be deposited in the Bond Fund as and when realized and collected
for use and application as are other moneys deposited in that
Fund; provided, in addition, that the Trustee shall have received
the opinion of Bond Counsel to the effect that such deposit does
not adversely effect the exclusion of the interest on the Bonds
from gross income for purposes of federal income taxation.
ARTICLE
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Events of Default. Each of the following events shall
constitute and be referred to in this Indenture as an "Event of
Default":
default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
default in the due and punctual payment of the
principal of and redemption premium, if any, on any Bond hereby
secured and Outstanding, whether at the stated maturity thereof,
or upon proceedings for the unconditional redemption thereof, or
upon the maturity thereof by acceleration;
default in the payment of any other amount
required to be paid under this Indenture or in the performance or
observance of any other of the covenants, agreements or
conditions contained in this Indenture, or in the Bonds issued
under this Indenture, and continuance thereof for a period of
ninety (90) days after written notice specifying such failure and
requesting that it be remedied, shall have been given to the
Issuer and the Company by the Trustee, which may give such notice
in its discretion and shall give such notice at the written
request of owners of not less than ten per centum (10%) in
aggregate principal amount of the Bonds then Outstanding, unless
the Trustee, or the Trustee and owners of any aggregate principal
amount of Bonds not less than the aggregate principal amount of
Bonds the owners of which requested 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 owners of such principal amount of Bonds, as the
case may be, shall be deemed to have agreed to an extension of
such period if corrective action is instituted by the Issuer, or
the Company on behalf of the Issuer, within such period and is
being diligently pursued; or
the occurrence of an "Event of Default" under
Section 8.01 of the Agreement.
The term "default" as used in clauses (a), (b) and (c) above
shall mean default by the Issuer in the performance or observance
of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
Acceleration. Upon the occurrence and continuance of an
Event of Default described in clause (a), (b) or (d) of the first
paragraph of Section 8.01 hereof, the Trustee may, and upon the
request of the Owners of 25% in principal amount of all Bonds
then Outstanding shall, by notice in writing to the Issuer and
the Company, declare the principal of all Bonds then outstanding
to be immediately due and payable; and upon such declaration the
said principal, together with interest accrued thereon to the
date of acceleration, shall become due and payable immediately at
the place of payment provided therein, anything in this Indenture
or in the Bonds to the contrary notwithstanding. Upon the
occurrence of any acceleration hereunder, the Trustee shall
immediately declare all payments required to be paid pursuant to
Section 5.02 of the Agreement to be due and payable immediately.
Upon the occurrence of any acceleration hereunder, the
Trustee shall give Notice by Mail to the Owners of all Bonds
Outstanding of the occurrence of such acceleration.
If, after the principal of the Bonds has become due and
payable, all arrears of interest and interest on overdue
installments of interest (if lawful) at the rate per annum borne
by the Bonds and the principal and redemption premium, if any, on
all Bonds then Outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable
under this Indenture except the principal of, and interest on,
the Bonds which by such acceleration shall have become due and
payable upon the Bonds, are paid by the Issuer, and the Issuer
pays the reasonable charges of the Trustee, the bondholders and
any trustee appointed under law, including the Trustee's
reasonable attorney's fees, then, and in every such case, the
Trustee shall annul such acceleration and its consequences, and
such annulment shall be binding upon all holders of Bonds issued
hereunder; but no such annulment shall extend to or affect any
subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of such annulment
notice pursuant to this paragraph to the Issuer.
Other Remedies. If any Event of Default occurs and is
continuing, except as otherwise provided in Section 9.11 hereof,
the Trustee may pursue any available remedy by suit at law or in
equity to enforce the payment of the principal of and redemption
premium, if any, and interest on the Bonds then Outstanding
hereunder, then due and payable, and enforce each and every right
granted to it under the Agreement and any supplements or
amendments thereto for the benefit of the bondholders. In
exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
bondholders.
Legal Proceedings by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may,
and upon the written request of the holders of twenty-five per
centum (25%) in principal amount of all Bonds then Outstanding
and receipt of indemnity to its satisfaction shall, in its own
name as Trustee:
by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the bondholders,
including the right to require the Issuer to enforce any rights
under the Agreement and to require the Issuer to carry out any
other provisions of this Indenture for the benefit of the
bondholders and to perform its duties under the Act;
bring suit upon the Bonds;
by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for the
bondholders; or
by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights of the
bondholders.
No remedy conferred upon or reserved to the Trustee or to
the bondholders by the terms of this Indenture is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such default
or vent of Default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
Right of Bondholders to Direct Proceedings. Anything in
this Indenture to the contrary notwithstanding, the Owners of a
majority in aggregate principal amount of Bonds then Outstanding
shall have the right, at any time, by an instrument or
instruments in writing executed and delivered to the Trustee, to
direct the method and place of conducting all proceedings to be
taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder, provided, that such
direction shall not be otherwise than in accordance with the
provisions of law or of this Indenture.
Appointment of Receivers. Upon the occurrence of an Event
of Default, and upon the filing of a suit or other commencement
of judicial proceedings to enforce the rights of the Trustee and
of the bondholders under this Indenture, the Trustee shall be
entitled, as a matter of right, to the appointment of a receiver
or receivers of the Trust Estate, with such powers as the court
making such appointment shall confer.
Waiver. Upon the occurrence of an Event of Default, to
the extent that such rights may then lawfully be waived, neither
the Issuer, nor the State of Mississippi, nor any political
subdivision thereof, nor anyone claiming through or under any of
them, shall set up, claim, or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the Issuer, for itself and all
who may claim through or under it, hereby waives, to the extent
that it lawfully may do so, the benefit of all such laws.
Application of Moneys. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions
of this Article VIII shall, after payment of the costs and
expenses of the proceedings resulting in the collection of such
moneys and of the expenses, liabilities and advances incurred or
made by the Trustee, including but not limited to payments for
and expenses of third party professionals, be deposited in the
Bond Fund and all moneys in the Bond Fund shall be applied as
follows:
Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
FIRST - To the payment to the persons entitled thereto of
all installments of interest then due on the Bonds, in the order
of the maturity of the installments of such interest and, if the
amount available shall not be sufficient to pay in full any
particular installment, then to the payment ratably, according to
the amounts due on such installment, to the persons entitled
thereto, without any discrimination or privilege; and
SECOND - To the payment to the persons entitled thereto of
the unpaid principal of and redemption premium, if any, on any of
the Bonds which shall have become due (other than Bonds matured
or called for redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), in the order of
their due dates, with interest on such Bonds from the respective
dates upon which they became due and, if the amount available
shall not be sufficient to pay in full Bonds due on any
particular date, together with such interest, then to the payment
ratably, according to the amount of principal due on such date,
to the persons entitled thereto without any discrimination or
privilege.
THIRD - Payment of interest on and principal of the Bonds,
and to the redemption of Bonds in accordance with the provisions
of Article III.
If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to the
payment of the principal and interest then due upon the Bonds,
without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over
any other installment of interest, or of any Bond over any other
Bond, ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto without
any discrimination or privilege.
If the principal of all the Bonds shall have
become due and payable, and if such acceleration shall thereafter
have been rescinded and annulled under the provisions of this
Article VIII then, subject to the provisions of subsection (b) of
this Section 8.08 in the event that the principal of all the
Bonds shall later become due or be declared due and payable, the
moneys shall be applied in accordance with the provisions of
subsection (a) of this Section 8.08.
Whenever moneys are to be applied pursuant to the provisions
of this Section 8.08, such moneys shall be applied at such times,
and from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest payment
date unless it shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the
amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the
fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of, redemption premium, if any, and
interest on all Bonds have been paid under the provisions of this
Section 8.08 and all expenses and charges of the Trustee have
been paid, any balance remaining in the Bond Fund shall be paid
to the Company as provided in Section 5.08 hereof.
Remedies Vested in the Trustee. All rights of action
(including the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any holders of the Bonds; and
any recovery of judgment shall subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the holders of
the Outstanding Bonds.
Rights and Remedies of Bondholders. No holder of any Bond
shall have any right to institute any suit, action or proceeding
in equity or at law for the enforcement of this Indenture or for
the execution of any trust hereof or for the appointment of a
receiver or any other remedy hereunder, unless also a default has
occurred of which the Trustee has been notified as provided in
Section 9.01(h) hereof, or of which by said subsection it is
deemed to have notice, nor unless also such default shall have
become an Event of Default and the holders of not less than
twenty-five percent (25%) in aggregate principal amount of Bonds
then Outstanding shall have made written request to the Trustee
and shall have offered it reasonable opportunity either to
proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in their own name or
names, nor unless also they have offered to the Trustee indemnity
as provided in Section 9.01(l) hereof, nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his or
their action or to enforce any right hereunder except in the
manner herein provided, and that all proceedings at law or in
equity shall be instituted, had and maintained in the manner
herein provided and for the equal and ratable benefit of the
holders of all Bonds then Outstanding. Nothing in this Indenture
contained shall, however, affect or impair the right of any
bondholder to enforce the payment of the principal of, redemption
premium, if any, and interest on any Bond at and after the
maturity thereof, or the obligation of the Issuer to pay the
principal of, redemption premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at
the time, place, from the source and in the manner expressed in
the Bonds.
Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any right under this Indenture by the
appointment of a receiver, or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason, or
shall have been determined adversely, then and in every such case
the Issuer and the Trustee shall be restored to their former
positions and rights hereunder; and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings
had been taken, except to the extent the Trustee is legally bound
by such adverse determination.
Waivers of Events of Default. The Trustee may in its
discretion waive any Event of Default hereunder and its
consequences and rescind any acceleration of maturity of
principal, and shall do so upon the written request of the Owners
of (a) not less than two-thirds in principal amount of all the
Bonds then Outstanding in respect of which default in the payment
of principal and/or interest exists, or (b) more than one-half in
principal amount of all Bonds then Outstanding in the case of any
other default; provided, however, that there shall not be waived
(i) any Event of Default in the payment of the principal of any
Outstanding Bonds at the date of maturity specified therein or
(ii) any default in the payment when due of the interest on any
such Bonds unless prior to such waiver or rescission, all arrears
of interest, with interest (to the extent permitted by law) at
the rate borne by the Bonds in respect of which such default
shall have occurred on overdue installments of interest or all
arrears of payments of principal when due, as the case may be,
and all expenses of the Trustee in connection with such default
shall have been paid or provided for, and in cases of any such
waiver or rescission, or in case any proceeding taken by the
Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and in
every such case the Issuer, the Trustee and the Owners of the
Bonds shall be restored to their former positions and rights
hereunder respectively, but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right
consequent thereon.
Opportunity of Issuer and Company to Cure Defaults Under
Section 8.01(c); Notice. With regard to any alleged default
concerning which notice is given to the Issuer and the Company
under the provisions of Section 8.01(c), the Issuer hereby grants
the Company full authority for the account of the Issuer to
perform any covenant or obligation alleged in said notice to
constitute a default, in the name and stead of the Issuer with
full power to do any and all things and acts to the same extent
that the Issuer could do and perform any such things and acts and
with power of substitution.
In the event that the Trustee fails to receive Loan
Repayment when due under the Agreement, the Trustee shall
immediately give notice by overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
ARTICLE
THE TRUSTEE
Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform
said trusts, but only upon and subject to the following express
terms and conditions:
The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default which
may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise 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.
The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be answerable
for the conduct of the same in accordance with the standard
specified in (a) above, and shall be entitled to advice of
counsel concerning all matters of trusts hereof and the duties
hereunder, and may in all cases pay such reasonable compensation
to all such attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts hereof. The
Trustee may act upon the opinion or advice of any attorney (who
may be the attorney or attorneys for the Issuer or the Company if
selected or retained prior to the occurrence of an Event of
Default), approved by the Trustee in the exercise of reasonable
care. The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in reliance
upon such opinion or advice.
The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for the
recording or re-recording, filing or re-filing of this Indenture,
or any other instrument required by this Indenture to secure the
Bonds, or for insuring the Project or collecting any insurance
moneys, or for the validity of the execution by the Issuer of
this Indenture or of any supplements hereto or instruments of
further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby, or for
the value or title of the Project or otherwise as to the
maintenance of the security hereof; except that in the event the
Trustee enters into possession of a part or all of the property
herein conveyed pursuant to any provision of this Indenture, it
shall use due diligence in preserving such property; and the
Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions and
agreements aforesaid as to the condition of the property herein
conveyed.
The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The Trustee
may become the Owner of Bonds secured hereby with the same rights
which it would have if it were not the Trustee. To the extent
permitted by law, the Trustee may also receive tenders and
purchase in good faith Bonds from itself, including any
department, affiliate or subsidiary, with like effect as if it
were not the Trustee.
The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person
who at the time of making such request or giving such authority
or consent is the Owner of any Bond, shall be conclusive and
binding upon all future Owners of the same Bond and upon Owners
of Bonds issued in exchange therefor or in place thereof.
As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate signed by a representative of the Issuer or an
Authorized Company Representative as sufficient evidence of the
facts therein contained; and, prior to the occurrence of a
default of which the Trustee has been notified as provided in
subsection (h) of this Section 9.01, or of which by said
subsection it is deemed to have notice, the Trustee shall also be
at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to
secure the same. The Trustee may accept a certificate of the
Clerk under the seal of the Issuer to the effect that a
resolution in the form therein set forth has been adopted by said
Issuer as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty,
and it shall not be answerable for other than its negligence or
willful default.
The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the Issuer to cause to be made any of the payments to
the Trustee required to be made by Article IV hereof or the
failure of the Issuer or the Company to file with the Trustee any
document required by this Indenture or the Agreement to be so
filed subsequent to the issuance of the Bonds, unless the Trustee
shall be specifically notified in writing of such default by the
Issuer or by the Owners of at least twenty-five percent (25%) in
aggregate principal amount of Bonds then Outstanding; and all
notices or other instruments required by this Indenture to be
delivered to the Trustee, must, in order to be effective, be
delivered at the principal office of the Trustee, and in the
absence of such notice so delivered the Trustee may conclusively
assume there is no default except as aforesaid.
At any and all reasonable times the Trustee and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully to
inspect all books, papers and records of the Issuer pertaining to
the Bonds, and to take such memoranda from and in regard thereto
as may be desired.
The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals or
other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, which the Trustee in its discretion
may deem desirable for the purpose of establishing the right of
the Issuer to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
Before taking any action referred to in this
Indenture, the Trustee may require that a satisfactory indemnity
bond be furnished for the reimbursement of all expenses to which
it may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its
negligence or willful default by reason of any action so taken.
All moneys received by the Trustee or any Paying
Agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they were
received but need not be segregated from other funds except to
the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any moneys
received hereunder except such as may be mutually agreed upon.
Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement from the Company for
reasonable fees for its services rendered hereunder and all
advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an Event of Default, but only upon an Event
of Default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of, redemption
premium, if any, and interest on any Bond upon the Trust Estate
for the foregoing fees, charges and expenses incurred by it
respectively.
Notice to Bondholders if Default Occurs. If a default
occurs of which the Trustee is by Section 9.01(h) hereof required
to take notice or if notice of default be given as provided in
Section 9.01(h), then the Trustee shall promptly give written
notice thereof by certified mail or telecopier communication to
each registered owner of Bonds then Outstanding such notice to
be given on the next business day if the Company defaults on an
installment payment under the Agreement.
Intervention by Trustee. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the
Trustee and its counsel has a substantial bearing on the
interests of the Owners of the Bonds, the Trustee may intervene
on behalf of Owners of the Bonds and shall do so if requested in
writing by the Owners of at least twenty-five per centum (25%) of
the aggregate principal amount of Bonds then Outstanding. The
rights and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it
may be consolidated, or to which it may sell or transfer its
trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it
is a party, shall be and become successor Trustee hereunder and
vested with all of the title to the Trust Estate and all the
trusts, powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing
of any instrument or any further act, deed or conveyance on the
part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, that such successor Trustee
shall have been approved as successor Trustee by the Company in
writing filed with the Issuer and the Trustee.
Resignation by Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by
giving thirty (30) days' written notice to the Issuer and by
registered or certified mail to each registered Owner of Bonds
then Outstanding, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a
successor Trustee pursuant to Section 9.08 hereof. Such notice
to the Issuer may be served personally or sent by registered
mail.
Removal of Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Issuer, and signed by the
Owners of a majority in aggregate principal amount of Bonds then
Outstanding.
Appointment of Successor Trustee by the Bondholders;
Temporary Trustee. In case the Trustee hereunder shall resign or
be removed, or be dissolved, or shall be in course of dissolution
or liquidation, or otherwise become incapable of acting
hereunder, or in case it shall be taken under the control of any
public officer or officers, or of a receiver appointed by a
court, a successor shall be appointed by the Issuer at the
direction of the Company. The Issuer shall publish notice of
such appointment once in each of two consecutive calendar weeks
in a newspaper or financial journal of general circulation among
dealers in municipal securities in the Borough of Manhattan, City
and State of New York. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the Owners
of a majority in aggregate principal amount of Bonds then
Outstanding. Every such successor Trustee appointed pursuant to
the provisions of this Section 9.08 shall be a trust company or
bank in good standing having a reported capital and surplus of
not less than $6,000,000, if there be such an institution
willing, qualified and able to accept the trusts upon reasonable
and customary terms.
Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer an instrument in writing
accepting such appointment hereunder, and thereupon such
successor, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights,
powers, trusts, duties and obligations of its predecessors; but
such predecessor shall, nevertheless, on the written request of
the Issuer, or of its successor, execute and deliver an
instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee hereunder
to its or his successor. Should any instrument in writing from
the Issuer be required by any successor Trustee for more fully
and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer.
The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this
Article IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the costs thereof.
Successor Trustee as Bond Registrar, Custodian of Bond
Fund and Paying Agent. In the event of a change of Trustee, the
Trustee which has resigned or been removed shall cease to be Bond
Registrar and custodian of the Rebate Fund and the Bond Fund and
Paying Agent for principal and interest of the Bonds and the
successor Trustee shall become such Bond Registrar, custodian and
Paying Agent.
Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever after a reasonable request by the
Company the Issuer shall fail, refuse or neglect to give any
direction to the Trustee or to require the Trustee to take any
action which the Issuer is required to have the Trustee take
pursuant to the provisions of the Agreement or this Indenture,
the Company as agent of the Issuer may give any such direction to
the Trustee or require the Trustee to take any such action, and
the Trustee is hereby irrevocably empowered and directed to
accept such direction from the Company as sufficient for all
purposes of this Indenture. The Company shall have the right as
agent of the Issuer to cause the Trustee to comply with any of
the Trustee's obligations under this Indenture to the same extent
that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer under this
Indenture may create or result in an Event of Default under this
Indenture and the Company, as agent of the Issuer, may, to the
extent permitted by law, perform any and all acts or take such
action as may be necessary for and on behalf of the Issuer to
prevent or correct said Event of Default and the Trustee shall
take or accept such performance by the Company as performance by
the Issuer in such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do all
things and perform all acts provided, and to the extent so
provided, by this Section 9.11.
[Voting of First Mortgage Bonds Held by Trustee.
Except as to the reserved right of the Company to make amendments
to the Assignment, the Availability Agreement and the Capital
Funds Agreement, to which the Trustee consents, the Trustee, as a
holder of the First Mortgage Bonds, shall attend or deliver its
proxy in connection with any meeting of holders of SERI Bonds, as
to which it receives due notice. The Trustee shall affirmatively
seek the approval of the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding as to such matter
and either at such meeting of holders of SERI Bonds or otherwise
where consent of holders of SERI Bonds is sought without a
meeting, the Trustee shall vote as such holder, or shall consent
with respect thereto or take such other action as is appropriate,
in accordance with the instructions of the Owners of a majority
in aggregate principal amount of the Bonds then Outstanding and
voting, or, if the Owners of a majority in aggregate principal
amount of the Bonds then Outstanding do not vote, then
proportionately with what the Trustee reasonably believes will be
the vote or consent of all other MSE Bonds then outstanding under
the Company Mortgage.
Notwithstanding the foregoing, the Trustee shall not vote as
such holder in favor of, or give its consent to, any modification
of the Company Mortgage which is correlative to a modification of
this Indenture which would require the approval of the Owners of
the Bonds, except upon notification by the Trustee to the Owners
of the Bonds of such proposal and consent thereto by the Owners
of the aggregate principal amount of the Bonds then Outstanding
which would be required for such correlative modification of this
Indenture.]
ARTICLE
SUPPLEMENTAL INDENTURES
Supplemental Indentures Not Requiring Consent of
Bondholders. The Issuer and the Trustee may with the prior
consent of the Company and with an opinion of Bond Counsel to the
effect that such action will not impair the exclusion of the
interest on the Bonds from gross income for purposes of federal
income taxation, but without the consent of, or notice to, any of
the Owners of the Bonds, enter into an indenture or indentures
supplemental to this Indenture as shall not be inconsistent with
the terms and provisions hereof for any one or more of the
following purposes:
to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such manner
as shall not in the opinion of the Trustee impair the security
hereof or adversely affect the Owners of the Bonds;
to grant to or confer upon the Trustee for the
benefit of the Owners of the Bonds any additional rights,
remedies, powers or authorities that may lawfully be granted to
or conferred upon the Owners of the Bonds or the Trustee;
to add additional covenants of the Issuer, or to
surrender any right or power herein conferred upon the Issuer;
to subject to this Indenture additional revenues,
properties or collateral; and
to modify, amend or supplement this Indenture or
any indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939, as amended, or any similar federal statute hereafter in
effect or to permit the qualification of the Bonds for sale under
the securities laws of any of the states of the United States,
and, if they so determine, to add to this Indenture or any
indenture supplemental hereto such other terms, conditions and
provisions as may be permitted by said Trust Indenture Act of
1939 or similar federal statute.
Supplemental Indentures Requiring Consent of Bondholders.
Exclusive of Supplemental Indentures covered by Section 10.01
hereof and subject to the terms and provisions contained in this
Section 10.02, and not otherwise, the Owners of not less than a
majority in aggregate principal amount of the Bonds then
Outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such other indenture or indentures supplemental hereto
as shall be deemed necessary and desirable by the Trustee for the
purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any indenture supplemental
hereto; provided, however, that nothing in this Section 10.02
contained shall permit, or be construed as permitting (i) an
extension of the maturity date of the principal of or the
interest on any Bond issued hereunder, (ii) a reduction in the
principal amount of, or redemption premium on, any Bond or Bonds
or the rate or rates of interest thereon, or (iii) a reduction in
the aggregate principal amount of the Bonds required for consent
to such Supplemental Indenture.
If at any time the Issuer shall request the Trustee to enter
into any such Supplemental Indenture for any of the purposes of
this Section 10.02, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause Notice By Mail of the
proposed execution of such Supplemental Indenture to be given to
the Owners of all Outstanding Bonds. Such notice shall briefly
set forth the nature of the proposed Supplemental Indenture and
shall state that copies thereof are on file at the principal
office of the Trustee for inspection by all bondholders. If,
within sixty (60) days or such longer period as shall be
prescribed by the Issuer following the mailing of such notice,
the Owners of not less than a majority in aggregate principal
amount of the Bonds Outstanding at the time of the execution of
any such Supplemental Indenture shall have consented to and
approved the execution thereof as herein provided, no Owner of
any Bond shall have any right to object to any of the terms and
provisions contained herein, or the operation thereof, or in any
manner to question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Issuer from executing the
same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such Supplemental Indenture
as in this Section 10.02 permitted and provided, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and without the necessity for notation on the
Outstanding Bonds.
Anything herein to the contrary notwithstanding, a
Supplemental Indenture under this Article X which affects the
rights of the Company shall not become effective unless and until
the Company shall have consented to the execution and delivery of
such Supplemental Indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
publication of notice of the proposed execution of such
Supplemental Indenture as provided in this Section 10.02. The
Company shall be deemed to have consented to the execution and
delivery of any such Supplemental Indenture if the Trustee
receives a letter or other instrument signed by an authorized
officer of the Company expressing consent.
Trustee Authorized to Join in Supplements; Reliance on
Counsel. The Trustee is authorized to join with the Issuer in
the execution and delivery of any Supplemental Indenture
permitted by this Article X and in so doing shall be fully
protected by an opinion of counsel who may be counsel for the
Issuer or the Company that such Supplemental Indenture is so
permitted and has been duly authorized by the Issuer and that all
things necessary to make it a valid and binding Supplemental
Indenture have been done.
ARTICLE
AMENDMENT OF AGREEMENT
Amendments, etc., to Agreement Not Requiring Consent of
Bondholders. The Issuer and the Trustee shall, without the
consent of or notice to the Owners of the Bonds, consent to any
amendment, change or modification of the Agreement as may be (i)
required by the provisions of the Agreement or this Indenture,
(ii) for the purpose of curing any ambiguity or formal defect or
omission, (iii) in connection with the Project so as to more
precisely identify the same or substitute or add additional
facilities acquired in accordance with the provisions of the
Agreement, or (iv) in connection with any other change therein
which, in the judgment of the Trustee, is not to the prejudice of
the Trustee or the Owners of the Bonds; provided, however, that
as a condition of such consent, there may be required an opinion
of Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
Amendments, etc., to Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications
as provided in Section 11.01 hereof, neither the Issuer nor the
Trustee shall consent to any other amendment, change or
modification of the Agreement without publication of notice and
the written approval or consent of the Owners of not less than a
majority in aggregate principal amount of the Bonds at the time
Outstanding given and procured as in this Section 11.02 provided.
If at any time the Issuer and the Company shall request the
consent of the Trustee to any such proposed amendment, change or
modification of the Agreement, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, give Notice
By Mail of such proposed amendment, change or modification in the
same manner as provided by Section 10.02 hereof with respect to
Supplemental Indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are
on file with the Trustee for inspection by all Owners of the
Bonds.
Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel. The Trustee is authorized to join with the
Issuer in the execution and delivery of any amendment permitted
by this Article XI and in so doing shall be fully protected by an
opinion of counsel, who may be counsel for the Issuer or the
Company, that such amendment is so permitted and has been duly
authorized by the Issuer and that all things necessary to make it
a valid and binding agreement have been done.
ARTICLE
MISCELLANEOUS
Consents, etc., of Owners of Bonds. Any consent, request,
direction, approval, objection or other instrument required by
this Indenture to be signed and executed by the bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such Owners of the Bonds in person or by
agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent and of the
ownership of Bonds, if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall
be conclusive in favor of the Trustee with regard to any action
taken by it under such request or other instrument, namely the
fact and date of the execution by any person of any such writing
may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within
such jurisdiction that the person signing such writing
acknowledged before him the execution thereof, or by an affidavit
of any witness to such execution. For all purposes of this
Indenture and of the proceedings for the enforcement hereof, such
person shall be deemed to continue to be the Owner of such Bond
until the Trustee shall have received notice in writing to the
contrary.
Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be
implied from this Indenture, or the Bonds, is intended or shall
be construed to give to any person or company other than the
Company, the parties hereto, and the Owners of the Bonds, any
legal or equitable right, remedy or claim under or in respect of
this Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions
and provisions hereof are intended to be and are for the sole and
exclusive benefit of the Company, the parties hereto and the
Owners of the Bonds as herein provided.
Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be illegal, inoperative
or unenforceable, the same shall not affect any other provision
or provisions herein contained or render the same invalid,
inoperative, or unenforceable to any extent whatever.
Notices. Any notice, request, complaint, demand,
communication or other paper shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid, or sent by telegram, addressed
as follows: If to the Issuer, at the Office of the Chancery
Clerk, Post Office Box 449, Port Gibson, Mississippi 39150; if to
the Trustee, at Post Office Box 23100, Jackson, Mississippi 39225-
3100, Attention: Corporate Trust Administration Department; and
if to the Company at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: [Treasurer]. A duplicate copy of each notice
required to be given hereunder by either the Issuer or the
Trustee shall also be given to the Company, and a duplicate copy
of each notice required to be given hereunder by the Trustee to
either the Issuer or the Company shall also be given to the
other. The Issuer, the Company and the Trustee may, by notice
given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications
shall be sent.
Trustee as Paying Agent. The Trustee is hereby designated
and agrees to act as Paying Agent for and in respect to the
Bonds.
Payments Due on Sundays and Holidays. In any case where
the date of maturity of interest on or principal of Bonds or the
date fixed for redemption of any Bonds shall be in the city of
payment a Sunday or a legal holiday or a day on which banking
institutions are authorized by law to close, then payment of
interest or principal (and redemption premium, if any) need not
be made on such date but may be made on the next succeeding
business day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no
interest on such payment shall accrue for the period after such
date.
Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Applicable Provisions of Law. This Indenture shall be
governed by and construed in accordance with the internal laws of
the State.
Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the
scope or intent of any provisions or Sections of this Indenture.
No Liability of Issuer. No breach or violation of any
covenant, agreement or undertaking contained in this Indenture
shall impose any pecuniary liability upon the Issuer or any
charge upon its general credit or against its taxing powers, but
the Issuer shall nonetheless be obligated with respect to, and
liable to the extent of, the Trust Estate specifically pledged
hereunder.
<PAGE>
IN WITNESS WHEREOF, CLAIBORNE COUNTY, MISSISSIPPI, has
caused this Indenture to be executed by the President of its
Board of Supervisors, and its seal to be hereunto affixed,
attested by the Clerk of said Board, and Deposit Guaranty
National Bank, as Trustee, has caused this Indenture to be
executed and its corporate seal to be hereunto affixed and
attested, all by its duly authorized officers, all as of the date
first above written.
CLAIBORNE COUNTY, MISSISSIPPI
By:________________________________
President, Board of Supervisors
Attest:
_____________________________
Clerk, Board of Supervisors
DEPOSIT GUARANTY NATIONAL BANK,
TRUSTEE
By:________________________________
Vice President and Trust Officer
Attest:
_____________________________
<PAGE>
EXHIBIT A TO INDENTURE
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
CLAIBORNE COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
(SYSTEM ENERGY RESOURCES, INC. PROJECT)
SERIES 1995
No. R-_________ $______________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
REGISTERED OWNER:
PRINCIPAL SUM:
KNOW ALL MEN BY THESE PRESENTS THAT CLAIBORNE COUNTY,
MISSISSIPPI (the "Issuer"), a body politic and corporate and a
political subdivision duly created and validly existing pursuant
to the laws and constitution of the State of Mississippi (the
"State"), for value received, promises to pay, solely from the
source and as hereinafter provided, to the registered owner named
above, or registered assigns, the principal sum specified above
on the maturity date specified above (or earlier as hereinafter
referred to) and in like manner and solely from the same source
to pay interest on said sum from the date determined as described
in the Indenture referred to on the reverse hereof at the rate of
_____ per centum (__%) per annum, on ___________ and ___________
of each year commencing _______________, 1995, until the
principal sum is paid or duly provided for. Interest on the
Bonds shall be computed on the basis of a 360-day year consisting
of twelve 30-day months. Principal of and redemption premium, if
any, and interest on this Bond are payable in lawful money of the
United States of America at the principal corporate trust office
of Deposit Guaranty National Bank, One Deposit Guaranty Plaza, P.
O. Box 23100, Jackson, Mississippi 39225-3100, as paying agent
and trustee under the Indenture, or its successor in trust (the
"Trustee"). Interest hereon shall be payable to the person in
whose name this Bond is registered at the close of business on
the fifteenth day of the month preceding each interest payment
date (whether or not such date is a Business Day); such interest
shall be paid by clearinghouse check mailed to the person
entitled thereto.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH [ON THE REVERSE HEREOF] OR [ON PAGES ____ THROUGH ____
HEREOF], WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
that the issuance of this Bond and the issue of which it forms a
part do not exceed or violate any constitutional or statutory
limitation; and that provision has been made in the Indenture for
the deposit with the Trustee, but only from the Trust Estate
pledged thereunder for the payment of the principal of, and the
redemption premium, if any, and interest on this Bond and the
issue of which it forms a part, of moneys sufficient in amount
for such purposes.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, CLAIBORNE COUNTY, MISSISSIPPI, has
caused this Bond to be executed in its name on its behalf by the
manual or facsimile signature of the President of the Board of
Supervisors, its corporate seal or a facsimile thereof to be
hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of the
Clerk of the Board of Supervisors of Claiborne County,
Mississippi, all as of this ____ day of _________, 1995.
CLAIBORNE COUNTY, MISSISSIPPI
[SEAL] By:________________________________
President, Board of Supervisors
ATTEST:
By: ___________________________
Clerk, Board of Supervisors
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
DATED:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated in
and issued under the provisions of the within-mentioned
Indenture. A signed original of the Opinion of Bond Counsel,
Watkins Ludlam & Stennis, Jackson, Mississippi, pertaining to the
Bonds is on file with the undersigned.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
By:___________________________
Authorized Signatory
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OR
SUPPLEMENTAL PAGE OF THE FORM OF BONDS)
This Bond is one of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 aggregating $44,000,000 in principal amount (the "Bonds")
issued pursuant to the provisions of Sections 31-15-21 through 31-
15-27, Mississippi Code of 1972, as amended (the "Act") and the
Constitution of the State, for the purpose of providing funds
that, together with other funds to be made available therefor,
will be used to refund the Issuer's outstanding Pollution Control
Revenue Bonds Series D (Middle South Energy, Inc. Project) (the
"Prior Bonds"). The Prior Bonds were issued on July 24, 1985, to
defray the cost of acquiring an undivided 90% interest (the
"Project") in certain solid waste disposal facilities and water
pollution control facilities (the "Facilities") at the Grand Gulf
Nuclear Station (the "Plant"), a nuclear electric generating
plant located within Claiborne County approximately six to seven
miles northwest of the City of Port Gibson, Mississippi, which
undivided interest was sold by the Issuer to Middle South Energy,
Inc., now known as System Energy Resources, Inc. (the "Company")
pursuant to an Installment Sale Agreement between the Issuer and
the Company dated as of June 15, 1985; the Company is the owner
of the Project; Entergy Operations, Inc., an affiliate of the
Company, operates the Facilities and the Plant. The Prior Bonds
are refunded with the proceeds of the Bonds and other funds
provided by the Company, pursuant to an Amended and Restated
Installment Sale Agreement between the Issuer and the Company
dated as of May __, 1995 (the "Agreement"). The Bonds are issued
under and are equally and ratably secured by and entitled to the
protection of a Trust Indenture dated as of even date of the
Agreement (the "Indenture") from the Issuer to the Trustee.
Reference is hereby made to the Indenture for a description of
the rights, limitation of rights, duties and obligations of the
Issuer, Trustee, Paying Agent and the Owners of the Bonds.
Capitalized terms used herein not otherwise defined shall have
the meaning ascribed to such terms in the Indenture.
The Bonds are issuable as fully registered Bonds in
denominations of $5,000 or any integral multiple thereof. Bonds,
upon surrender thereof at the principal office of the Trustee,
together with an assignment duly executed by the registered Owner
or his attorney or legal representative in such form as shall be
satisfactory to the Trustee, may, at the option of the registered
Owner thereof, be exchanged for an equal aggregate principal
amount of Bonds, of any denomination or denominations authorized
by the Indenture, and in the same form as the Bonds surrendered
for exchange.
The Bonds are non-callable for redemption prior to
___________. Thereafter, the Bonds are subject to optional
redemption by the Issuer prior to maturity in whole or in part,
in such manner as the Trustee may determine, at any time on or
after _____________, at the redemption prices (expressed as
percentages of principal amount) set forth in the table below
plus accrued interest to the redemption date:
[To Come] [To Come]
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
one hundred eighty (180) days after a final determination or
final action referred to below, at a redemption price equal to
the principal amount thereof plus accrued interest thereon to the
date of redemption, but without premium, if, as a result of any
final determination of a federal court or final action of the
Internal Revenue Service, in a proceeding in which the Company
has received timely notice of and has had an opportunity to
participate at its expense, it is determined that as a result of
the failure of the Company to observe any covenant, agreement or
representation in the Agreement or the Issuer to observe any
covenant, agreement or representation in the Indenture, the
interest payable on the Bonds is not excludable from gross income
of an Owner of a Bond (other than an Owner who is a "substantial
user" of the Project or "related person" within the meaning of
Section 147 of the Code and applicable regulations promulgated
thereunder) under Section 103 of the Code. The Bonds shall be
redeemed, whether in whole or in part, in such principal amount
that the interest payable on the Bonds remaining Outstanding
after such redemption would not be included in the gross income
of an Owner thereof (other than an Owner who is a "substantial
user" or "related person" within the meaning of Section 147(a) of
the Code and applicable regulations promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to _____________, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
If the Bonds cease to be held in book entry form and less
than all of the Bonds shall be called for redemption, the
particular Bonds or portions of registered Bonds to be redeemed
shall be selected by the Trustee by lot or in such other manner
as the Trustee in its discretion may determine; provided,
however, that the portion of any registered Bond to be redeemed
shall be in the principal amount of $5,000 or some multiple
thereof, and that, in selecting Bonds for redemption, the Trustee
shall treat each Bond as representing that number of Bonds which
is obtained by dividing the principal amount of such registered
Bond by $5,000.
At least thirty (30) days but not more than sixty (60) days
before the redemption date of any Bonds the Trustee shall cause a
notice of any such redemption, either in whole or in part, to be
mailed, postage prepaid, to all registered Owners of Bonds to be
redeemed in whole or in part at their addresses as they appear on
the registration books of the Trustee, but failure so to mail any
such notice shall not affect the validity of the proceedings for
such redemption. Each such notice shall set forth the date fixed
for redemption, the redemption price to be paid and, if less than
all of the Bonds then Outstanding shall be called for redemption,
the distinctive numbers and letters, if any, of such Bonds to be
redeemed and, in the case of Bonds to be redeemed in part only,
the portion of the principal amount thereof to be redeemed. In
case any Bond is to be redeemed in part only, the notice of
redemption which relates to such Bond shall state also that on or
after the redemption date, upon surrender of such Bond, a new
Bond in principal amount equal to the unredeemed portion of such
Bond will be issued.
If at the time of giving of notice of an optional redemption
there shall not have been deposited with the Trustee moneys
sufficient to redeem all the Bonds called for redemption, such
notice shall state that it is conditioned upon the deposit of the
redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no
effect unless such moneys are so deposited. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
On the date so designated for redemption, moneys for payment
of the redemption price and accrued interest to the redemption
date being held by the Trustee in trust for the Owners of the
Bonds or portions thereof to be redeemed, the Bonds or portions
of Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of such
Bonds or portions of Bonds on such date, interest on the Bonds or
portions of Bonds so called for redemption shall cease to accrue,
such Bonds or portions of Bonds shall cease to be entitled to any
benefit or security under the Indenture, and the Owners of such
Bonds or portions of Bonds shall have no rights in respect
thereof except to receive payment of the redemption price thereof
and accrued interest to the redemption date and, to the extent
provided in the Indenture, to receive Bonds for any unredeemed
portions of Bonds.
This Bond and the issue of which it forms a part are limited
obligations of the Issuer. The principal of and the premium, if
any, and interest on the Bonds are payable solely out of and
secured by an irrevocable pledge of the Revenues and Receipts of
the Issuer under the Agreement and any other sums which may be
received by the Issuer from or in connection with the issuance of
the Bonds and the sale of the Project to the Company that
constitute a part of the Trust Estate under the Indenture. The
Issuer shall not be obligated to pay the principal of or the
premium, if any, or the interest on the Bonds or other costs
incident thereto from any other source. The Bonds and the
premium, if any, and interest thereon shall never constitute an
indebtedness of the Issuer within the meaning of any
constitutional provision or statutory limitation of the State and
shall never constitute nor give rise to a pecuniary liability of
the Issuer or a charge against the general credit or taxing
powers of the Issuer, the State or any political subdivision
thereof. The Indenture provides that moneys sufficient for the
prompt payment when due of the principal of, premium, if any, and
interest on the Bonds are to be paid to the Trustee for the
account of the Issuer and deposited in trust in the Bond Fund
described therein, and that the Company's Loan Repayment under
the Agreement and the Revenues and Receipts of the Issuer under
the Agreement have been duly assigned to the Trustee to secure
payment of the principal of, and the premium, if any, and
interest on the Bonds issued under the Indenture.
[ As evidence and security in part for the obligation of the
Company to make payment pursuant to the Agreement which
correspond to payments of the principal of the Bonds, the Company
has caused to be delivered to the Trustee the First Mortgage
Bonds issued under the SERI Supplemental Indenture. The Company
Mortgage provides for a first mortgage lien on substantially all
of the property of the Company for the benefit of all holders of
first mortgage bonds issued under the Company Mortgage. The
First Mortgage Bonds bear no interest. The First Mortgage Bonds
are in an aggregate principal amount equal to the sum of: (i)
the aggregate principal amount of the Bonds, and (ii) seven
months (7/12) of the annual interest due on the Bonds computed at
their stated rate.]
[ The obligation of the Company to make any payment of
principal of the First Mortgage Bonds, whether at maturity, upon
redemption or otherwise, shall be reduced by the amount of any
reduction under the Indenture of the amount of the corresponding
payment required to be made by the Issuer thereunder in respect
of the principal of the Bonds plus seven months (7/12) of the
annual interest which was due on the principal amount of the
bonds which is so reduced.]
[ The First Mortgage Bonds will be registered in the name of
and held by the Trustee for the benefit of the Owners of the
Bonds and will not be transferable except to a successor trustee
under the Indenture. At the time any Bonds cease to be
Outstanding under the Indenture, the Trustee will surrender to
the Mortgage Trustees an aggregate principal amount of First
Mortgage Bonds equal to the sum of (i) the aggregate principal
amount of the Bonds which have ceased to be Outstanding and (ii)
seven months (7/12) of the annual interest due on the Bonds which
have ceased to be Outstanding computed their stated rate.]
[ As further security for the obligations of the Company under
the Agreement, the Company has caused to be delivered to the
Trustee the Assignment and the Supplement. The right of the
Trustee to receive any payments as assignee of the Assignment and
the Supplement shall be reduced by the amount of any reduction
under the Indenture of the corresponding payment required to be
made by the Issuer under the Indenture.]
The Indenture prescribes the manner in which it may be
discharged, including a provision that the Bonds shall be deemed
to be paid if Governmental Obligations, as defined therein,
maturing as to principal and interest in such amounts and at such
times as will provide sufficient funds to pay the principal of,
premium, if any, and interest on the Bonds and all fees and
expenses of the Trustee and any Paying Agent, shall have been
deposited with the Trustee, after which, and upon the giving of
notice in accordance with the Indenture, the Bonds shall no
longer be secured by or be entitled to the benefits of the
Indenture, except for any such payment from such Governmental
Obligations. In certain events, on the conditions, in the manner
and with the effect set forth in the Indenture, the principal of
all of the Bonds issued under the Indenture and then Outstanding,
together with interest accrued thereon, may become or may be
declared due and payable before the stated maturity thereof,
subject to rescission of acceleration as provided in the
Indenture.
The Owner of this Bond shall have no right to institute any
action for the enforcement of the Indenture or for the execution
of any trust thereof, except as provided in the Indenture. The
Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Owners of the
Bonds at any time by the Issuer and the Trustee without the
consent of the Owners of the Bonds, and in certain other cases
such modifications may be made only with the consent of the
Owners of not less than sixty-six and two-thirds percent (66-
2/3%) in aggregate principal amount of the Bonds at the time
Outstanding, as set forth in the Indenture. Any such consent or
waiver by the Owner of this Bond shall be conclusive and binding
upon such Owners of this Bond and of any Bond issued upon the
exchange of this Bond whether or not notation of such consent or
waiver is made upon this Bond. The Indenture also contains
provisions permitting the Trustee to waive certain past defaults
thereunder.
This Bond is transferable by the registered Owner hereof in
person or by his attorney or legal representative at the
principal corporate trust office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in
the Indenture and upon surrender and cancellation of this Bond.
Upon any such transfer the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange for this Bond a new
registered Bond or Bonds, registered in the name of the
transferee, of authorized denominations in aggregate principal
amount equal to the principal amount of this Bond.
No covenant or agreement contained in this Bond or
the Indenture shall be deemed to be a covenant or agreement of
any member of the Governing body or any other officer or employee
of the Issuer in his individual capacity, and neither the members
of the Governing Body of the Issuer nor any official executing
this Bond shall be liable personally on this Bond or be subject
to any personal liability or accountability by reason of issuance
of this Bond. This Bond is issued with the intent that the
internal laws of the State shall govern its construction.
<PAGE>
[FORM OF REGISTRATION AND VALIDATION CERTIFICATE]
(To be printed on all Bonds)
REGISTRATION AND VALIDATION CERTIFICATE
STATE OF MISSISSIPPI
[SEAL] COUNTY OF CLAIBORNE
I, the undersigned Clerk of the Board of Supervisors and
Chancery Clerk of Claiborne County, Mississippi, do hereby
certify that the within Bond has been duly registered by me as an
obligation of said county pursuant to law in a book kept in my
office for that purpose, and has been validated and confirmed by
Decree of the Chancery Court of Claiborne County, Mississippi,
rendered on the _____ day of _______________, 1995.
[facsimile signature]
Clerk, Board of Supervisors and
Chancery Clerk of Claiborne County,
Mississippi
<PAGE>
[FORM OF BOND COUNSEL OPINION]
[FORM OF ASSIGNMENT]
(To be endorsed on all Bonds)
ASSIGNMENT
FOR VALUE RECEIVED
the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
the within Bond of
CLAIBORNE COUNTY, MISSISSIPPI
and does hereby irrevocably constitute and appoint
______________________________, Attorney to transfer the said
Bond on the books of the within-named Trustee, with full power of
substitution in the premises.
______________________________
Dated:
In the presence of:
______________________________
Signature Guarantee
[END OF FORM OF BOND]
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of ______,
1995 within my jurisdiction, the within named Edward Carter, Sr.,
and Frank Wilson, duly identified before me, who acknowledged
that they are President and Clerk, respectively, of the Board of
Supervisors of Claiborne County, Mississippi, a county, and that
for and on behalf of said Issuer, and as its act and deed, they
executed and sealed the above and foregoing instrument, after
first having been duly authorized by said Issuer so to do.
___________________________________
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of ________,
1995, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of Deposit Guaranty National Bank, and that for and
on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
___________________________________
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
EXHIBIT B-6
CLAIBORNE COUNTY, MISSISSIPPI
AND
SYSTEM ENERGY RESOURCES, INC.
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of ____________, 1995
__________________
Relating To
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995
<PAGE>
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Installment Sale Agreement.)
Page
PARTIES
PREAMBLES
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
ARTICLE II
REPRESENTATIONS
SECTION 2.01. Representations and Warranties of the Issuer
SECTION 2.02. Representations and Warranties of the Company
ARTICLE III
THE PROJECT
SECTION 3.01. Construction and Equipping of
the Facilities and the Project
SECTION 3.02. Sale of the Project Confirmed
SECTION 3.03. Maintenance of Project
SECTION 3.04. Insurance Required
ARTICLE IV
ISSUANCE OF BONDS
SECTION 4.01. Issuance of the Bonds
SECTION 4.02. Disposition of Bond Proceeds
ARTICLE V
LOAN OF BOND PROCEEDS; PAYMENTS BY COMPANY;
[FIRST MORTGAGE BONDS]
SECTION 5.01. Loan of Bonds Proceeds
SECTION 5.02. Repayment of Loan
SECTION 5.03. [Issuance, Delivery and Surrender of
First Mortgage Bonds]
SECTION 5.04. Payments Assigned; Obligation Absolute
SECTION 5.05. Payment of Expenses and Sums Required
for Payment of Prior Bonds
SECTION 5.06. Indemnification
SECTION 5.07. Payment of Taxes; Discharge of Liens
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.01. Maintenance of Corporate Existence
SECTION 6.02. Permits or Licenses
SECTION 6.03. Issuer's and Trustee's Access to Facilities
SECTION 6.04. Arbitrage Covenant
SECTION 6.05. Use of Facilities
SECTION 6.06. Tax Exempt Status of Bonds
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.01. By the Company
SECTION 7.02. Limitation
ARTICLE VIII
EVENTS OF DEFAULTS AND REMEDIES
SECTION 8.01. Events of Default
SECTION 8.02. Force Majeure
SECTION 8.03. Remedies on Default
SECTION 8.04. No Remedy Exclusive
SECTION 8.05. Agreement to Pay Attorneys' Fees
and Expenses
SECTION 8.06. Waiver of Breach
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
SECTION 9.01. Redemption of Bonds
SECTION 9.02. Purchase of Bonds
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
SECTION 10.01. Recording and Filing
SECTION 10.02. Photocopies and Reproductions
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices
SECTION 11.02. Severability
SECTION 11.03. Execution of counterparts
SECTION 11.04. Amounts Remaining in Bond Fund
SECTION 11.05. Amendments, Changes and Modifications
SECTION 11.06. Governing Law
SECTION 11.07. Authorized company Representatives
SECTION 11.08. Term of the Agreement
SECTION 11.09. No Personal Liability
SECTION 11.10. Parties in Interest
SECTION 11.11. Captions
SIGNATURES AND SEALS
EXHIBITS
ACKNOWLEDGMENTS
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
____________, 1995, by and between Claiborne County, Mississippi,
a public body corporate and politic and a political subdivision
of the State of Mississippi (the "Issuer"), and System Energy
Resources, Inc., a corporation organized and existing under the
laws of the State of Arkansas, duly qualified to do business as a
corporation in the State of Mississippi (the "Company").
WITNESSETH:
WHEREAS, the Issuer is authorized and empowered by the
constitution and laws of the State of Mississippi, especially
Sections 49-17-101 through 49-17-123, Mississippi Code of 1972,
as amended (the "Pollution Control Act"), to acquire, purchase,
construct, enlarge, expand and improve facilities for
eliminating, mitigating, and/or preventing air and water
pollution, including solid waste disposal facilities, to issue
revenue bonds to defray the cost of such facilities, and to
execute an agreement with an industry (as defined in the
Pollution Control Act) for the sale of such facilities to such
industry; and
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the Issuer has heretofore on
July 24, 1985, issued $44,000,000 principal amount of Claiborne
County, Mississippi, Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series D (the "Prior Bonds"),
pursuant to an Indenture of Trust dated as of June 15, 1985,
between the Issuer and Deposit Guaranty National Bank, as trustee
(the "Prior Indenture"); $44,000,000 principal amount of the
Prior Bonds remain outstanding; and
WHEREAS, the Prior Bonds were issued to defray the cost of
acquiring an undivided 90% interest (the "Project") in certain
solid waste disposal facilities and water pollution control
facilities (the "Facilities") at the Grand Gulf Nuclear Station
(the "Plant"), a nuclear electric generating plant located within
Claiborne County, Mississippi, on Bald Hill Road approximately
six to seven miles northwest of the City of Port Gibson,
Mississippi; the Project was sold by the Issuer to Middle South
Energy, Inc., now known as the Company, pursuant to an
Installment Sale Agreement dated as of June 15, 1985, between the
Issuer and the Company (the "Prior Agreement"); the Company is an
"industry" as defined in the Pollution Control Act and is the
owner of the Project; Entergy Operations, Inc., an affiliate of
the Company, operates the Facilities and the Plant; and
WHEREAS, the Issuer is authorized by Sections 31-15-21
through 31-15-27, Mississippi Code of 1972, as amended (the
"Act") to issue revenue refunding bonds, the proceeds of which
may be used, together with other funds to be made available
therefor, to refund the outstanding Prior Bonds; and
WHEREAS, at the request of the Company and pursuant to the
Act, a resolution duly adopted by the Issuer on April 3, 1995
(the "Issuing Resolution") and the Indenture (hereinafter
defined), the Issuer has authorized the issuance of its Pollution
Control Revenue Refunding Bonds (System Energy Resources, Inc.
Project) Series 1995 in the aggregate principal amount of
$44,000,000 (the "Bonds") for the purpose of providing funds
that, together with other funds to be made available therefor by
the Company, will be used to refund all outstanding Prior Bonds,
including the payment of any redemption premium due or to become
due thereon, interest to accrue to the selected redemption date,
and all expenses in connection with such refunding; and
WHEREAS, the Issuer and the Company desire to confirm the
sale of the Project by the Issuer to the Company to effect the
refunding of the Prior Bonds by the issuance of the Bonds and the
lending of the principal proceeds thereof by the Issuer to the
Company for such purpose; and
WHEREAS, the Bonds, the Trustee's Certificate of
Authentication and Clerk's Validation Certificate are to be in
substantially the form set out in Exhibit A to the Indenture,
with appropriate variations, omissions and insertions as
permitted or required by the Indenture; and
WHEREAS, the Issuer has received all authorizations,
approvals and consents required to be obtained prior to the
issuance of the Bonds; and
WHEREAS, the Company has received all authorizations,
approvals and consents required to be obtained prior to its entry
into this Agreement; and
WHEREAS, the Issuer and the Company desire to amend and
restate the Prior Agreement in its entirety and each of its
provisions by the Amended and Restated Installment Sale Agreement
so as to include provision for the lending of the proceeds of the
Bonds to the Company to effect the refunding of the Prior Bonds;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE
DEFINITIONS
Definitions. In addition to the words and terms
elsewhere defined in this Agreement or in the Indenture, the
following words and terms as used in this Agreement shall have
the following meanings unless the context or use indicates
another or different meaning:
"Act" shall mean Sections 31-15-21 through 31-15-27,
Mississippi Code of 1972, as amended.
"Administration Expenses" shall mean the reasonable expenses
incurred by the Issuer with respect to the Agreement, the
Indenture and any transaction or event contemplated by the
Agreement or the Indenture, including the fee of its counsel and
the compensation and reimbursement of expenses and advances
payable to the Trustee, the Paying Agent and the Bond Registrar.
"Agreement" shall mean this Amended and Restated Installment
Sale Agreement between the Issuer and the Company, relating to
the Project, pursuant to which the Issuer shall lend the
principal proceeds of the Bonds to the Company to be used to
refund the Prior Bonds, and any and all modifications,
alterations, amendments and supplements thereto.
["Assignment" shall mean the Thirtieth Assignment of
Availability Agreement, Consent and Agreement between the
Company, the System Companies, the Trustee and the Mortgage
Trustees.]
"Authorized Company Representative" shall mean each person
at the time designated to act on behalf of the Company by written
certificate furnished to the Issuer and the Trustee containing
the specimen signature of such person and signed on behalf of the
Company by its President, any Vice President, its Treasurer or
its Secretary together with any Assistant Secretary.
["Availability Agreement" shall mean the Availability
Agreement dated as of June 21, 1974, as amended from time to
time, among the Company, the System Companies and Arkansas-
Missouri Power Company.]
"Board of Supervisors" shall mean the Board of Supervisors
of Claiborne County, Mississippi, the governing body of the
Issuer.
"Bond Counsel" shall mean any firm of nationally recognized
bond counsel selected by the Company and acceptable to the
Trustee.
"Bond Fund" shall mean the fund created by Section 4.01 of
the Indenture.
"Bond or Bonds" shall mean the $44,000,000 in aggregate
principal amount of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 authorized to be issued under the Indenture.
"Bond Registrar" shall mean the registrar appointed in
accordance with Section 2.05 of the Indenture. "Principal Office"
of the Bond Registrar shall mean the office thereof designated in
writing to the Issuer and the Trustee.
["Capital Funds Agreement" shall mean the Capital Funds
Agreement dated as of June 21, 1974, as it may be amended from
time to time, between Middle South Utilities, Inc., now known as
Entergy Corporation, and the Company.]
"Clerk" shall mean the Clerk of the Governing Body.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Each reference to a section of the Code herein shall be
deemed to include the Internal Revenue Code of 1954, as amended
and in effect prior to enactment of the Tax Reform Act of 1986,
and the United States Treasury Regulations proposed or adopted
thereunder, as the same may be in effect from time to time, to
the extent the same are applicable to the Bonds or the use of
proceeds thereof, unless the context clearly requires otherwise.
"Company" shall mean System Energy Resources, Inc., a corpora
tion organized and existing under the laws of the State of
Arkansas and duly qualified to do business as a foreign corpora
tion in the State of Mississippi, its successors and their
assigns.
"Company Mortgage" shall mean the Mortgage and Deed of Trust,
dated as of June 15, 1977, between the Company and the Mortgage
Trustees, as heretofore and hereafter amended and supplemented
or, in the event that such Mortgage and Deed of Trust should not
be in effect, any similar mortgage providing for a first mortgage
lien on substantially all of the property of the Company.
"Entergy" shall mean Entergy Corporation, a Delaware
corporation, successor to Middle South Utilities, Inc.
"Event of Default" shall mean any event of default specified
in Section 8.01 hereof.
"Facilities" shall mean the real and personal properties,
facilities, machinery and equipment currently existing at the
Plant which are described in Exhibit A to this Agreement, as
revised from time to time to reflect any changes therein,
additions thereto, substitutions therefor and deletions therefrom
permitted by the terms of this Agreement.
[ "First Mortgage Bonds" shall mean the First Mortgage Bonds,
Pollution Control Series ___, issued pursuant to the Twentieth
SERI Supplemental Indenture in the aggregate principal amount of
$___________ and held by the Trustee pursuant to Section 5.03 of
this Agreement.]
"Governing Body" shall mean the Board of Supervisors of the
Issuer.
"Government Obligations" shall mean (a) direct or fully
guaranteed obligations of the United States of America (including
any such securities issued or held in book-entry form), and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations, or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" shall mean the Indenture of Trust, dated as of
May __, 1995, between the Issuer and the Trustee, and any and all
modifications, alterations, amendments and supplements thereto.
"Investment Securities" shall mean any of the following
obligations or securities which may be lawfully acquired under
the laws of the State of Mississippi on which neither the Company
nor the Issuer nor any of their respective affiliates or
subsidiaries is the obligor, contingently or otherwise, (a)
Government Obligations; (b) interest bearing deposit accounts
(which may be represented by certificates of deposit) in
national, state or foreign banks (which may include the Trustee,
the Paying Agent and the Bond Registrar) having a combined
capital and surplus of not less than $50,000,000; (c) bankers'
acceptances drawn on and accepted by commercial banks (which may
include the Trustee, the Paying Agent and the Bond Registrar)
having a combined capital and surplus of not less than
$10,000,000; (d)(i) direct obligations of, (ii) obligations the
principal of and interest on which are unconditionally guaranteed
by, and (iii) any other obligations, the interest on which is
excluded from gross income for purposes of federal income
taxation issued by, any State of the United States of America,
the District of Columbia or the Commonwealth of Puerto Rico, or
any political subdivision, agency, authority or other
instrumentality of any of the foregoing, which, in any case, are
rated by a nationally recognized rating agency in any of its
three highest Rating Categories; (e) obligations of any agency or
instrumentality of the United States of America; (f) commercial
or finance company paper which is rated by a nationally
recognized rating agency in any of its three highest Rating
Categories; and (g) corporate debt securities issued by cor
porations having debt securities rated by a nationally recognized
rating agency in any of its three highest Rating Categories.
"Issuer" shall mean Claiborne County, Mississippi, a politi
cal subdivision organized and existing under the Constitution and
laws of the State of Mississippi, its successors and their
assigns.
"Loan Repayment" shall mean the payments required to be made
by the Company pursuant to Section 5.02 of this Agreement.
"Mortgage Trustees" shall mean United States Trust Company of
New York and Gerald F. Ganey, successor to Malcolm J. Hood, as
trustees under the Company Mortgage.
"Notice by Mail" or "notice" of any action or condition "by
Mail" shall mean a written notice meeting the requirements of the
Indenture mailed by first-class mail to the Owners of specified
registered Bonds, at the addresses shown in the registration
books maintained pursuant to Section 2.05 of the Indenture.
"Notice by Publication" or "notice" of any action or condi
tion "by Publication" shall mean publication of a notice meeting
the requirements of the Indenture in a newspaper or financial
journal of general circulation in The City of New York, New York,
which carries financial news, is printed in the English language
and is customarily published on each business day; provided,
however, that any successive weekly or monthly publication of
notice required hereunder may be made, unless otherwise expressly
provided herein, on the same or different days of the week and in
the same or different newspapers or financial journals; and
provided, further, that if, because of the temporary or permanent
suspension of the publication or general circulation of any
newspaper or financial journal or for any other reason, it is
impossible or impracticable to publish such notice in the manner
herein described, then such publication in lieu thereof as shall
be made with the approval of the Trustee (or, if there be no
trustee hereunder, the Issuer) shall constitute a sufficient
publication of such notice.
"Outstanding," when used in reference to the Bonds shall
mean, as on any particular date, the aggregate of all Bonds
authenticated and delivered under the Indenture except:
(a) those cancelled on or prior to such date or delivered to
or acquired by the Trustee on or prior to such date for
cancellation;
(b) those deemed to be paid in accordance with Article VII of
the Indenture; and
(c) those in lieu of or in exchange or substitution for which
other Bonds shall have been authenticated and delivered pursuant
to the Indenture, unless proof satisfactory to the Trustee and
the Company is presented that such Bond is held by a bona fide
holder in due course.
"Owner" shall mean the person, which may be the Company, in
whose name any Bond is registered upon the registration books
maintained pursuant to Section 2.05 of the Indenture.
"Paying Agent" shall mean the paying agent appointed in
accordance with Section 12.05 of the Indenture. "Principal
Office" of the Paying Agent shall mean the office thereof
designated in writing to the Trustee.
"Plant" shall mean the Grand Gulf Nuclear Station located
within the geographical limits of the Issuer on Bald Hill Road
approximately six to seven miles northwest of the City of Port
Gibson, Mississippi, in Claiborne County, Mississippi.
"President" shall mean the President of the Governing Body.
"Project" shall mean the undivided 90% interest in the
Facilities owned by the Company.
"Rating Category" shall mean a generic securities rating
category, without regard to any refinement or gradation of such
rating category by a numerical modifier or otherwise.
"Revenues and Receipts of the Issuer under the Agreement"
shall mean all moneys assigned to and paid or payable to the
Trustee, for the account of the Issuer, including the Loan
Repayment and any other payments pursuant to Section 9.01 of this
Agreement, and all receipts of the Trustee which, under the
provisions of the Indenture, reduce the amount of such payments.
["SERI Bonds" shall mean all first mortgage bonds issued and
delivered under the Company Mortgage.]
["SERI Supplemental Indenture" shall mean the Twentieth
Supplemental Indenture relating to the First Mortgage Bonds to
the Company Mortgage dated as of ____________, 1995.]
"State" shall mean the State of Mississippi.
["Supplement" shall mean the Thirtieth Supplementary Capital
Funds Agreement and Assignment among the Company, Entergy, the
Trustee and the Mortgage Trustees.]
"Supplemental Agreement" shall mean any agreement between the
Issuer and the Company modifying, altering, amending or
supplementing this Agreement, in accordance with the terms hereof
and of the Indenture.
"Supplemental Indenture" shall mean any indenture of the
Issuer modifying, altering, amending, supplementing or confirming
the Indenture for any purpose, in accordance with the terms of
the Indenture.
["System Companies" shall mean: Arkansas Power & Light
Company, Louisiana Power & Light Company, Mississippi Power &
Light Company and New Orleans Public Service Inc.]
"Trust Estate" shall mean at any particular time all right,
title and interest of the Issuer in and to: (a) this Agreement
(except its rights under Sections 5.05, 5.06, 5.07, 6.03 and 8.05
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications thereunder), including without limitation the
Revenues and Receipts of the Issuer under the Agreement; (b) [the
First Mortgage Bonds]; (c) [the Assignment and the Supplement,
and all proceeds therefrom;] and (d) all moneys and obligations
(other than Bonds) which at such time are deposited or are
required to be deposited with, or are held or are required to be
held by or on behalf of, the Trustee in trust under any of the
provisions of the Indenture, including, without limitation, all
amounts, deposits or securities and titles and interests which at
such time are subject to the lien of the Indenture, except for
moneys or obligations deposited with or paid to the Trustee for
the redemption or payment of Bonds which are deemed to have been
paid in accordance with Article VII of the Indenture and the
Rebate Fund created under Section 5.09 of the Indenture.
"Trustee" shall mean Deposit Guaranty National Bank, Jackson,
Mississippi, as trustee under the Indenture, its successors in
trust and their assigns.
ARTICLE
REPRESENTATIONS
Representations and Warranties of the Issuer. The Issuer
makes the following representations and warranties as the basis
for the undertakings on the part of the Company herein contained:
The Issuer is a political subdivision of the State
of Mississippi. Under the provisions of the Pollution Control
Act and the Act, the Issuer has the power to enter into the
transactions contemplated by this Agreement and to carry out its
obligations hereunder. The Issuer is duly authorized to execute
and deliver this Agreement. The Issuer agrees that it will do or
cause to be done all things necessary to preserve and keep in
full force and effect its existence.
The Issuer through issuance of the Prior Bonds
provided funds for the acquiring, constructing, installing and
equipping of the Project, and has sold the Project to the
Company, which sale is hereby confirmed.
The Issuer will, upon the request and at the
expense of the Company, cause the execution and delivery from
time to time to the Company of such further instruments of
conveyance as the Company deems to be necessary to effect or
evidence the conveyance to the Company of all of its right, title
and interest in the Project.
The Issuer has authorized the issuance of the
Bonds on the terms set forth in the Indenture for the purpose of
providing funds which, together with other funds available
therefor to be provided by the Company, will be used to refund
the Prior Bonds.
The Issuer has not assigned, and will not, except
as otherwise required by mandatory provisions of law, assign its
interest in this Agreement other than to secure the Bonds.
Representations and Warranties of the Company. The
Company makes the following representations and warranties as the
basis for the undertakings on the part of the Issuer herein
contained:
The Company is a corporation duly incorporated and
in good standing under the laws of the State of Arkansas, and is
qualified to do business in the State of Mississippi, is not in
violation of any provision of its Amended and Restated Articles
of Incorporation, or its Bylaws, as amended, has power to enter
into this Agreement and to perform and observe the agreements and
covenants on its part contained herein, [including without
limitation the power to issue the First Mortgage Bonds as
contemplated herein and in the Company Mortgage,] and has duly
authorized the execution and delivery of this Agreement by proper
corporate action.
The Facilities constitute a pollution control
project of the type authorized and permitted by the Pollution
Control Act.
Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, [including, without limitation, the
issuance and delivery of the First Mortgage Bonds,] conflicts
with or results in a breach of the terms, conditions or
provisions of any restriction or any agreement or instrument to
which the Company is now a party or by which the Company is
bound, or constitutes a default under any of the foregoing, or
results in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of the
Company except any interests created herein and under the Company
Mortgage.
The Securities and Exchange Commission has approved
all matters relating to the Company's participation in the
transactions contemplated by this Agreement which require said
approval, and no other consent, approval, authorization or other
order of any regulatory body or administrative agency or other
governmental body is legally required for the Company's
participation therein, except such as may have been obtained or
may be required under the securities laws of any state.
The Bureau of Pollution Control, Mississippi
Department of Natural Resources, in 1984 found and certified that
the Facilities are necessary and that the design thereof will
result in the elimination, mitigation and/or prevention of air
and water pollution, and did certify that the Facilities, as
designed, are in furtherance of the purpose of abating and
controlling atmospheric pollutants and contaminants or water
pollution.
The statements of fact and representations made by
the Company in the Company's certificate in connection with the
determination of the tax-exempt status of the interest on the
Bonds are true and correct in all material respects.
The Company has good and marketable title to the
Project, free and clear of all claims, liens and encumbrances
other than Permitted Encumbrances as defined in the Company
Mortgage.
ARTICLE
THE PROJECT
Construction and Equipping of the Facilities and the
Project. The Company represents that the Facilities and the
Project have been acquired, constructed, installed and equipped
by the Company in order to effectuate the purposes of the
Pollution Control Act; the Issuer makes no representation or
warranty with respect to the Facilities or Project or their
suitability for any purpose.
Sale of the Project Confirmed. The Issuer confirms that
pursuant to the Prior Agreement it has conveyed and vested in the
Company all of the right, title and interest of the Issuer in the
Project.
Maintenance of Project. The Company agrees that it
shall, at its expense, so long as the Plant is in operation,
cause the Project, and every element and unit thereof, to be
maintained, preserved and kept in good repair, working order and
condition, and from time to time to cause all needful and proper
repairs, replacements, additions, betterments and improvements to
be made thereto; provided, however, that the Company may
discontinue the operation of, or reduce the capacity of, the
Project, or any element or unit thereof, if, in the judgment of
the Company, any such action is necessary or desirable in the
conduct of the business of the Company, or if the Company is
ordered so to do by any regulatory authority having jurisdiction
in the premises, or if the Company intends to sell or dispose of
the same and within a reasonable time shall endeavor to
effectuate such sale.
The Company may at its own expense cause substitutions,
modifications and improvements to be made to the Facilities from
time to time as it, in its discretion, may deem to be desirable
for its uses and purposes, which substitutions, modifications and
improvements shall be included under the terms of this Agreement
as part of the Facilities.
Insurance Required. The Company agrees that the Project
will be insured against loss or damage of such kinds and in such
amounts, including without limitation, fire and extended coverage
risks (including property insurance) in such amounts and covering
such other risks as are customarily insured against by companies
operating similar properties. Any provisions of this Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Project and such shall be paid
directly to the Company.
ARTICLE
ISSUANCE OF BONDS
Issuance of the Bonds. The Issuer shall issue the Bonds
under and in accordance with the Indenture, subject to the
provisions of any bond purchase agreement between the Issuer and
the original purchaser or purchasers of the Bonds. The Company
hereby approves the issuance of the Bonds and all terms and
conditions thereof.
Disposition of Bond Proceeds. The proceeds of the
issuance and sale of the Bonds, other than accrued interest, if
any, paid by the initial purchaser or purchasers thereof, shall
be deposited into the Bond Fund as defined in and established
under the Prior Indenture for the Prior Bonds; such deposit shall
constitute a loan of such principal proceeds to the Company. Any
accrued interest shall be deposited into the Bond Fund, in
accordance with the provisions of the Indenture.
ARTICLE
LOAN OF BOND PROCEEDS; PAYMENTS BY COMPANY;
[FIRST MORTGAGE BONDS]
Loan of Bond Proceeds. Concurrently with the sale and
delivery of the Bonds, the Issuer covenants and agrees that it
will, upon the terms and conditions in this Agreement, lend to
the Company an amount equal to the proceeds (other than accrued
interest) of the Bonds. Pursuant to said covenant and agreement,
the Issuer will issue the Bonds upon the terms and conditions
contained in this Agreement and the Indenture and will cause the
Bond proceeds to be applied as provided in Article IV hereof.
Repayment of Loan. On or before any date that principal
of or interest on the Bonds is due as set forth in the Indenture,
or any date fixed for the unconditional redemption of any or all
of the Bonds pursuant to the Indenture, the Company covenants and
agrees to pay or to cause to be paid in lawful money of the
United States of America to the Trustee for deposit in the Bond
Fund, as a repayment of the loan made to the Company pursuant to
Section 5.01 hereof, a sum equal to the amount payable on such
payment date as principal (whether at maturity, upon redemption
or otherwise) of and interest on the Bonds as provided in the
Indenture. Each payment made pursuant to this Section shall be
made in immediately available funds at the principal corporate
trust office of the Trustee during normal banking hours.
In the event that the payment of the principal of and accrued
interest on the Bonds is accelerated under Section 8.02 of the
Indenture, the Company covenants and agrees to pay, or cause to
be paid, to the Trustee as provided above a sum equal to all the
principal of and interest on the Bonds then Outstanding.
Each payment pursuant to this Section shall at all times be
sufficient to pay the amount of principal (whether at maturity,
upon redemption or otherwise) of and interest payable on the
Bonds on the date that such payment is due; provided that the
obligation of the Company to make any payment of the principal of
or interest on the Bonds, whether at maturity, upon redemption or
otherwise, shall be reduced by the amount of any reduction under
the Indenture of the amount of the corresponding payment required
to be made by the Issuer thereunder in respect of the principal
of or interest on the Bonds.
[Issuance, Delivery and Surrender of First Mortgage
Bonds.]
Concurrently with the issuance and delivery by the
Issuer of the Bonds, and in order to evidence the obligation of
the Company under Section 5.02 hereof to repay those installments
of the Loan Repayments which correspond to payment of the
principal of the Bonds, the excess of the principal amount
thereof to be applied to the payment of accrued interest on the
Bonds, the Company shall issue and deliver to the Issuer a series
of First Mortgage Bonds (i) maturing on the stated maturity date
of the Bonds, (ii) in a principal amount equal to the principal
of the Bonds plus seven months (7/12) of the annual interest on
the Bonds, (iii) containing redemption provisions correlative to
any provisions of the Indenture relating to the Bonds requiring
mandatory redemption thereof, (iv) requiring payments to be made
to the Trustee for the account of the Issuer, and (v) bearing no
interest.
The obligation of the Company to make any payment
of the principal of the First Mortgage Bonds, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Indenture of the amount of the
corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or interest on the
Bonds.
The Issuer shall not sell, assign or transfer the
First Mortgage Bonds, except to the extent provided in Section
5.04 hereof. In view of the pledge and assignment referred to in
said Section 5.04, the Issuer agrees that (i) in satisfaction of
the obligations of the Company set forth in paragraph (b) of this
Section 5.03 with respect to the Bonds, the First Mortgage Bonds
shall be issued and delivered to, registered in the name of and
held by the Trustee for the benefit of the owners and holders
from time to time of the Bonds; (ii) the Indenture shall provide
that the Trustee shall not sell, assign or transfer the First
Mortgage Bonds except to a successor trustee under the Indenture,
and shall surrender the First Mortgage Bonds to the Company
Mortgage Trustees in accordance with the provisions of subsection
(e) of this Section 5.03; and (iii) the Company may take such
actions as it shall deem to be desirable to effect compliance
with such restrictions on transfer, including the placing of an
appropriate legend on each First Mortgage Bond and the issuance
of stop-transfer instructions to the Company Mortgage Trustees or
any other transfer agent under the Company Mortgage.
At the time any Bonds cease to be Outstanding
(other than by reason of the payment or redemption of First
Mortgage Bonds and other than by reason of the applicability of
clause (c) in the definition of "Outstanding" herein) the Issuer
shall cause the Trustee to surrender to the Company Mortgage
Trustees a corresponding principal amount of First Mortgage
Bonds, plus, in the case of the Bonds, a principal amount of the
First Mortgage Bonds equal to seven months (7/12) of the annual
interest payable in respect of the Bonds.
For the purpose of determining whether or not any
payment of the principal of or interest on the First Mortgage
Bonds shall have been made in full, any moneys paid by the
Company in respect of the First Mortgage Bonds which shall have
been withdrawn by the Trustee from the Bond Fund pursuant to
Section ____ of the Indenture shall be deemed to have been paid
by the Company to the Trustee pursuant to Section 5.05 hereof and
not to have been paid by the Company in respect of the First
Mortgage Bonds.
Payments Assigned; Obligation Absolute. It is understood
and agreed that all Loan Repayments to be made by the Company
are, by the Indenture, to be pledged by the Issuer to the
Trustee, and that all rights and interest of the Issuer hereunder
(except for the Issuer's rights under Sections 5.05, 5.06, 5.07,
6.03 and 8.05 hereof and any rights of the Issuer to receive
notices, certificates, requests, requisitions, directions and
other communications hereunder), including the right to receive
the First Mortgage Bonds and the First Mortgage Bonds, are to be
pledged and assigned to the Trustee. The Company assents to such
pledge and assignment and agrees that the obligation of the
Company to make the Loan Repayments shall be absolute,
irrevocable and unconditional and shall not be subject to
cancellation, termination or abatement, or to any defense other
than payment or to any right of set-off, counterclaim or
recoupment arising out of any breach under this Agreement, the
Indenture or otherwise by the Issuer or the Trustee or any other
party, or out of any obligation or liability at any time owing to
the Company by the Issuer, the Trustee or any other party, and,
further, that the Loan Repayments shall continue to be payable at
the times and in the amounts specified herein and in the First
Mortgage Bonds, whether or not the Facilities or the Plant, or
any portion thereof, shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain, and that
there shall be no abatement of or diminution in any such payments
by reason thereof, whether or not the Facilities or the Plant
shall be used or useful, and whether or not any applicable laws,
regulations or standards shall prevent or prohibit the use of the
Facilities or the Plant, or for any other reason.
Payment of Expenses and Sums Required for Payment of
Prior Bonds. The Company shall pay, or cause to be paid, all of
the Administration Expenses of the Issuer, the payment of the
compensation and the reimbursement of expenses and advances of
the Trustee, any Paying Agent, and the Bond Registrar to be made
directly to such entity. The Company shall pay, on or prior to
the redemption date for the Prior Bonds, directly to the Trustee
for the Prior Bonds for deposit in the Bond Fund as defined in
and created under the Prior Indenture, funds sufficient, together
with other funds available therefor, to refund all outstanding
Prior Bonds, including the payment of any redemption premium due
or to become due thereon, interest to accrue to the selected
redemption date, and all expenses in connection with such
refunding and redemption.
Indemnification. The Company will indemnify the Issuer
and the Trustee against claims arising out of ownership and
operation of the Project. The Company will also pay and
discharge and will indemnify and hold harmless the Issuer from
any lien or charge upon payments by the Company to the Issuer
hereunder. If any such claim is asserted, or any such lien or
charge upon payments, or any such taxes, assessments, impositions
or other charges, are sought to be imposed, the Issuer or the
Trustee, as the case may be, will give prompt notice to the
Company, and the Company shall have the sole right and duty to
assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
Under this Section 5.06, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
Payment of Taxes; Discharge of Liens. The Company shall:
(a) pay, or make provision for payment of, all lawful taxes and
assessments, including income, profits, property or excise taxes,
if any, or other county, municipal or governmental charges,
levied or assessed by any federal, state, county or municipal
government or political body upon the Issuer with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts; provided that if the
Company shall first notify the Issuer and the Trustee of its
intention so to do, the Company may in good faith contest any
such lien or charge or claims or demands in appropriate legal
proceedings, and in such event may permit the items so contested
to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the Issuer or the
Trustee shall notify the Company in writing that, in the opinion
of counsel to the Issuer or the Trustee, by nonpayment of any
such items the lien of the Indenture as to the amounts payable
hereunder will be materially endangered, in which event the
Company shall promptly pay and cause to be satisfied and
discharged all such unpaid items.
ARTICLE
SPECIAL COVENANTS AND AGREEMENTS
Maintenance of Corporate Existence. The Company shall
maintain its corporate existence, will not dissolve or otherwise
dispose of all or substantially all its assets and will not
consolidate with or merge with or into another corporation;
provided, however, that the Company may consolidate with or merge
with or into, or sell or otherwise transfer all or substantially
all of its assets (and may thereafter dissolve) to, another
corporation, incorporated under the laws of the United States,
one of the states thereof or the District of Columbia, if the
surviving, resulting or transferee corporation, as the case may
be (if other than the Company), prior to or simultaneously with
such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder [and on the First Mortgage Bonds].
If consolidation, merger or sale or other transfer is made as
permitted by this Section 6.01, the provisions of this Section
6.01 shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section 6.01.
Permits or Licenses. In the event that it may be
necessary for the proper performance of this Agreement on the
part of the Company or the Issuer that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the Issuer, the Company and the Issuer each shall,
upon the request of either, execute such application or
applications.
Issuer's and Trustee's Access to Facilities. The Issuer
and the Trustee shall have the right, upon appropriate prior
notice to the Company, to have reasonable access to the
Facilities during normal business hours for the purpose of making
examinations and inspections of the same.
Arbitrage Covenant. The Issuer covenants that it shall
take no action, and the Company covenants that it shall not
direct or approve the Trustee's taking any action or making any
investment or use of the proceeds of the Bonds, which would cause
the Bonds to be "arbitrage bonds" within the meaning of Section
148 of the Code, including any proposed or final regulations
thereunder that may be applicable to the Bonds at the time of
such action, investment or use. The Company further covenants
that: (a) all actions with respect to the Bonds required by
Section 148(f) of the Code shall be taken; (b) it shall make the
determinations required by paragraph (b) of Section 4.06 of the
Indenture and promptly notify the Trustee of the same, together
with supporting calculations; and (c) it shall within twenty-five
(25) days after (i) the calendar date which corresponds to the
fifth anniversary of the issue date of the Bonds and each fifth
anniversary thereof falling on or after the date of initial
authentication and delivery thereof up to and including the final
maturity of the Bonds, unless the final maturity, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by an Authorized Company
Representative to the effect that the Company is then in
compliance with its covenants contained in clauses (a) and (b) of
this sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
Use of Facilities. The Company shall cause the
Facilities to continue to be used for the abatement or control of
pollution or for the disposal of sewage or solid waste.
Tax Exempt Status of Bonds. The Company covenants and
agrees that it shall not take or authorize or permit any action
to be taken, and has not taken or authorized or permitted any
action to be taken, which adversely affects the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxes pursuant to Section 103 of the Code. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
No changes have been or will be made in the Project
which in any way adversely affect the exclusion of interest on
any of the Bonds from gross income for purposes of federal income
taxation pursuant to Section 103 of the Code;
No action shall be taken that will cause the Bonds
to be "federally guaranteed" as defined in Section 149(b) of the
Code; and
No portion of the proceeds of the Bonds in excess
of 2% of the proceeds thereof (within the meaning of Section
147(g) of the Code) will be used to finance costs of issuance of
the Bonds.
ARTICLE
ASSIGNMENT, LEASING AND SELLING
By the Company. The Company's interest in this
Agreement may be assigned in whole or in part, and the Project
may be leased or sold as a whole or in part (whether a specific
element or unit or an undivided interest), by the Company,
subject, however, to the condition that no assignment, lease or
sale (other than as described in Section 6.01 hereof) shall
relieve the Company from primary liability for its obligations
under Section 5.02 hereof [(including its obligations on the
First Mortgage Bonds)] for Loan Repayment to the Issuer or for
any other of its obligations hereunder, other than those
obligations relating to the operation, maintenance and insurance
of the Project which obligations (to the extent of the interest
assigned, leased or sold and to the extent assumed by the
assignee, lessee or purchaser) shall be deemed to be satisfied
and discharged.
After any lease or sale of any element or unit of the
Project, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Project for the purposes of this Agreement.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any assignment, lease or sale.
Limitation. This Agreement shall not be assigned nor
shall the Project be leased or sold, in whole or in part, except
as provided in this Article VII or in Section 6.01 or in the
Indenture.
ARTICLE
EVENTS OF DEFAULT AND REMEDIES
Events of Default. Each of the following events shall
constitute and is referred to in this Agreement as an "Event of
Default":
[a "Default" as such term is defined in Section
13.01 of the Company Mortgage;]
a failure by the Company to make when due any
payment required to be made pursuant to Section 5.02 hereof,
which failure shall have resulted in an "Event of Default" under
clause (a) or (b) of Section 8.01 of the Indenture; or
a failure by the Company to pay when due any other
amount required to be paid under this Agreement or to observe and
perform any covenant, condition or agreement on its part to be
observed or performed which failure shall continue for a period
of ninety (90) days after written notice, specifying such failure
and requesting that it be remedied, shall have been given to the
Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Issuer and
the Trustee 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.
Force Majeure. The provisions of Section 8.01 hereof are
subject to the following limitations: If by reason of acts of
God; strikes, lockouts or other industrial disturbances; acts of
public enemies; orders or other acts of any kind of the
Government of the United States or of the State of Mississippi,
or any other sovereign entity or body politic, or any department,
agency, political subdivision, court or official of any of them,
or any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; volcanoes; fires;
hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage or accident to machinery; partial or entire
failure of utilities; or any cause or event not reasonably within
the control of the Company, the Company is unable in whole or in
part to carry out any one or more of its agreements or
obligations contained herein, other than its obligations under
Section 5.02 hereof to make Loan Repayments and its obligations
under Sections 5.06, 6.01, 6.04, 6.06 and 9.01 hereof, the
Company shall not be deemed in default by reason of not carrying
out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The Company
agrees, however, to use its best efforts to remedy with all
reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is in the judgment of
the Company unfavorable to the Company.
Remedies on Default.
[Upon the occurrence and continuance of any Event
of Default described in clause (a) of Section 8.01 hereof, the
Trustee, as the holder of the First Mortgage Bonds, shall,
subject to the provisions of the Indenture, have the rights
provided in the Company Mortgage.]
Upon the occurrence and continuance of any Event of
Default described in clause (b) of Section 8.01 hereof, and
further upon the condition that, in accordance with the terms of
the Indenture, the Bonds shall have become immediately due and
payable pursuant to any action taken in accordance with Section
8.02 of the Indenture, the payments required to be paid pursuant
to Section 5.02 hereof shall, without further action, become and
be immediately due and payable.
Upon the occurrence and continuance of any Event of
Default, the Issuer with the prior consent of the Trustee, or the
Trustee, may take any action at law or in equity to collect the
payments then due and thereafter to come due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
Any amounts collected pursuant to action taken
under this Section shall be applied in accordance with the
Indenture.
In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every case the Issuer and the Trustee shall be restored to their
former positions and rights hereunder, respectively, and all
rights, remedies and powers of the Issuer and the Trustee shall
continue as though no such proceeding had been taken.
No Remedy Exclusive. No remedy conferred upon or
reserved to the Issuer or the Trustee by this Agreement is
intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power
accruing upon any Event of Default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as
may be deemed expedient. In order to entitle the Issuer or the
Trustee to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice other than such notice
as may be required in this Article.
Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should default under any of the provisions of
this Agreement and the Issuer or the Trustee should employ
attorneys or incur other expenses for the collection of payments
due hereunder [or on the First Mortgage Bonds] or for the
enforcement of performance or observance of any obligation or
agreement on the part of the Company contained herein, the
Company agrees that it will on demand therefor pay to the Issuer
or the Trustee, as the case may be, the reasonable fees of such
attorneys and such other expenses so incurred.
Waiver of Breach. In the event that any agreement
contained herein shall be breached by either the Company or the
Issuer and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights in
and under this Agreement to the Trustee under the Indenture, the
Issuer shall have no power to waive any default hereunder by the
Company without the consent of the Trustee. Any waiver of any
"Event of Default" under the Indenture and a rescission and
annulment of its consequences[, and any waiver of any "Default"
under the Company Mortgage and a rescission and annulment of its
consequences,] shall constitute a waiver of the corresponding
Event of Default hereunder and a rescission and annulment of the
consequence thereof.
ARTICLE
REDEMPTION OR PURCHASE OF BONDS
Redemption of Bonds. The Issuer shall take the actions
required by the Indenture to discharge the lien thereof through
the redemption, or provision for payment or redemption, of all
Bonds then Outstanding, or to effect the redemption, or provision
for payment or redemption, of less than all the Bonds then
Outstanding, upon receipt by the Issuer and the Trustee from the
Company of a notice designating the principal amount of the Bonds
to be redeemed, or for the payment or redemption of which
provision is to be made, and, in the case of redemption of Bonds,
or provision therefor, specifying the date of redemption, which
shall not be less than forty-five (45) days from the date such
notice is given, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time at which the Bonds are to be
redeemed, or for the payment or redemption of which provision is
to be made. The Company shall furnish to the Trustee, as a
prepayment of the amounts due under Section 5.02 hereof,
sufficient moneys or Government Securities (as defined in the
Indenture) in connection with any such redemption.
Purchase of Bonds. The Company may at any time, and from
time to time, furnish moneys to the Trustee accompanied by a
notice directing the Trustee to apply such moneys to the purchase
in the open market of Bonds in the principal amount specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
ARTICLE
RECORDATION AND OTHER INSTRUMENTS
Recording and Filing. The Company shall record and file,
or cause to be recorded and filed, all documents and statements
required or contemplated in Section 4.04 of the Indenture.
Photocopies and Reproductions. A photocopy or other
reproduction of this Agreement may be filed as a financing
statement pursuant to the Uniform Commercial Code, although the
signatures of the Company and the Issuer on such reproduction are
not original manual signatures.
ARTICLE
MISCELLANEOUS
Notices. Except as otherwise provided in this Agreement,
all notices, certificates or other communications shall be
sufficiently given and shall be deemed given when mailed by
registered or certified mail, postage prepaid, to the Issuer, the
Company or the Trustee. Copies of each notice, certificate or
other communication given hereunder by or to the Company shall be
mailed by registered or certified mail, postage prepaid, to the
Trustee; provided, however, that the effectiveness of any such
notice shall not be affected by the failure to send any such
copies. Notices, certificates or other communications shall be
sent to the following addresses:
Company: System Energy Resources, Inc., 639 Loyola Avenue, New
Orleans, Louisiana 70113.
County: Claiborne County, Mississippi, Post Office Box 449, Port
Gibson, Mississippi 39150, Attention: Chancery Clerk.
Trustee: Deposit Guaranty National Bank, Post Office Box 23100,
Jackson, Mississippi 39225-3100, Attention: Corporate Trust
Department.
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Severability. If any provision of this Agreement shall
be held or deemed to be or shall, in fact, be illegal,
inoperative or unenforceable; the same shall not affect any other
provision or provisions herein contained or render the same
invalid, inoperative, or unenforceable to any extent whatever.
Execution of Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
Amounts Remaining in Bond Fund. It is agreed by the
parties hereto that after payment in full of (i) the Bonds (or
the provision for payment thereof having been made in accordance
with the provisions of the Indenture), (ii) the Administration
Expenses of the Issuer, and (iii) all other amounts required to
be paid under this Agreement and the Indenture, any amounts
remaining in the Bond Fund shall belong to and be paid by the
Trustee to the Company.
Amendments, Changes and Modifications. Except as
otherwise provided in this Agreement or the Indenture, subsequent
to the initial issuance of Bonds and prior to payment in full of
the Bonds (or the provision for payment thereof having been made
in accordance with the provisions of the Indenture), this
Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived, without the
written consent of the Trustee which shall not be unreasonably
withheld.
Governing Law. This Agreement shall be governed
exclusively by and construed in accordance with the applicable
internal laws of the State of Mississippi.
Authorized Company Representatives. An Authorized
Company Representative shall act on behalf of the Company
whenever the approval of the Company is required or the Company
requests the Issuer to take some action, and the Issuer and the
Trustee shall be authorized to act on any such approval or
request and neither party hereto shall have any complaint against
the other or against the Trustee as a result of any such action
taken.
Term of the Agreement. This Agreement shall be in full
force and effect from the date hereof until the right, title and
interest of the Trustee in and to the Trust Estate (as defined in
the Indenture) shall have ceased, determined and become void in
accordance with Article VII of the Indenture and until all
payments required under this Agreement shall have been made.
No Personal Liability. No covenant or agreement
contained in this Agreement shall be deemed to be the covenant or
agreement of any official, officer, agent, or employee of the
Issuer in his individual capacity, and no such person shall be
subject to any personal liability or accountability by reason of
the issuance thereof.
Parties in Interest. This Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Agreement; provided, however, that any
obligation of the Issuer created by or arising out of this
Agreement shall be payable solely out of the revenues derived
from this Agreement or the sale of the Bonds or income earned on
invested funds as provided in the Indenture and shall not
constitute, and no breach of this Agreement by the Issuer shall
impose, a pecuniary liability upon the Issuer or a charge upon
the general credit or against taxing power of the Issuer, the
State, or any political subdivision thereof.
Captions. The captions or headings in this Agreement
are for convenience only and in no way define, limit or describe
the scope or intent of any provisions or sections of this
Agreement.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective seals to be hereunto affixed and attested by
their duly authorized officers, all as of the date first written.
CLAIBORNE COUNTY, MISSISSIPPI
By__________________________________
President, Board of Supervisors
Attest:
_________________________________
Clerk, Board of Supervisors
SYSTEM ENERGY RESOURCES, INC.
By:
Attest:
______________________________
<PAGE>
Exhibit A to
Amended and Restated Installment Sale Agreement
Between Claiborne County, Mississippi
and System Energy Resources, Inc.
DESCRIPTION OF FACILITIES
The Facilities are comprised of the following:
I. Liquid Waste Systems
Circulating Water System, consisting of facilities for
control of thermal pollution of the Mississippi River through the
use of a closed-loop natural draft cooling tower, a pumphouse,
blowdown and make-up water facilities, sodium hypochlorite and
sulfuric acid removal systems, associated plumbing and electrical
equipment, and related facilities, to provide cooling water to
the condenser which in turn condenses exhaust steam discharged
from the turbine.
II. Solid Waste Systems
Spent fuel storage and handling facilities consisting of
portion of cost of spent fuel transfer canal, spent fuel pool,
liners and high density fuel storage racks in the spent fuel
pool, additional spent fuel pool cooling and cleaning capacity,
spent fuel platform, shipping cask pool, spent fuel cask handling
area, cask washdown area, 150 ton crane, spent fuel cask loading
bay and equipment and railroad spur from Auxiliary Building to
main track, and related portion of Auxiliary Building allocable
to spent fuel storage and handling facilities.
The Facilities are situated at the Grand Gulf Nuclear
Station within Claiborne County, Mississippi, on Bald Hill Road
approximately six to seven miles northwest of the City of Port
Gibson, Mississippi, in Claiborne County, Mississippi, in
Sections 1, 2, 3, 4, 5, 6 and 32, Township 12 North, Range 1 East
and Sections 7, 8, 11, 12 and 30, Township 12 North, Range 2
East, of Claiborne County, Mississippi.
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
Personally appeared before me, the undersigned authority in
and for the above county and state, Edward Carter, Sr., and Frank
Wilson, duly identified before me, the President and Clerk,
respectively, of the Board of Supervisors of Claiborne County,
Mississippi, who acknowledged to me that they, being authorized
so to do for and on behalf of and as the act and deed of
Claiborne County, Mississippi, signed, sealed and delivered the
above and foregoing instrument as of the day and year therein
mentioned.
GIVEN under my hand and official seal on this the ____ day
of __________________, 1995.
_____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
(Affix Official Seal)
<PAGE>
STATE OF LOUISIANA
PARISH OF ORLEANS
Personally appeared before me, the undersigned authority in
and for the above parish and state,
______________________________ and _____________________________,
duly identified before me, the __________________ and
_________________, respectively, of System Energy Resources,
Inc., a corporation organized under the laws of the State of
Arkansas, who each acknowledged to me that they, being authorized
so to do for and on behalf of and as the act and deed of System
Energy Resources, Inc., signed and delivered the above and
foregoing instrument as of the day and year therein mentioned.
GIVEN under my hand and official seal on this the ____ day
of ________________, 1995.
______________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
(Affix Official Seal)
EXHIBIT B-10
__________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
INDENTURE, dated as of _________________, 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
_______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series
as contemplated herein; and all acts necessary to make this Indenture
a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by 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, or, if at any time after the date of execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Indenture is located at
____________________________________.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant
to Section 802. "Interest" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of
Columbia or of any county, municipality or other political
subdivision of any thereof, or any department, agency, authority or
other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States 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 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 Out
standing, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as
to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so
owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and
that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor;
(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 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 the
Company's obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such
obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or
extension).
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect
at such time.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to
the Trustee to take any action under any provision of this
Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application
or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each Person signing such 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 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 determining
whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with, the Trustee by
any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by
facsimile transmission, telex or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time
to time designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such party's
name below or to such other address as either party hereto
may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
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: Treasurer
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if transmitted
by facsimile transmission, telex or other direct written
electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given, and shall be
deemed given, to Holders if in writing and mailed, first-
class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail, then
such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived
in writing by the Person entitled to receive such notice,
either before or after the event otherwise to be specified
therein, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such
waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Indenture by, or is
otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture
and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than the
parties hereto, their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed
by and construed in accordance with the laws of the State of
____________, 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 Trusteee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or
a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such series
from Securities of all other series);
(b) any limit upon the aggregate principal amount
of the Securities of such series which may be 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 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 or otherwise; the date or dates
from which such interest shall accrue; the Interest
Payment Dates on which such interest shall be payable
and the Regular Record Date, if any, for the interest
payable on such Securities on any Interest Payment Date;
and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of
such series, or any Tranche thereof, may be effected and
(4) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security
Registrar for such series; and if such is the case, that
the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which and
the terms and conditions upon which the Securities of
such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not
limited to a restriction on a partial redemption by the
Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from
any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such
series, or any Tranche thereof, pursuant to any sinking
fund or other mandatory redemption provisions or at the
option of a Holder thereof and the period or periods
within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which
such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the option
of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if
other than denominations of $1,000 and any integral
multiple thereof;
(j) the currency or currencies, including 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;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may
be converted into or exchanged for shares of capital
stock or other securities of the Company or any other
Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in
respect of the Securities of such series, or any Tranche
thereof, denominated in a currency other than Dollars or
in a composite currency, and any additional or
alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided
in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form, (i)
any limitations on the rights of the Holder or Holders
of such Securities to transfer or exchange the same or
to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive
form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto which
are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such Series,
or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the
registration of transfer or exchange of Securities of
such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in
the definition of Business Day, with respect to the
Securities of such series, or any Tranche thereof; 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, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder to the Company, or
any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, or any Tranche thereof, the Company may execute,
and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of
the tenor of the definitive Securities in lieu of which they
are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their
execution of such Securities; provided, however, that
temporary Securities need not recite specific redemption,
sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, after the preparation of definitive
Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive
Securities of such series or Tranche upon surrender of such
temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for
such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute
and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and
Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities
of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series or any Tranche thereof, a register
(all registers kept in accordance with this Section being
collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities of such series or Tranche and the registration of
transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each
series on a consolidated basis, and such Person is referred
to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding,
the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of
one or more series, or any Tranche or Tranches thereof, shall
be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such
series. The Security Register shall be open for inspection
by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, upon surrender for registration of
transfer of any Security of such series or Tranche at the
office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or Tranche,
the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series
and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, any Security of such series or Tranche
may be exchanged at the option of the Holder, for one or more
new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the
Company, the Trustee or the Security Registrar, as the case
may be, duly executed by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or any
Tranche thereof, no service charge shall be made for any
registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 406
or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange
of (a) Securities of any series, or any Tranche thereof,
during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the
Securities of such series or Tranche called for redemption or
(b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security
of the same series, and 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.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section
and Section 305, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of
and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to
any Person other than the Security Registrar, be delivered to
the Security Registrar and, if not theretofore canceled,
shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in
any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No Securities
shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed
of in accordance with a Company Order delivered to the
Security Registrar and the Trustee, and the Security
Registrar shall promptly deliver a certificate of disposition
to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled
Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security
in accordance with this Section 309 to the Trustee and the
Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche
thereof, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve
30-day months and on the basis of the actual number of days
elapsed within any month in relation to the deemed 30 days of
such month.
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.
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 or
Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such
notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that
such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was
given, that such money was not so received and such
redemption was not required to be made, and the Paying Agent
or Agents for the Securities otherwise to have been redeemed
shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed
at the election of the Company, and any notice of non-
satisfaction of a condition for redemption as aforesaid,
shall be given by the Company or, at the Company's request,
by the Security Registrar in the name and at the expense of
the Company. Notice of mandatory redemption of Securities
shall be given by the Security Registrar in the name and at
the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the case
of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance
with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except
as otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on any
Security the Stated Maturity of which installment is on or
prior to the Redemption Date shall be payable to the Holder
of such Security, or one or more Predecessor Securities,
registered as such at the close of business on the related
Regular Record Date according to the terms of such Security
and subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service
charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such
Holder and of like tenor and in aggregate principal amount
equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of the Securities of
any series, or any Tranche thereof, except as otherwise
specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to as an
"optional sinking fund payment". If provided for by the
terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 502. Each sinking fund
payment shall be applied to the redemption of Securities of
the series or Tranche in respect of which it was made as
provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously called for
redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which
have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking
fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment
if such Securities shall have been previously so applied.
Securities so applied shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an
Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking
fund payment to be made together with such mandatory
sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant
to Section 502 and stating the basis for such credit and
that such Securities have not previously been so
credited, and the Company shall also deliver to the
Trustee any Securities to be so delivered. If the
Company shall not deliver such Officer's Certificate,
the next succeeding sinking fund payment for such series
or Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less than 30
days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified
in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium,
if any, and interest, if any, on the Securities of each
series in accordance with the terms of such Securities and
this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment
for the Securities of each series, or any Tranche thereof, an
office or agency where payment of such Securities shall be
made, where the registration of transfer or exchange of such
Securities may be effected and where notices and demands to
or upon the Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt
notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall
fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof,
or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be effected
and notices and demands in respect thereof may be served at
the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate
one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof, for
any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that,
unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series or Tranche, no
such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such
Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner
specified in Section 106, of any such designation or
rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding,
any office or agency required by this Section may be
maintained at an office of the Company, in which event the
Company shall perform all functions to be performed at such
office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any series, or
any Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if any,
on any of such Securities, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche
thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such 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 such
default, upon the written request of the Trustee, forth
with pay to the Trustee all sums so held in trust by
such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent
and, if so stated in a Company Order delivered to the
Trustee, in accordance with the provisions of Article Seven;
and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment
of the principal of and premium, if any, or interest, if any,
on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become
due and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge, the
Holder of such Security shall, as an unsecured general
creditor and not as a Holder of an Outstanding Security, look
only to the Company for payment of the amount so due and
payable and remaining unpaid, and all liability of the
Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable effort
to cause) all its properties used or useful in the conduct of
its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort
to cause) to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly
conducted; provided, however, that nothing in this Section
shall prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to the
Trustee an Officer's Certificate which need not comply with
Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the
Company's compliance with all conditions and covenants under
this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under
this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a)
Section 602 or any additional covenant or restriction
specified with respect to the Securities of any series, or
any Tranche thereof, as contemplated by Section 301 if before
the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class, shall,
by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or Article
Eleven if before the time for such compliance the Holders of
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) 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 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 to pay when due the
principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on
and prior to the Maturity thereof, and interest earned from
such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have
occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then
due on such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant
to this Section shall be held until such Event of Default
shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of the
following events:
(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.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the
time Outstanding, then in every such case the Trustee or the
Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the
principal amount (or, if any of the Securities of such series
are Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of
such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by
Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) 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;
(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 pursuant to this
Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of
the Securities in respect of which or for the benefit of
which such money shall have been collected and the notation
thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium,
if any, and interest, if any, in respect of which or for
the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal, premium, if any, and interest,
if any, respectively; and
Third: To the Company.
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 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) except as otherwise provided in Section 801,
the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee shall have
actual knowledge of the Event of Default or (2) written
notice of such Event of Default shall have been given to
the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall
be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes responsibility
for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company
with the same rights it would have if it were not the
Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds, except to the extent
required by law. The Trustee shall be under no liability for
interest on or investment of any money received by it
hereunder except as expressly provided herein or otherwise
agreed with, and for the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time 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.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide Holder
for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be 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.
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,
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 joint 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 Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with, and
subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of
one or more series, or any Tranche thereof, shall be made
pursuant to this Section, the Securities of such series or
Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated
upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section
102 and need not be accompanied by an Opinion of Counsel),
shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the
Trustee, an Authenticating Agent having an office in a Place
of Payment designated by the Company with respect to such
series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and ___________
in each year, commencing _______________, and at such other
times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as
to the names and addresses of the Holders, and the Trustee
shall preserve such information and similar information
received by it in any other capacity and afford to the Holders
access to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit to the
Holders and the Commission a report, dated as of the next
preceding _______________, with respect to any events and
other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required by
the Trust Indenture Act. The Trustee shall transmit to the
Holders 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, or except to
increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or of one or more Tranches
thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of
any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any 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 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.
<PAGE>
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:
_______________________
______________________________, 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 _____________________ )
) 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 a
_________________ of ______________________________, one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by
like authority.
________________________________
Notary Public
[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 B-11
__________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of ______________, 1995
__________________________________________
<PAGE>
INDENTURE, dated as of _________________, 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
_______________________________________, a _____________________,
having its principal corporate trust office at
______________________________, as Trustee (herein called the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as contemplated herein; and all acts
necessary to make this Indenture a valid agreement of the Company
have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other 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 de
fined 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 Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, or, if at any time after the
date of execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body, if any, performing
such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written re
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at
_____________________________________________________.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect
to such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section
801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are
unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the
holders of such certificates, depositary receipts or
other instruments the full amount received by such
custodian in respect of such obligations or specific
payments and shall not be permitted to make any
deduction therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company
or any other obligor upon the Securities or any
Affiliate of the Company or of such other
obligor (unless the Company, such Affiliate or
such obligor owns all Securities Outstanding
under this Indenture, or all Outstanding
Securities of each such series and each such
Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded
and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be pro
tected in relying upon any such request, demand,
authorization, direction, notice, consent or
waiver or upon any such determination as to the
presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities
so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to
such Securities and that the pledgee is not the
Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Dis
count Security that shall be deemed to be
Outstanding for such purposes shall be the
amount of the principal thereof that would be
due and payable as of the date of such
determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 802;
and
(z) the principal amount of any
Security which is denominated in a currency
other than Dollars or in a composite currency
that shall be deemed to be Outstanding for such
purposes shall be the amount of Dollars which
could have been purchased by the principal
amount (or, in the case of a Discount Security,
the Dollar equivalent on the date determined as
set forth below of the amount determined as
provided in (y) above) of such currency or
composite currency evidenced by such Security,
in each such case certified to the Trustee in an
Officer's Certificate, based (i) on the average
of the mean of the buying and selling spot rates
quoted by 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 deter
mination which shall be as consistent as
practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal of
and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities
of a series from time to time any or all of the specific
terms of which Securities, including without limitation
the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption pro
visions, 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 or unincorporated
organization or any Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section 301,
at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed (to the extent lawful) to
evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company.
"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 the Company's obligations in
respect of which are evidenced or secured in whole or in
part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal of
such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are
of the same series and (b) have identical terms except as
to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute, as
in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor
Trustee shall have become such with respect to one or more
series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities
of that series.
"United States" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in
the case of any such application or request as to which
the furnishing of such documents is specifically required
by any provision of this Indenture relating to such
particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion
of each such Person, such condition or covenant has
been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers
of the Company stating that the information with respect
to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or
opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect
as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect
to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at
the request of the Company which could not have been
taken had the original document or instrument not
contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and
effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities
issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding
Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and
evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced
by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and
any such record. Except as herein otherwise
expressly provided, such action shall become
effective when such instrument or instruments or
record or both are delivered to the Trustee and,
where it is hereby expressly required, to the
Company. Such instrument or instruments and any
such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to 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 proviso to the
definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated by
such instruments, any such instrument executed and
delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by
written notice by such Holder or any subsequent
Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from Holders
any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in
advance a record date for the determination of
Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or
after such record date, but only the Holders of
record at the close of business on the record date
shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite
proportion of the Outstanding Securities have
authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of the
record date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company
by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered
personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such
telephone number or other electronic communications
address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such
party's name below or to such other address as either
party hereto may from time to time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
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: Treasurer
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive such
notice, either before or after the event otherwise to be
specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders, and so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of ____________, except to the extent that the
law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board
Resolution or Officer's Certificate which establishes the
terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in
lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and,
if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall
be in substantially the form or forms thereof established
in the indenture supplemental hereto establishing such
series or in a Board Resolution establishing such series,
or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their
execution of the Securities. If the form or forms of
Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's
Certificate, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner as
shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of
the series designated therein referred to in
the within-mentioned Indenture.
_________________________________
as Trustee
By:
_____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series
(which shall distinguish the Securities of such
series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of 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 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 or otherwise; the date or
dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall
be payable and the Regular Record Date, if any, for
the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if
any, to extend the interest payment periods and the
duration of any such extension as contemplated by
Section 312; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by
which (1) the principal of and premium, if any, and
interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices and
demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security
Registrar for such series; and if such is the case,
that the principal of such Securities shall be
payable without presentment or surrender thereof;
(g) the period or periods within which, or the
date or dates on which, the price or prices at which
and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option
of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any, of
the Company to redeem or purchase the Securities of
such series, or any Tranche thereof, pursuant to any
sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and
the period or periods within which or the date or
dates on which, the price or prices at which and the
terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in the
case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including com
posite currencies, in which payment of the principal
of and premium, if any, and interest, if any, on the
Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series,
or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a
coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be
payable at the election of the Company or a Holder
thereof, in securities or other property, the type
and amount of such securities or other property, or
the formulary or other method or other means by
which such amount shall be determined, and the
period or periods within which, and the terms and
conditions upon which, any such election may be
made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to
an index or other fact or event ascertainable
outside this Indenture, the manner in which such
amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to the
Securities of such series, and any covenants of the
Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company or
any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible Obligations
in respect of the Securities of such series, or any
Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any
additional or alternative provisions for the
reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction
and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of temporary
form and (iii) any and all other matters incidental
to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause (g)
of Section 1201;
(t) to the extent not established pursuant to
clause (r) of this paragraph, any limitations on the
rights of the Holders of the Securities of such
Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of transfer
or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of such
series, or any Tranche thereof, not inconsistent
with the provisions of this Indenture.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment to
Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental hereto
or the Board Resolution which establishes such series, or
the Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of
such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall
be determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized
Officer. 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 creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the
date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee or its agent
by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall
never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and
other variations as the officers executing such
Securities may determine, as evidenced by their execution
of such Securities; provided, however, that temporary
Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any series,
or any Tranche thereof, after the preparation of defini
tive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section 602
in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall,
except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove
provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect
to the Securities of each series or any Tranche thereof,
a register (all registers kept in accordance with this
Section being collectively referred to as the "Security
Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series
or Tranche and the registration of transfer thereof. The
Company shall designate one Person to maintain the
Security Register for the Securities of each series on a
consolidated basis, and such Person is referred to
herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of
its offices as an office in which a register with respect
to the Securities of one or more series, or any Tranche
or Tranches thereof, shall be maintained, and the Company
may designate itself the Security Registrar with respect
to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the
Company at all reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or
more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series
and Tranche, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of
the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or
to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately preceding
the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series, and 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.
Subject to Section 312, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on a date (herein called a "Special
Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name
and at the expense of the Company, shall promptly
cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close
of business on such Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which
such Securities may be listed, and upon such notice
as may be required by such exchange, if, after
notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if
not theretofore canceled, shall be promptly canceled by
the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Security Registrar
shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company
unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned
to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance
with this Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of
the actual number of days elapsed within any month in
relation to the deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or
any Tranche thereof, denominated in any currency other
than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to
such Securities as contemplated by Section 301, the obli
gation of the Company to make any payment of the
principal thereof, or the premium or interest thereon,
shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is
in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate
to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctua
tion, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in
the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, or Tranches thereof, if so specified as
contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such
Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or an
Officer's Certificate. The Company shall, at least 45
days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemp
tion Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction
or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series,
or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by
the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such
provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and
which may, in any case, provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any
series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to
the Redemption Date, will become due and payable
upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, unless it shall
have been specified as contemplated by Section 301
with respect to such Securities that such surrender
shall not be required,
(f) that the redemption is for a sinking or
other fund, if such is the case, and
(g) such other matters as the Company shall
deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that
such redemption shall be conditional upon the receipt by
the Paying Agent or Agents for such Securities, on or
prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any,
and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall
be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that
such notice of redemption contains such a condition and
such money is not so received, the redemption shall not
be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of
redemption was given, that such money was not so received
and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to
have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered
for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to
such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the terms
of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series, or
any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms
of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series,
or any Tranche thereof, the cash amount of any 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 aggregate
sinking fund payment which is to be satisfied by
delivering and crediting Securities of such series
or Tranche pursuant to Section 502 and stating the
basis for such credit and that such Securities have
not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver
such Officer's Certificate, the next succeeding
sinking fund payment for such series or Tranche
shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30
days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in
Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the Securities
of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any Tranche
thereof, an office or agency where payment of such
Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected
and where notices and demands to or upon the Company in
respect of such Securities and this Indenture may be
served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice
to the Holders of any such change in the manner specified
in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of
Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made,
registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may
be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and
of any change in the location of any such other office or
agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company, in
which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest,
if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of
the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
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
such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to
the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any,
or interest has become due and payable shall be paid to
the Company on Company Request, or, if then held by the
Company, shall be discharged from such trust; and, upon
such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company
cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or,
with respect to property owned in common with others,
make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried on
in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than __________________ in each year,
commencing _______________, the Company shall deliver to
the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such
compliance to be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in (a) Section 602 or any additional covenant or
restriction specified with respect to the Securities of
any series, or any Tranche thereof, as contemplated by
Section 301 if before the time for such compliance the
Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with Section
602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if
before the time for such compliance the Holders of 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 Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security
or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been
satisfied and discharged as contemplated in this Section.
In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect
of any Securities or portions thereof except that, for
any reason, the Officer's Certificate specified in clause
(z) 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
interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal
of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in re
spect of which such deposit was made, all subject, how
ever, to the provisions of Section 603; provided, how
ever, that, so long as there shall not have occurred and
be continuing an Event of Default any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall,
to the extent practicable, be invested 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 to pay when due
the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and inter
est earned from such reinvestment shall be paid over to
the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so
long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred
and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of the
following events:
(a) failure to pay interest, if any, on any
Security of such series within sixty (60) days after
the same becomes due and payable (whether or not
payment is prohibited by the provisions of Article
Fifteen hereof); provided, however, that a valid
extension of the interest payment period by the
Company as contemplated in Section 312 of this
Indenture shall not constitute a failure to pay
interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series when
due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen
hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or more
series of Securities other than such series) for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the
Holders of at least 33% in principal amount of the
Outstanding Securities of such series, a written
notice specifying such default or breach and
requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless
the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not
less than the principal amount of Securities the
Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such
period prior to its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action
is initiated by the Company within such period and
is being diligently pursued; or
(d) the entry by a court having jurisdiction
in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons
other than the Company seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any
such decree or order for relief or any such other
decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in a case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or
of any substantial part of its property, or the
making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due, or the authorization of such action by the
Board of Directors; or
(f) any other Event of Default specified with
respect to Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred and
be continuing with respect to Securities of any series at
the time Outstanding, then in every such case the Trustee
or the Holders of not less than 33% in principal amount
of the Outstanding Securities of such series may declare
the principal amount (or, if any of the Securities of
such series are Discount Securities, such portion of the
principal amount of such Securities as may be specified
in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and
payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and
upon receipt by the Company of notice of such declaration
such principal amount (or specified amount) shall become
immediately due and payable (provided that the payment of
principal of such Securities shall remain subordinated to
the extent provided in Article Fifteen hereof); 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 become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default with
respect to Securities of such series, other than the
non-payment of the principal of Securities of such
series which shall have become due solely by such
declaration of acceleration, shall have been cured
or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal, premium, if any, and interest,
if any, owing and unpaid in respect of the
Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this Arti
cle 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 Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given
written notice to the Trustee of a continuing Event
of Default with respect to the Securities of such
series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of all series in respect of which an
Event of Default shall have occurred and be
continuing, considered as one class, shall have made
written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall
have failed to institute any such proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the Trustee
during such 60-day period by the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be
continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808.Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture, and
could not involve the Trustee in personal liability
in circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(a) in the payment of the principal of or
premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or provision
hereof which under Section 1202 cannot be modified
or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to
any suit instituted by any Holder for the enforcement of
the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event
of Default with respect to Securities of any series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
Trustee and conforming to the requirements of
this Indenture; but in the case of any such
certificates or opinions which by any provision
hereof are specifically required to be
furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred and
be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the
rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be
construed to limit the effect of subsection (a)
of this Section;
(2) the Trustee shall not be liable
for any error of judgment made in good faith by
a Responsible Officer, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable
with respect to any action taken or omitted to
be taken by it in good faith in accordance with
the direction of the Holders of a majority in
principal amount of the Outstanding Securities
of any one or more series, as provided herein,
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee, or exercising any
trust or power conferred upon the Trustee,
under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk its
own funds or otherwise incur any financial
liability in the performance of any of its
duties hereunder, or in the exercise of any of
its rights or powers, if it shall have
reasonable grounds for believing that repayment
of such funds or adequate indemnity against
such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating
to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series to
the Holders of Securities of such series in the manner
and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to
the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses
and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal
business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
and
(h) except as otherwise provided in Section
801, the Trustee shall not be charged with knowledge
of any Event of Default with respect to the
Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the Event
of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by
any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it
were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on or investment of any money
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered by
it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the reasonable compensation and the
expenses and disbursements of its agents and
counsel), except to the extent that any such
expense, disbursement or advance may be attributable
to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee and hold it harmless
from and against, any loss, liability or expense
reasonably incurred by it arising out of or in
connection with the acceptance or administration of
the trust or trusts hereunder or the performance of
its duties hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or
performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that
the negligence, wilful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in
the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be
(a) a corporation organized and doing business
under the laws of the United States, any State or
Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the
Commission by rule, regulation or order upon
application, a corporation or other Person organized
and doing business under the laws of a foreign
government, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and
subject to supervision or examination by authority of
such foreign government or a political subdivision
thereof substantially equivalent to supervision or
examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then for the purposes of this
Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condi
tion so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to resign
after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee
shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates; but, on request of the Company or any succes
sor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of
any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor of
the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the
goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon
demand;
(b) the term "self-liquidating paper" means
any draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 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
joint 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 Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series, or any Tranche thereof, shall be
made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By_____________________
_
As Authenticating
Agent
By_____________________
_
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, and
at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding _______________, with respect to any events
and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required
by the Trust Indenture Act. The Trustee shall transmit to
the Holders 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 Com
pany 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 per
formed or observed;
(b) immediately after giving effect to such
transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transactions have been complied
with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is
merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities Outstanding
hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another
Person to the Company and the assumption by any such
successor of the covenants of the Company herein and
in the Securities, all as provided in Article Eleven;
or
(b) to add one or more covenants of the Company
or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture
supplemental hereto in any material respect, such
change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for the
Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all
other matters incidental thereto; or
(h) to evidence and provide for the acceptance
of appointment hereunder by a separate or successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to
permit the Company to utilize, at its option, a non-
certificated system of registration for all, or any
series or Tranche of, the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Securities, or any
Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or
any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or
any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other provision
herein, or to make any other changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests of
the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at the
date of the execution and delivery of this Indenture or at
any time thereafter shall be amended and
(x) if any such amendment shall
require one or more changes to any provisions
hereof or the inclusion herein of any additional
provisions, or shall by operation of law be
deemed to effect such changes or incorporate
such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust
Indenture Act, and the Company and the Trustee
may, without the consent of any Holders, enter
into an indenture supplemental hereto to effect
or evidence such changes or additional
provisions; or
(y) if any such amendment shall
permit one or more changes to, or the
elimination of, any provisions hereof which, at
the date of the execution and delivery hereof or
at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended
to effect such changes or elimination, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to evidence such amendment
hereof.
SECTION 1202. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than
a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of,
this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or
more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class,
shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 312 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that
would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other
property), in which any Security or any premium or
the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any
Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the
consent of the Holder of such Security, or
(b) reduce the percentage in principal amount
of the Outstanding Securities of any series or any
Tranche thereof, the consent of the Holders of which
is required for any such supplemental indenture, or
the consent of the Holders of which is required for
any waiver of compliance with any provision of this
Indenture or of any default hereunder and its conse
quences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the
consent of the Holders of each Outstanding Security
of such series or Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche thereof,
or except to increase the percentages in principal
amount referred to in this Section or such other
Sections or to provide that other provisions of this
Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security af
fected thereby; provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b)
and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to
consent under this Section shall be deemed to be a consent
of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore
in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche
thereof, authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall
so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental
Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a Board
Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or
the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate
shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately
satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other
place. Notice of every such meeting, setting forth
the time and the place of such meeting and in general
terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to
call a meeting of the Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and
Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities
of such series and Tranches in the amount above
specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be
determined or approved by the Company, for such
meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches
thereof, shall be valid without notice if the Holders
of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities
of the series and Tranches with respect to which a meeting
shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a
meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be
taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In
the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such
series and Tranches, be dissolved. In any other case the
meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the ad
journment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by
the chairman of the meeting prior to the adjournment of
such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided
in Section 1302(a) not less than 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, con
sidered as one class; provided, however, that, except as
so limited, any resolution with respect to any action
which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one
class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches,
considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305.Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section
1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting
shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders shall
be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and 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 pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in
full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Eligible Obligations pursuant to Section 701 (provided all
conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or securities
of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium or interest, if
any, is made upon the Securities or before any Securities
can be acquired by the Company or any sinking fund payment
is made with respect to the Securities (except that
required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
<PAGE>
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:
_______________________
______________________________,
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 _____________________)
) 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 a
_________________ of ______________________________, one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
Exhibit B-12
[FORM OF DEBENTURE UNDERWRITING AGREEMENT]
SYSTEM ENERGY RESOURCES, INC.
___% Debentures due ____
UNDERWRITING AGREEMENT
_______ __, ____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies & Gentlemen:
The undersigned, System Energy Resources, Inc., an
Arkansas corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $___________ principal amount of the Company's
___% Debentures due ____ (the "Debentures"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters and each Underwriter
shall purchase from the Company at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at ______% of the
principal amount of the Debentures [plus accrued interest thereon
from _____ __, ____ to the Closing Date.
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of ________ __, ____ between the Company and _____________, as
Trustee (the "Trustee"), as supplemented by the _________________
Supplemental Indenture, dated as of ________ __, ____ (the
"Supplemental Indenture"), to said Indenture. Said Indenture, as
supplemented and as it will be further supplemented by the
Supplemental Indenture is hereinafter referred to as the
"Indenture". The Debentures, the Indenture and the Supplemental
Indenture shall have the terms and provisions described in the
Prospectus (as defined herein), provided that subsequent to the
date hereof and prior to the Closing Date the form of the
Indenture and the form of the Supplemental Indenture may be
amended by mutual agreement between the Company and the
Underwriters.
SECTION 3. Representations and Warranties of the
Company. The Company represents and warrants to the several
Underwriters that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the State of
Arkansas and has the necessary corporate power and authority to
conduct the business which it is described in the Prospectus
(hereinafter defined) as conducting and to own and operate the
properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (File No. 33-______) for the registration of
$_______________ principal amount of the Company's debentures
(including the Debentures) under the Securities Act of 1933, as
amended (the "Securities Act") (of which an aggregate of
$___________ of such debentures remain unsold), and such
registration statement has become effective. The Company
qualifies for use of Form S-3 for the registration of the
Debentures. The prospectus forming a part of the registration
statement, at the time such registration statement (or the most
recent amendment thereto filed prior to the time of effectiveness
of this Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time pursuant
to Item 12 of Form S-3, is hereinafter referred to as the "Basic
Prospectus". In the event that the Basic Prospectus shall have
been amended, revised or supplemented (but excluding any
amendments, revisions or supplements to the Basic Prospectus
relating solely to debentures other than the Debentures) prior to
the time of effectiveness of the Underwriting Agreement, and with
respect to any documents filed by the Company pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the registration
statement became effective and up to the time of effectiveness of
this Underwriting Agreement (but excluding documents incorporated
therein by reference relating solely to debentures other than the
Debentures), which documents are deemed to be incorporated by
reference in the Basic Prospectus, the term "Basic Prospectus" as
used herein shall also mean such prospectus as so amended,
revised or supplemented. The Registration Statement in the form
in which it became effective and as it may have been amended by
all amendments thereto as of the time of effectiveness of this
Underwriting Agreement (including for these purposes as an
amendment any document incorporated by reference in the Basic
Prospectus), and the Basic Prospectus as it shall be supplemented
to reflect the terms of the offering and sale of the Debentures
by a prospectus supplement (a "Prospectus Supplement") to be
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act ("Rule 424"), are
hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively.
(c) (i) After the time of effectiveness of this
Underwriting Agreement and during the time specified in Section
6(d), the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus (except any amendment
or supplement relating solely to debentures other than the
Debentures), and (ii) between the time of effectiveness of this
Underwriting Agreement and the Closing Date, the Company will not
file any document which is to be incorporated by reference in, or
any supplement to the Basic Prospectus, in either case, without
prior notice to this Underwriters and to Winthrop, Stimson,
Putnam & Roberts ("Counsel for the Underwriters"), or any such
amendment or supplement to which said Counsel shall reasonably
object on legal grounds in writing. For purposes of this
Underwriting Agreement, any document which is filed with the
Commission after the time of effectiveness of this Underwriting
Agreement and is incorporated by reference in the Prospectus
(except documents incorporated by reference relating solely to
debentures other than the Debentures) pursuant to Item 12 of Form
S-3 shall be deemed a supplement to the Prospectus.
(d) The Registration Statement, in the form in which
it became effective, and the Indenture, at such time, fully
complied, and the Prospectus, when filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 and at the Closing
Date, as it may then be amended or supplemented, will fully
comply in all material respects with the applicable provisions of
the Securities Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder or pursuant to said rules and regulations
did or will be deemed to comply therewith. The documents
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3, on the date first filed with the Commission pursuant
to the Exchange Act, fully complied or will fully comply in all
material respects with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder or
pursuant to said rules and regulations are or will be deemed to
comply therewith. On the later of (i) the date the Registration
Statement was declared effective by the Commission under the
Securities Act or (ii) the date that the Company's most recent
Annual Report on Form 10-K was filed with the Commission under
the Exchange Act (the date described in either clause (i) or (ii)
is hereinafter referred to as the "Effective Date"), the
Registration Statement did not, and on the date that any post-
effective amendment to the Registration Statement became or
becomes effective (but excluding any post-effective amendment
relating solely to debentures other than the Debentures), the
Registration Statement as amended by any such post-effective
amendment did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 and at the Closing Date (as defined herein), the
Prospectus, as it may then be amended or supplemented, will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and on said dates and at such times, the documents
then incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3, when read together with the Prospectus, or the
Prospectus, as it may then be amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (c) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement or
the Prospectus, as they may be amended or supplemented, or to any
statements in or omissions from the statement of eligibility, as
either may be amended, under the Trust Indenture Act, of the
Trustee under the Indenture.
(e) The issuance and sale of the Debentures and the
fulfillment of the terms of this Underwriting Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is
now a party.
(f) Except as set forth or contemplated in the
Prospectus, the Company has obtained all material licenses,
permits, and other governmental or regulatory authorizations
currently required for the conduct of its business, and is in all
material respects complying therewith, and the Company is not
aware of any fact that would lead it to believe that any material
license, permit or other governmental or regulatory authorization
would not remain in effect or be renewed in its ordinary course
of business.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Debentures as soon after the
effectiveness of the Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Debentures will be offered to the public at the initial
public offering price specified in the Prospectus Supplement
[plus accrued interest thereon from ________ __, ____ to the
Closing Date].
SECTION 5. Time and Place of Closing. Delivery of the
Debentures and payment of the purchase price therefor by wire
transfer of, or check or checks payable in, New York Clearing
House Funds or similar next day funds shall be made at the
offices of Reid & Priest LLP, 40 West 57th Street, New York, New
York, at 10:00 A.M., New York time, on ________ __, ____, or at
such other time on the same or such other day as shall be agreed
upon by the Company and [Lead Underwriter], or as may be
established in accordance with Section 11 herein. The hour and
date of such delivery and payment are herein called the "Closing
Date".
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of the Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures available to the Underwriters for checking
not later than 2:30 P.M., New York Time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among you and the Company, or at such other time and/or date as
may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the Registration Statement
relating to the Debentures as originally filed with the
Commission, and of all amendments or supplements thereto relating
to the Debentures, certified by an officer of the Company to be
in the form filed.
(b) The Company will deliver to you as many copies of
the Prospectus (and any amendments or supplements thereto) as the
Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are required
by law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the Debentures, the Company will amend or
supplement the Prospectus by either (i) preparing and filing with
the Commission and furnishing to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus, or (ii) making an appropriate
filing pursuant to Section 13, 14 or 15(d) of the Exchange Act
which will supplement or amend the Prospectus, so that, as
supplemented or amended, it will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. Unless such event
relates solely to the activities of the Underwriters (in which
case the Underwriters shall assume the expense of preparing any
such amendment or supplement), the expenses of complying with
this Section 6(d) shall be borne by the Company until the
expiration of nine months from the initial effective date of the
Registration Statement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning statement
(which need not be audited) covering a period of at least twelve
months beginning after the "effective date of the registration
statement" within the meaning of Rule 158 under the Securities
Act, which earning statement shall be in such form, and be made
generally available to security holders in such a manner so as to
meet the requirements of the last paragraph of Section 11(a) of
the Securities Act and Rule 158 promulgated under the Securities
Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debentures for offer and sale under the "blue sky" laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be unduly
burdensome.
(g) The Company will, except as herein provided, pay
all expenses and taxes (except transfer taxes) in connection with
(i) the preparation and filing of the Registration Statement,
(ii) the printing, issuance and delivery of the Debentures and
the preparation, execution, printing and recordation of the
Indenture or the Supplemental Indenture, (iii) legal fees and
expenses relating to the qualification of the Debentures under
the "blue sky" laws of various jurisdictions and the
determination of the eligibility of the Debentures for investment
under the laws of various jurisdictions, in an amount not to
exceed $_______, (iv) the printing and delivery to you of
reasonable quantities of copies of the Registration Statement,
the Preliminary (or any Supplemental) Blue Sky Survey and the
Prospectus and any amendment or supplement thereto, except as
otherwise provided in paragraph (d) of this Section 6, (v) fees
of the rating agencies in connection with the rating of the
Debentures, and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided above,
the Company shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement shall
be terminated in accordance with the provisions of Section 7, 8
or 12 hereof, the Company will reimburse the Underwriters for
(i) the reasonable fees and expenses of Counsel for the
Underwriters, whose fees and expenses the Underwriters agree to
pay in any other event, and (ii) reasonable out-of-pocket
expenses, in an amount not exceeding in the aggregate $15,000,
incurred in contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated
profits.
(h) The Company will not sell any additional
debentures without the consent of the Underwriters until the
earlier to occur of (i) the Closing Date or (ii) the date of the
termination of the fixed price offering restrictions applicable
to the Underwriters. The Underwriters agree to notify the
Company of such termination if it occurs prior to the Closing
Date.
SECTION 7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Debentures shall be subject to the accuracy on the date hereof and
on the Closing Date of the representations and warranties made herein
on the part of the Company and of any certificates furnished by the
Company on the Closing Date and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date as may be agreed upon by the Company and the
Underwriters.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date; no proceedings for such purpose shall be pending
before, or, to the knowledge of the Company or the Underwriters,
threatened by, the Commission on the Closing Date; and the
Underwriters shall have received a certificate, dated the Closing
Date and signed by the President, a Vice President or the
Treasurer of the Company, to the effect that no such stop order
has been or is in effect and that no proceedings for such purpose
are pending before, or to the knowledge of the Company threatened
by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Debentures, an
order of the Commission under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"), authorizing the
issuance and sale of the Debentures and the execution of the
Indenture and the Supplemental Indenture on the terms set forth
in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Wise Carter Child & Caraway, Professional
Association, Reid & Priest LLP and Friday, Eldredge & Clark,
opinions, dated the Closing Date, substantially in the forms set
forth in Exhibits A, B and C hereto, respectively, (i) with such
changes therein as may be agreed upon by the Company and you with
the approval of Counsel for the Underwriters, and (ii) if the
Prospectus shall be supplemented after being furnished to you for
use in offering the Debentures, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Winthrop, Stimson, Putnam & Roberts, Counsel for
the Underwriter, an opinion, dated the Closing Date,
substantially in the form set forth in Exhibit D hereto, with
such changes therein as may be necessary to reflect any
supplementation of the Prospectus prior to the Closing Date.
(f) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Coopers & Lybrand L.L.P. (the "Accountants"), a letter dated the
date hereof and addressed to you to the effect that (i) they are
independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the financial statements and financial statement
schedules examined by them and included or incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder; (iii) on the basis of
performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements, if
any, included or incorporated by reference in the Prospectus, a
reading of the latest available interim unaudited financial
statements of the Company, the minutes of the meetings of the
Board of Directors of the Company, the Executive Committee
thereof, if any, and the stockholder of the Company, since
December 31, 199_ to a specified date not more than five days
prior to the date of such letter, and inquiries of officers of
the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not
constitute an examination made in accordance with generally
accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such
letter, and accordingly that the Accountants make no
representations as to the sufficiency of such procedures for the
purposes of the Underwriters), nothing has come to their
attention which caused them to believe that, to the extent
applicable, (A) the unaudited financial statements of the Company
(if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder; (B) any material modifications should be made to said
unaudited financial statements for them to be in conformity with
generally accepted accounting principles and (C) at a specified
date not more than five days prior to the date of the letter,
there was any change in the capital stock or long-term debt of
the Company, or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, for declarations of dividends, for
the repayment or redemption of long-term debt, for the
amortization of premium or discount on long-term debt, or for
changes or decreases as set forth in such letter, identifying the
same and specifying the amount thereof; and (iv) stating that
they have compared specific dollar amounts, percentages of
revenues and earnings and other financial information pertaining
to the Company set forth in the Prospectus and specified in
Exhibit E hereto to the extent that such amounts, numbers,
percentages and information may be derived from the general
accounting records of the Company, and excluding any questions
requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries
and other appropriate procedures (which procedures do not
constitute an examination in accordance with generally accepted
auditing standards) set forth in the letter, and found them to be
in agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President or the Treasurer of the Company to
the effect that (A) the representations and warranties of the
Company contained herein are true and correct, (B) the Company
has performed and complied with all agreements and conditions in
this Underwriting Agreement to be performed or complied with by
the Company at or prior to the Closing Date, and (C) since the
most recent date as of which information is given in the
Prospectus, as it may be amended or supplemented, there has not
been any material adverse change in the business, property or
financial condition of the Company and there has not been any
material transaction entered into by the Company, other than
transactions in the ordinary course of business, in each case
other than as referred to in, or contemplated by, the Prospectus,
as it may be amended or supplemented.
(h) The Underwriters shall have received duly executed
counterparts of the Indenture and the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, or Entergy Corporation and its various
direct and indirect subsidiaries taken as a whole as it affects
the Company, which in the reasonable opinion of the Underwriters
materially impairs the investment quality of the Debentures.
(k) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of the Company's
outstanding debentures in any respect.
(l) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriter.
(n) The Company will furnish the Underwriters with
such additional conformed copies of such opinions, certificates,
letters and documents as may be reasonably requested.
If any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Underwriters upon notice thereof to the
Company. Any such termination shall be without liability of any
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
[(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 5:30 P.M., New York time, on the second business day
following the date of this Underwriting Agreement, or such other
time and date determined by the Company and approved by the
Underwriters.]
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at or prior to the
Closing Date, and no proceedings for that purpose shall be
pending before, or threatened by, the Commission on the Closing
Date.
(c) At the Closing Date there shall be in full force
and effect an order of the Commission under the 1935 Act
authorizing the issuance and sale of the Debentures on the terms
set forth in or contemplated by this Underwriting Agreement, the
Indenture, the Supplemental Indenture and the Prospectus.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to [Lead
Underwriter] [, provided that, in the case of paragraph (a)
above, the Company shall have used its best efforts to comply
with the requirements of Rule 424(b)]. Any such termination
shall be without liability of any party to the other party,
except as otherwise provided in paragraph (g) of Section 6 and in
Section 9.
SECTION 9. Indemnification.
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which each Underwriter or any or all of them may become subject
under the Securities Act or any other statute or common law and
shall reimburse each Underwriter and any such controlling person
for any legal or other expenses (including to the extent
hereinafter provided, reasonable counsel fees) incurred by them
in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, or upon
an untrue statement or alleged untrue statement of a material
fact contained in the Basic Prospectus (if used prior to the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424), or in the Prospectus, as
amended or supplemented, or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any
such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information
furnished herein or in writing to the Company by such Underwriter
specifically for use in connection with the preparation of the
Registration Statement, the Basic Prospectus (if used prior to
the date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424) or the Prospectus or any
amendment or supplement to any thereof or arising out of, or
based upon, statements in or omissions from that part of the
Registration Statement which constitutes the statement of
eligibility under the Trust Indenture Act of the Trustee; and
provided further, that the indemnity agreement contained in this
subsection shall not inure to the benefit of any Underwriter or
to the benefit of any person controlling any Underwriter on
account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Debentures to
any person in respect of any Basic Prospectus or the Prospectus,
as supplemented or amended, furnished by any Underwriter to a
person to whom any of the Debentures were sold (excluding in both
cases, however, any document then incorporated or deemed
incorporated by reference therein), insofar as such indemnity
relates to any untrue or misleading statement or omission made in
the Basic Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or any
amendment or supplement thereto furnished pursuant to Section
6(d) hereof, respectively, unless a copy of the Prospectus (in
the case of such a statement or omission made in the Basic
Prospectus) or such amendment or supplement (in the case of such
a statement or omission made in the Prospectus) (excluding,
however, any amendment or supplement to the Basic Prospectus
relating to any debentures other than the Debentures and any
document then incorporated or deemed incorporated by reference in
the Prospectus or such amendment or supplement) is furnished by
such Underwriter to such person (i) with or prior to the written
confirmation of the sale involved or (ii) as soon as available
after such written confirmation.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its directors and officers and each person
who controls the foregoing within the meaning of Section 15 of
the Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any action, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as amended or supplemented, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading, or upon an untrue statement or
alleged untrue statement of a material fact contained in the
Basic Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission pursuant
to Rule 424(b)) or in the Prospectus, as amended or supplemented,
or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by such Underwriter specifically for use in connection
with the preparation of the Registration Statement, the Basic
Prospectus (if used prior to the date the Prospectus is filed
with the Commission pursuant to Rule 424) or the Prospectus, or
any amendment or supplement thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. An indemnifying party shall not, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened litigation, proceeding or claim in
respect of which indemnity has been properly sought by any
indemnified party or by any person controlling any indemnified
party hereunder, unless such settlement includes an unconditional
release of such indemnified party or such person controlling any
indemnified party from all liability with respect to claims which
are the subject matter of such litigation, proceeding or claim.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity has
or could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Debentures or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of the Underwriters
and such parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 9(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Debentures
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9(d) are several in
proportion to their respective underwriting obligations and not
joint.
SECTION 10. Survival of Certain Representations and
Obligations. Any other provision of this Underwriting Agreement
to the contrary notwithstanding, (a) the indemnity and
contribution agreements contained in Section 9, and the
representations and warranties and other agreements of the
Company, contained in this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Debentures and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If either
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Debentures which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Debentures which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Debentures, the
other Underwriter shall be obligated to purchase the Debentures
which such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Debentures which any Underwriter has agreed to purchase pursuant
to Schedule I hereof be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such principal amount of
Debentures without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Debentures and the
aggregate principal amount of Debentures with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Debentures, the Company shall have the
right (a) to require the non-defaulting Underwriter to purchase
and pay for the respective principal amount of Debentures that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Debentures that the defaulting Underwriter
shall have so failed to purchase up to a principal amount thereof
equal to one-ninth of the respective principal amount of
Debentures that such non-defaulting Underwriter had otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, members of the NASD (or, if not members of the NASD, who
are foreign banks, dealers or institutions not registered under
the Exchange Act and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Debentures that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriter shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter to purchase and pay for its
respective principal amount of Debentures, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriter, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement
may be terminated at any time prior to the Closing Date by
written notice from you if, prior to that time, (i) trading in
securities on the New York Stock Exchange shall have been
generally suspended, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock
Exchange by the New York Stock Exchange, the Commission or other
governmental authority, (iii) a general banking moratorium shall
have been declared by Federal or New York State authorities, or
(iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as
to make it, in the reasonable judgment of [Lead Underwriter],
impracticable to market the Debentures. Any termination hereof,
pursuant to this Section 12, shall be without liability of either
party to the other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement may be executed in any
number of separate counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of
which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Underwriter] at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel) or, if to the Company, shall be mailed or
delivered to it at 1340 Echelon Parkway, Jackson, Mississippi
39213, Attention: Secretary.
Very truly yours,
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
Name:
Title:
<PAGE>
SCHEDULE I
System Energy Resources, Inc.
___% Debentures due ____
Name Amount
_____________
Total $____________
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
________ __, _____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We, together with Reid & Priest, of New York, New York,
have acted as counsel for System Energy Resources, Inc. (the
"Company") in connection with the issuance and sale by it
pursuant to the Underwriting Agreement, effective ________ __,
____ (the "Underwriting Agreement"), between the Company and you,
of $________ in aggregate principal amount of its % Debentures
due ____ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement; and (f) the proceedings before the
Commission under the 1935 Act relating to the issuance and sale
of the Debentures by the Company and the execution and delivery
by the Company of the Indenture and the Underwriting Agreement.
We have also examined or caused to be examined such other
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. We
have not examined the Debentures, except a specimen thereof, and
we have relied upon a certificate of the Trustee as to the
authentication and delivery thereof. Capitalized terms used
herein and not otherwise defined have the meanings ascribed to
such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action on the part of the Company, has
been duly and validly executed and delivered by the Company, is a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting the enforcement of
mortgagees' and other creditors' rights and general equitable
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and has been
duly qualified under the Trust Indenture Act and no proceedings
to suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debentures" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate any provision of the Company's Amended and Restated
Articles of Incorporation or By-laws, as amended, (b) will not
violate or conflict with any provision of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance on or security interest in any of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other undertaking
known to us (having made due inquiry with respect thereto) to
which the Company is a party or which purports to be binding upon
the Company or upon any of its respective assets, and (c) will
not violate any provision of any law or regulation applicable to
the Company or, to the best of our knowledge (having made due
inquiry with respect thereto), any provision of any order, writ,
judgment or decree of any governmental instrumentality applicable
to the Company (except that various consents of, and filings
with, governmental authorities may be required to be made in
connection or compliance with the provisions of the securities or
blue-sky laws of any jurisdiction).
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which we do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and on the date
hereof is effective under the Securities Act, and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of the
Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures and the execution, delivery and performance by
the Company of the Indenture and the Underwriting Agreement; to
the best of our knowledge, said order is in full force and
effect; no further approval, authorization, consent or other
order of any governmental body (other than in connection or
compliance with the provisions of the securities or blue-sky laws
of any jurisdiction) is legally required to permit the issuance
and sale by the Company of the Debentures pursuant to the
Underwriting Agreement; and no further approval, authorization,
consent or other order of any governmental body is legally
required to permit the performance by the Company of its
obligations with respect to the Debentures or under the Indenture
and the Underwriting Agreement.
(9) All recordings, registrations and filings of the
Indenture and all financing statements and other instruments
necessary to perfect and preserve the rights created thereunder
as against third parties or required for the validity thereof
have been made.
(10) No legal or governmental proceedings to which the
Company is a party, or of which its property is the subject, that
are of a character required to be disclosed in the Registration
Statement and the Prospectus and which are not disclosed and
properly described therein as required are pending or, to our
knowledge, threatened; and we do not know of any contracts or
other documents of the Company of a character required to be
filed as exhibits to the Registration Statement which are not so
filed, or any contracts or other documents of the Company of a
character required to be disclosed in the Registration Statement
which are not disclosed and properly described therein as
required; the descriptions in the Registration Statement and
Prospectus of statutes, legal and government proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown. Except as disclosed in the
Prospectus, there is no action, suit, proceeding or investigation
pending against or affecting the Company or any of its assets the
result of which would, in our opinion, have a materially adverse
effect on the issuance and sale of the Debentures in accordance
with the Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 3 above. In connection with
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus or as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus Supplement
under the caption ["Description of the Debentures -- Book-Entry
Debentures."]
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the Mississippi Bar
and do not hold ourselves out as experts on the laws of any other
state. We have examined the opinions of even date herewith
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and we concur in the conclusions expressed
therein insofar as they involve questions of Mississippi law. As
to all matters of Arkansas and New York law, we have relied, in
the case of Arkansas law, upon the opinion of even date herewith
addressed to us of Friday, Eldredge & Clark of Little Rock,
Arkansas, and, in the case of New York law, upon the opinion of
even date herewith addressed to you of Reid & Priest LLP.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Reid
& Priest LLP and Winthrop, Stimson, Putnam & Roberts may rely on
this opinion as to all matters of Mississippi law in rendering
their opinions required to be delivered under the Underwriting
Agreement.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
By:
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
___________ __, ____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted as
counsel for System Energy Resources, Inc. (the "Company") in
connection with the issuance and sale by it pursuant to the
Underwriting Agreement, effective ________ __, ____ (the
"Underwriting Agreement"), between the Company and you, of
$________ in aggregate principal amount of its % Debentures due
____ (the "Debentures"), issued pursuant to a Trust Indenture
dated as of _________ __, ____ between the Company and _________,
as Trustee (the "Trustee") as heretofore amended and supplemented
by all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"). This opinion is
rendered to you at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles
of Incorporation and By-Laws, each as amended; (b) the
Underwriting Agreement; (c) the Indenture; (d) the Registration
Statement and Prospectus filed under the Securities Act; (e) the
records of various corporate proceedings relating to the
authorization, issuance and sale of the Debentures by the
Company, the execution and delivery by the Company of the
Indenture and the Underwriting Agreement; and (f) the proceedings
before the Commission under the 1935 Act relating to the issuance
and sale of the Debentures by the Company, the execution and
delivery by the Company of the Indenture and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Debentures, except a specimen
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights,
and has been duly qualified under the Trust Indenture Act, and no
proceedings to suspend such qualification have been instituted
or, to our knowledge, threatened by the Commission.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debentures" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(3) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting the enforcement of mortgagees' and
other creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and are entitled to the benefits
provided by the Indenture.
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas, has due corporate power and authority to conduct the
business which it is described as conducting in the Prospectus
and to own and operate the properties owned and operated by it in
such business and is duly qualified to conduct such business in
the States of Arkansas and Mississippi.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended and (b) will not violate any provision of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance on or security
interest in any of the assets of the Company pursuant to the
provisions of, any mortgage, indenture, contract, agreement or
other undertaking known to us (having made due inquiry with
respect thereto) to which the Company is a part or which purports
to be binding upon the Company or upon any of its respective
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of our
knowledge (having made due inquiry with respect thereto), any
provision of any order, writ, judgment or decree of any
governmental instrumentality applicable to the Company (except
that various consents of, and filings with, governmental
authorities may be required to be made in connection or
compliance with the provisions of the securities or blue-sky laws
of any jurisdiction).
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act complied
as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which we do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become and is on the
date hereof effective under the Securities Act and, to the best
of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8(d) of said
Securities Act.
(8) An appropriate order has been entered by the
Commission under the 1935 Act authorizing the issuance and sale
of the Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement; to the
best of our knowledge, said order is in full force and effect; no
further approval, authorization, consent or other order of any
governmental body (other than in connection or compliance with
the provisions of the securities or blue-sky laws of any
jurisdiction) is legally required to permit the issuance and sale
by the Company of the Debentures pursuant to the Underwriting
Agreement; and no further approval, authorization, consent or
other order of any governmental body is legally required to
permit the performance by the Company of its obligations with
respect to the Debentures or under the Indenture and the
Underwriting Agreement.
In passing upon the forms of the Registration Statement
and the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and
information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph 2 above. In connection with
the Registration Statement and the Prospectus, we have had
discussions with certain of the Company's officers and
representatives, with other counsel for the Company, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Registration Statement. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the
Securities Act and at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the Registration
Statement or the Prospectus or as to the statements contained in
the Form T-1 filed as an exhibit to the Registration Statement or
as to the information contained in the Prospectus Supplement
under the caption ["Description of Debentures -- Book-Entry
Debentures."]
We have examined the portions of the information
contained in the Registration Statement which are stated therein
to have been made on our authority, and we believe such
information to be correct. We are members of the New York Bar
and do not hold ourselves out as experts on the laws of any other
state. Accordingly, as to matters involving the laws of Arkansas
and Mississippi, we have relied upon the below-named opinions of
counsel to the extent that such opinions state an opinion with
regard to the matters covered by this opinion. As to matters of
Arkansas law relating to the Company, we have, with your consent,
relied upon an opinion of even date herewith addressed to us of
Messrs. Friday, Eldredge & Clark of Little Rock, Arkansas. As to
matters of Mississippi law related to the Company, we have, with
your consent, relied upon the opinion of even date herewith of
Wise Carter Child & Caraway, Professional Association, which has
been delivered to you pursuant to the Underwriting Agreement.
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent, except that Wise
Carter Child & Caraway, Professional Association, may rely on
this opinion as to matters of New York law in rendering their
opinion related to the Company required to be delivered under the
Underwriting Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT C
[Letterhead of Friday, Eldredge & Clark]
____________ __, ____
REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
WISE CARTER CHILD & CARAWAY,
Professional Association
Heritage Building
P.O. Box 651
Jackson, Mississippi 39205
Ladies and Gentlemen:
We have acted as Arkansas counsel for System Energy
Resources, Inc. (the "Company") in connection with the issuance
and sale by it, pursuant to the Underwriting Agreement, effective
_______ __, ____ (the "Underwriting Agreement") between the
Company and the underwriter named therein of $__________ in
aggregate principal amount of its % Debentures due ____ (the
"Debentures"), issued pursuant to a Trust Indenture dated as of
_________ __, ____ between the Company and _________, as Trustee
(the "Trustee") as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the _______ Supplemental Indenture, dated as of ______ __, ____
(the Indenture as so amended and supplemented being hereinafter
referred to as the "Indenture"). This opinion is rendered to you
at the request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of or have examined and are
familiar with: (a) the Company's Amended and Restated Articles of
Incorporation and By-Laws, each as amended; (b) the Underwriting
Agreement; (c) the Indenture; (d) the Registration Statement and
Prospectus filed under the Securities Act; and (e) the records of
various corporate proceedings relating to the authorization,
issuance and sale of the Debentures and the execution and
delivery by the Company of the Indenture and the Underwriting
Agreement. We have also examined or caused to be examined such
other documents and have satisfied ourselves as to such other
matters as we have deemed necessary in order to render this
opinion. We have not examined the Debentures, except a specimen
thereof, and we have relied upon a certificate of the Trustee as
to the authentication and delivery thereof. Capitalized terms
used herein and not otherwise defined have the meanings ascribed
to such terms in the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas and is duly qualified to conduct its business in such
State.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered and is a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(3) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting enforcement of mortgagees' and other
creditors' rights, and are entitled to the benefits provided by
the Indenture.
(5) All recordings, registrations and filings of the
Indenture and all financing statements and other instruments
necessary to perfect and preserve the rights created thereunder
as against third parties or required for the validity thereof
have been made.
(6) The issuance and sale by the Company of the
Debentures, the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement and the
consummation of the transactions contemplated thereby (a) will
not violate or conflict with any provision of the Company's
Amended and Restated Articles of Incorporation or By-laws, each
as amended, and (b) will not violate or conflict with any
provision of any law or regulation of the State of Arkansas or
any subdivision thereof applicable to the Company or, to the best
of our knowledge (having made due inquiry with respect thereto),
any provision of any order, writ, judgment or decree of any
governmental instrumentality of the State of Arkansas or any
subdivision thereof applicable to the Company.
(7) No approval, authorization, order, license,
permit, franchise or consent of or registration, declaration or
filing with any Arkansas governmental authority is required in
connection with the issuance and sale of the Debentures or the
execution, delivery and performance by the Company of the
Indenture and the Underwriting Agreement.
Since we have acted herein only as Arkansas counsel for
the Company, the opinions set forth herein relate only to matters
governed by the laws of the State of Arkansas. You may rely upon
this opinion in rendering your respective opinions required to be
delivered under the Underwriting Agreement, and the underwriters
to whom your respective opinions are addressed may rely upon this
opinion in connection with the Underwriting Agreement and the
transactions contemplated thereunder as though it were addressed
and delivered to such underwriters. This opinion may not be
relied upon in any other manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_________ __, ____
[UNDERWRITERS]
[c/o LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $_________ in aggregate principal amount of the
% Debentures due ____ (the "Debentures"), issued by System Energy
Resources, Inc. (the "Company") under a Trust Indenture dated as
of _________ __, ____ between the Company and _________, as
Trustee (the "Trustee") as heretofore amended and supplemented by
all indentures amendatory thereof and supplemental thereto,
including the _______ Supplemental Indenture, dated as of ______
__, ____ (the Indenture as so amended and supplemented being
hereinafter referred to as the "Indenture"), pursuant to the
agreement between you and the Company effective ________ __, ____
(the "Underwriting Agreement").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon opinions of even date herewith addressed to
you (or upon which it is stated that you may rely) of Friday,
Eldredge & Clark and Wise Carter Child & Caraway, Professional
Association, as to all matters of Arkansas and Mississippi law,
respectively, related to this opinion. We have reviewed said
opinions and believe that they are satisfactory. We have also
reviewed the opinion of Reid & Priest LLP required by Section
7(d) of the Underwriting Agreement, and we believe said opinion
to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to enable us to render this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company and
statements in the Registration Statement hereinafter mentioned.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of the documents
submitted to us as certified or photostatic copies, and the
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the
Debentures except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the due authentication and
delivery of the Debentures. Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in
the Underwriting Agreement.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Arkansas.
(2) The Indenture has been duly and validly authorized
by all necessary corporate action, has been duly and validly
executed and delivered, is a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and is duly
qualified under the Trust Indenture Act, and no proceedings to
suspend such qualification have been instituted or, to our
knowledge, threatened by the Commission.
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions ["Description of the
Debentures" and "Description of the Offered Debentures,"
respectively,] insofar as they purport to constitute summaries of
the documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
(4) The Debentures have been duly and validly
authorized by all necessary corporate action, and are legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the parties thereto.
(6) An appropriate order has been entered by the
Commission under the 1935 Act granting the application, as
amended, with respect to the Debentures and to the best of our
knowledge such order is in full force and effect.
(7) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, at the time it became effective, and the Prospectus,
at the time it was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act,
complied as to form in all material respects with the applicable
requirements of the Securities Act and (except with respect to
the parts of the Registration Statement that constitute the
statement of eligibility of the Trustee under the Indenture, upon
which we do not pass) the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder
or pursuant to said instructions, rules and regulations are
deemed to comply therewith; and, with respect to the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act, and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, such documents or portions
thereof, on the date first filed with the Commission, complied as
to form in all material respects with the applicable provisions
of the Exchange Act, and the applicable instructions, rules and
regulations of the Commission thereunder or pursuant to said
instructions, rules and regulations are deemed to comply
therewith; the Registration Statement has become, and on the date
hereof is, effective under the Securities Act and, to the best of
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose are pending or threatened under Section 8 of the
Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness, completeness and fairness of statements made by the
Company and the information included or incorporated by reference
in the Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (3) hereof. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus, we had conferences with certain officers and
representatives of the Company and of its affiliates, with
counsel for the Company, with the independent certified public
accountants of the Company who examined the financial statements
incorporated by reference in the Registration Statement, and with
your representatives. Our examination of the Registration
Statement and the Prospectus, and our discussions in the above-
mentioned conferences, did not disclose to us any information
which gives us reason to believe that the Registration Statement,
at the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, at the time first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act and at the date hereof, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. We do not express any opinion or
belief as to the financial statements or other financial or
statistical data included or incorporated by reference in the
Registration Statement or Prospectus or as to the statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement or as to the information contained in the Prospectus
Supplement under the caption ["Description of Debentures -- Book-
Entry Debentures."]
The opinion set forth above is solely for the benefit
of the addressees hereof in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon in any manner by any other person or for any
other purpose without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
