UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
SYSTEM ENERGY RESOURCES, INC. CERTIFICATE
PURSUANT TO
File No. 70-8511 RULE 24
(Public Utility Holding Company
Act of 1935)
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transaction described below, which was proposed, among others, by
System Energy Resources, Inc. ("Company") in the Application-
Declaration on Form U-1, as amended, in the above File
("Application-Declaration"), has been carried out in accordance
with the terms and conditions of, and for the purposes
represented by the Application-Declaration and pursuant to the
Orders of the Securities and Exchange Commission dated May 9,
1955 (Release No. 35-26287) and August 18, 1995 (Release No. 35-
26358) with respect thereto.
On October 11, 1995, the Company issued and sold by
negotiated public offering to Bear, Stearns & Co. Inc. and
Salomon Brothers Inc, as underwriters, $30 million in aggregate
principal amount of the Company's 7.38% Debentures due October 1,
2000 (the "Debentures"), issued pursuant to the Indenture (for
Unsecured Debt Securities) dated as of September 1, 1995 (the
"Indenture") between the Company and Chemical Bank, as trustee
(the "Trustee"), and an Officer's Certificate dated October 11,
1995 (the "Officer's Certificate"), establishing the terms of
said series of Debentures.
Attached hereto and incorporated by reference are:
Exhibit B-10(a) - Conformed copy of Indenture between the
Company and the Trustee.
Exhibit B-10(b) - Conformed copy of Officer's Certificate
establishing terms of Debentures.
Exhibit B-12(a) - Conformed copy of Underwriting Agreement for
sale of the Debentures.
Exhibit F-1(b) - Post-effective opinion of Wise Carter Child
& Caraway, Professional Association, counsel
to System Energy.
Exhibit F-2(b) - Post-effective opinion of Reid & Priest LLP.
Exhibit C-1(a) - Copy of Prospectus used in connection with
the sale of the Debentures (previously filed
in 33-61189 and incorporated herein by
reference).
IN WITNESS WHEREOF, the Company has caused this
certificate to be executed this 20th day of October, 1995.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
Exhibit B-10(a)
_________________________________________
SYSTEM ENERGY RESOURCES, INC.
TO
CHEMICAL BANK
AS TRUSTEE
_________
Indenture
(For Unsecured Debt Securities)
Dated as of September 1, 1995
_________________________________________
<PAGE>
SYSTEM ENERGY RESOURCES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of September 1, 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
<PAGE>
THIS INDENTURE, dated as of September 1, 1995, between
SYSTEM ENERGY RESOURCES, INC., a corporation duly organized and
existing under the laws of the State of Arkansas (herein called
the "Company"), having its principal office at Echelon One, 1340
Echelon Parkway, Jackson, Mississippi 39213, and Chemical Bank,
a New York corporation, having its principal corporate trust
office at 450 West 33rd Street, New York, New York 10001, as
Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the " Securities"), in an unlimited
aggregate principal amount to be issued from time to time in one
or more series as contemplated herein; and all acts necessary to
make this Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are 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, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per
forming 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
450 West 33rd Street, New York, New York 10001.
"corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department, agency,
authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the princi
pal 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 obli
gations 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 Sec
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of
the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or (except
for purposes of actions to be taken by Holders
generally under Section 812 or 813) all Outstanding
Securities of each such series and each such Tranche,
as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have
been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon
the 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 princi
pal 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 provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company,
limited liability partnership or unincorporated organization or
any Governmental Authority.
"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 Secur
ity to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, as amended, or any successor statute, as
in effect at such time.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when
such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject
to Section 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, no
tice, 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 Secu
rities of any series, or any Tranche thereof, so modified as
to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only
the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of (i)
determining whether Holders of the requisite proportion of
the Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of the
record date or (ii) determining which Holders may revoke any
such Act (notwithstanding Section 104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document pro
vided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other
electronic communications address as the parties hereto shall
from time to time designate, or transmitted by registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Telephone: (212) 946-3341
Telecopy: (212) 946-7799 or 7800
If to the Company, to:
System Energy Resources, Inc.
Echelon One
1340 Echelon Parkway
Jackson, Mississippi 39213
Attention: Joseph L. Blount
Telephone: (601) 368-5680
Telecopy: (601) 368-5694
With a copy to:
System Energy Resources, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Attention: William J. Regan, Jr., Treasurer
Telephone: (504) 576-4308
Telecopy: (504) 576-4455
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New
York, except to the extent that the law of any other jurisdiction
shall be mandatorily applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on
such Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Prior to the authentication, issuance and delivery of Securities
of any series, there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be 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 to an
index or other fact or event ascertainable outside this
Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside this Indenture or
otherwise; the date or dates from which such interest shall
accrue; the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for
the interest payable on such Securities on any Interest
Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and Paying Agent or Agents
for such series; and if such is the case, and if acceptable
to the Trustee, that the principal of such Securities shall
be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other analogous mandatory redemption provisions or at the
option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at
which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premi
um, if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or in
terest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest on the Securities of such series, or any Tranche
thereof, are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in securities
or other property, the type and amount of such securities or
other property, or the formulary or other method or other
means by which such amount shall be determined, and the
period or periods within which, and the terms and conditions
upon which, any such election may be made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six and whether any such covenants may be waived
pursuant to Section 607;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of global
form and (iii) any and all other matters incidental to such
Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal
of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a Peri
odic 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 estab
lished in conformity with the provisions of this Inden
ture; 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 Inden
ture 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 sub
stantially in the form provided for herein executed by the
Trustee or its agent by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the 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 definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute and
the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to the
Securities of each series, a register (the register kept in
accordance with this Section being referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Securities of such series or any Tranche thereof and the
registration of transfer thereof. The Company shall designate
one Person to maintain the Security Register for the Securities
of each series, and such Person is referred to herein, with
respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate
one of its offices as the office in which the register with
respect to the Securities of one or more series shall be
maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee and
the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized denomina
tions and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, 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 govern
mental charge that may be imposed in connection with any registra
tion of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trus
tee (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 Secu
rities 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 pro
posed 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 De
faulted 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 and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and premium, if any,
and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
SECTION 312. CUSIP Numbers.
The Company in issuing Securities of any series shall
use a "CUSIP" number and the Trustee shall use the CUSIP number
in notices of redemption or exchange as a convenience to the
Holders of the Securities of such series; provided, that any such
notice may state that no such representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice
or in the Securities of such series, and that reliance may be
placed only on the other identification numbers printed on the
Securities of such series.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi
cer'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 pro
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent(s) for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment; provided, however, that no Securities shall be applied
in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so
applied shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such mandatory sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding mandatory sinking
fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
404. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any failure
referred to in the preceding paragraph (b), upon the written
request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and furnish to
the Trustee such information as it possesses regarding the
names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than September 15 in each year, commencing
September 15, 1996, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section
301 as being subject to waiver pursuant to this Section 607, if
before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by
the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a Company
Order stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the Com
pany, to the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z), if required, shall not have been
delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture,
and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this
Indenture or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall continue to
be entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company Request, the
Trustee shall acknowledge in writing that such Securities or
portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 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 deposit
ed 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 inter
est, if any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all subject,
however, to the provisions of Section 603; provided, however,
that, so long as there shall not have occurred and be continuing
an Event of Default any cash received from such principal or
interest payments on such Eligible Obligations, if not then
needed for such purpose, shall, to the extent practicable, be
invested upon Company Request and upon receipt of the documents
referred to in clause (y) of Section 701 in Eligible Obligations
of the type described in clause (b) in the first paragraph of
Section 701 maturing at such times and in such amounts as shall
be sufficient, together with any other moneys and the principal
of and interest on any other Eligible Obligations then held by
the Trustee, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid
over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default, any
moneys held in accordance with this Section on the Maturity of
all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due
on such Securities shall be paid over to the Company free and
clear of any trust, lien or pledge under this Indenture except
the lien provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be continuing, moneys
to be paid over to the Company pursuant to this Section shall be
held until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one or more of the
following events which has occurred and is continuing:
(a) failure to pay interest, if any, on any Security
of such series within 60 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series when due and payable; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series as contemplated by Section 301.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be
continuing with respect to Securities of any series at the time
Outstanding, then in every such case the Trustee or the Holders
of not less than 33% in principal amount of the Outstanding
Securities of such series may declare the principal amount (or,
if any of the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of
all of the Securities of such series to be due and payable imme
diately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon such declaration such
principal amount (or specified amount) shall become immediately
due and payable; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than
one series of Securities, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the
Securities of any one of such series.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities
of such series;
(2) the principal of and premium, if any, on
any Securities of such series which have 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 inter
est is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities;
and
(4) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in
terest, 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 compensa
tion, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article Eight
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if
any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 907;
Second: To the payment of the amounts then due and un
paid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
Third: To the payment of any surplus then remaining to
the Company, or to whomever may be lawfully entitled
thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceed
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article Eight or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part,
the Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(1) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the 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) 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 (ex
cept 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 correct
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any moneys received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee 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 here
under or the performance of its duties hereunder, including
the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article Nine.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
Nine shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after
written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent pro
vided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Nine.
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article Nine, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be ap
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 15 and September 15
in each year, commencing March 15, 1996, and at such other times
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than September 15 in each year, commencing
September 15, 1996, the Trustee shall transmit to the Holders and
the Commission a report, dated as of the next preceding July 15,
with respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall
file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act.
To the extent required by the Trust Indenture Act, the
Company shall file with the Trustee the following documents and
reports within 30 days after such documents or reports (or
consolidated documents or reports containing such documents or
reports) are filed with the Commission:
A. The Company's annual reports on Form 10-K;
B. The Company's quarterly reports on Form 10-Q;
C. The Company's current reports on Form 8-K; and
D. Any other documents filed with the Commission
which are filed with or incorporated by reference in
the foregoing reports, related to the Company, and have
not previously been filed with the Trustee.
To the extent that any of the foregoing documents or reports are
consolidated with similar documents or reports filed by an
affiliate, the Company may file such consolidated document or
report with the Trustee in lieu of the separate document or
report.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer or lease
its properties and assets substantially as an entirety to any
Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the 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 Inden
ture 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 Secu
rities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent
of the Holders of each Outstanding Security of such series
or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof (except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of such series
or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any 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 there
with, 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 representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
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 pre
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden
ture, 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 resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor cor
poration (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<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.
[SEAL] SYSTEM ENERGY RESOURCES, INC.
By:/s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and Treasurer
ATTEST:
/s/ Steven C. McNeal
Steven C. McNeal
Assistant Treasurer
<PAGE>
[SEAL] CHEMICAL BANK, Trustee
By:/s/ Josiane De Sousa
Josiane De Sousa
Assistant Vice President
ATTEST:
/s/ R. Lorenzen
R. Lorenzen
Senior Trust Officer
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
On the 6th day of October, 1995, before me personally
came William J. Regan, Jr., to me known, who, being by me duly
sworn, did depose and say that he is the Vice President and
Treasurer 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.
[SEAL] /s/ Denise Redmann Krouse
Denise Redmann Krouse
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 the 10th day of October, 1995, before me personally
came Josiane De Sousa, to me known, who, being by me duly sworn,
did depose and say that she is an Assistant Vice President of
Chemical Bank, one of the corporations described in and which
executed the foregoing instrument; that she 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 she signed her
name thereto by like authority.
[SEAL] /s/ Emily Fayan
Emily Fayan
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate Filed in New York County
Commission Expires December 31, 1995
Exhibit B-10(b)
SYSTEM ENERGY RESOURCES, INC.
OFFICER'S CERTIFICATE
Reference is made to the Indenture for Unsecured Debt
Securities dated as of September 1, 1995 (the "Indenture") from
System Energy Resources, Inc. (the "Company") to Chemical Bank,
as Trustee (the "Trustee"). Capitalized terms used herein
without being defined shall have the meanings set forth in the
Indenture.
Pursuant to (i) authority granted in certain Board
Resolutions adopted on July 10, 1995, and (ii) Section 301 of the
Indenture, the undersigned William J. Regan, Jr., Vice President
and Treasurer of the Company, does hereby certify as follows:
1. The securities of the first series to be issued under the
Indenture shall be designated "7.38% Debentures due October 1,
2000" (the "Debentures of the First Series");
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $30,000,000 at any time
Outstanding;
3. The Debentures of the First Series shall mature and the
principal shall be due and payable together with all accrued and
unpaid interest thereon on October 1, 2000;
4. The Debentures of the First Series shall bear interest from
October 1, 1995, at the rate of 7.38% per annum payable
semiannually, on October 1 and April 1 of each year (each an
"Interest Payment Date") commencing April 1, 1996. Interest on
the Debentures of the First Series will accrue from October 1,
1995 to the first Interest Payment Date, and thereafter will
accrue, from the last Interest Payment Date to which interest has
been paid or duly provided for. No interest will accrue on the
Debentures of the First Series with respect to the day on which
the Debentures of the First Series mature. In the event that any
Interest Payment Date is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of such delay) with the same force and effect
as if made on the Interest Payment Date. Interest on any overdue
principal will accrue at the same rate as the interest rate on
the Debentures of the First Series set forth above, but interest
will not accrue on overdue installments of interest on the
Debentures of the First Series;
5. Each installment of interest on a Debenture of the First
Series shall be payable to the Person in whose name such
Debenture of the First Series is registered at the close of
business on the March 15 or September 15 next preceding the
corresponding Interest Payment Date (the "Regular Record Date")
for the Debentures of the First Series. Any installment of
interest on the Debentures of the First Series not punctually
paid or duly provided for shall forthwith cease to be payable to
the Holders of such Debentures of the First Series on such
Regular Record Date, and may be paid to the Persons in whose name
the Debentures of the First Series are registered at the close of
business on a Special Record Date to be fixed by the Trustee for
the payment of such Defaulted Interest, notice whereof shall be
given to the Holders of the Debentures of the First Series not
less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the
Debentures of the First Series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on the
Debentures of the First Series shall be payable at, and
registration of transfer, exchanges, and notices and demands to
or upon the Company in respect of the Debentures of the First
Series may be effected or served at, the office or agency of the
Company in The City of New York. The Trustee will initially be
the agency of the Company for the foregoing purposes and the
Paying Agent and the Registrar for the Debentures of the First
Series;
7. The Debentures of the First Series will not be redeemable
prior to maturity;
8. The Debentures of the First Series will be originally issued
in global form payable to Cede & Co. and will, unless and until
the Debentures of the First Series are exchanged in whole or in
part for certificated Debentures of the First Series registered
in the names of various beneficial holders thereof (in accordance
with the conditions set forth in the legend appearing in the form
of the Debentures of the First Series, hereto attached as Exhibit
A), contain restrictions on transfer, substantially as described
in such form.
9. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
10. The undersigned has read all of the covenants or
conditions contained in Sections 102, 201, 301 and 303
of the Indenture relating to the authentication and
delivery of the Debentures of the First Series and the
definitions in the Indenture relating thereto;
11. The statements contained in this certificate are
based upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
12. In the opinion of the undersigned, he has made
such examination or investigation as is necessary to
express an informed opinion as to whether or not such
covenants or conditions have been complied with; and
13. In the opinion of the undersigned, such covenants
or conditions have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this 11th day of October, 1995.
/s/ William J. Regan, Jr.
Name: William J. Regan, Jr.
Title: Vice President and Treasurer
Exhibit B-12(a)
SYSTEM ENERGY RESOURCES, INC.
$30,000,000
7.38% Debentures due October 1, 2000
UNDERWRITING AGREEMENT
October 5, 1995
BEAR, STEARNS & CO. INC.
SALOMON BROTHERS INC
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
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 $30,000,000 principal amount of the Company's
7.38% Debentures due October 1, 2000 (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 99.35% of the
principal amount of the Debentures plus accrued interest thereon
from October 1, 1995 to the Closing Date (as defined herein).
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to a Trust Indenture dated as
of September 1, 1995 (the "Indenture") between the Company and
Chemical Bank, as Trustee (the "Trustee"). The Debentures and
the 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 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, and covenants and agrees with 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
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. 33-61189) for the registration of
$265,000,000 principal amount of the Company's debt securities
(including the Debentures) under the Securities Act of 1933, as
amended (the "Securities Act") (of which an aggregate of
$265,000,000 of such debt securities 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 (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 debt
securities other than the Debentures) prior to the time of
effectiveness of the Underwriting Agreement, including any
preliminary prospectus supplement, 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 debt securities 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 debt securities 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 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 debt securities
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 debt securities 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, 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 (d) 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
it 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 October 1, 1995 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 immediately available 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 October 11, 1995, or at
such other time on the same or such other day as shall be agreed
upon by the Company and Bear, Stearns & Co. Inc., 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 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 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 Bear, Stearns
& Co. Inc. 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, (iii) legal fees and expenses relating to the
qualification of the Debentures under the blue-sky laws of
various jurisdictions, in an amount not to exceed $10,000, (iv)
the printing and delivery to the Underwriters 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, (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, and (vii) the cost to the
Underwriters of providing immediately available funds on the
Closing Date as provided in Section 5 hereof. 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, the Treasurer
or an Assistant 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 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 Underwriters, 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 the Underwriters to the effect that
(i) they are independent certified public accountants with
respect to the Company within the meaning of the Securities Act
and the applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and financial
statement schedules 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, 1994 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 (x) set forth in the Prospectus, and (y) set forth
in documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act as specified in Exhibit E hereto, in
each case, 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) On or prior to the effective date of this
Underwriting Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter dated the date hereof and
addressed to the Underwriters with respect to certain financial
information contained in the Prospectus, as mutually agreed to by
the Underwriters and the Company.
(h) At the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date and signed by the
President, a Vice President, the Treasurer or an Assistant
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.
(i) The Underwriters shall have received duly executed
counterparts of the Indenture.
(j) 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.
(k) Between the date hereof and the Closing Date, no
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.
(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 debt securities in any respect.
(m) All legal matters in connection with the issuance
and sale of the Debentures 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) 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.
(b) 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 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 Bear, Stearns &
Co. Inc. 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 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 debt securities 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. 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 or such person
controlling any 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 has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 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 Bear, Stearns & Co. Inc. 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 Bear, Stearns & Co. Inc., 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 Bear,
Stearns & Co. Inc.. 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 Bear, Stearns & Co. Inc. at the address set forth
at the beginning of this Underwriting Agreement (to the attention
of its General Counsel), if to the Company, shall be mailed or
delivered to it at 1340 Echelon Parkway, Jackson, Mississippi
39213, Attention: Secretary or, if to Entergy Services, Inc.,
shall be mailed or delivered to it at 639 Loyola Avenue, New
Orleans, Louisiana 70113, Attention: Treasurer.
Very truly yours,
SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
Accepted as of the date first above written:
BEAR, STEARNS & CO. INC.
SALOMON BROTHERS INC
By: BEAR, STEARNS & CO. INC.
By:
Name:
Title:
<PAGE>
SCHEDULE I
System Energy Resources, Inc.
7.38% Debentures due October 1, 2000
Name Amount
Bear, Stearns & Co. Inc. $15,000,000
Salomon Brothers Inc $15,000,000
Total $30,000,000
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
October __, 1995
Bear, Stearns & Co. Inc.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
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 the Underwriting Agreement, effective October __,
1995 (the "Underwriting Agreement"), between the Company and you,
of $30,000,000 in aggregate principal amount of its %
Debentures due October 1, 2000 (the "Debentures"), issued
pursuant to a Trust Indenture dated as of September 1, 1995 (the
"Indenture") between the Company and Chemical Bank, as Trustee
(the "Trustee"). 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 Debt
Securities" and "Description of the 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 obtained or
made, as the case may be, 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 under the Securities
Act which has been duly obtained or 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) No recordings, registrations or filings of the
Indenture are required for the validity or enforcement thereof.
(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, 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 under the
caption "Description of Debt Securities -- Book-Entry System -
Global Debt Securities."
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]
October __, 1995
Bear, Stearns & Co. Inc.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
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 October __, 1995 (the
"Underwriting Agreement"), between the Company and you, of
$30,000,000 in aggregate principal amount of its % Debentures
due October 1, 2000 (the "Debentures"), issued pursuant to a
Trust Indenture dated as of September 1, 1995 (the "Indenture")
between the Company and Chemical Bank, as Trustee (the
"Trustee"). 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 Debt
Securities" and "Description of the 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 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 obtained or made, as the case
may be, in connection or compliance with the provisions of the
securities or blue-sky laws of any jurisdiction).
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, 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.
(7) 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 under the Securities Act which has
been duly obtained or 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, 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 under the
caption "Description of Debt Securities -- Book-Entry System -
Global Debt Securities."
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. We
have not examined into and are not passing upon matters relating
to the incorporation of the Company.
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]
October __, 1995
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
October __, 1995 (the "Underwriting Agreement") between the
Company and the underwriter named therein of $30,000,000 in
aggregate principal amount of its % Debentures due October 1,
2000 (the "Debentures"), issued pursuant to a Trust Indenture
dated as of September 1, 1995 (the "Indenture") between the
Company and Chemical Bank, as Trustee (the "Trustee"). 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) No recordings, registrations or filings of the
Indenture are required for the validity or enforcement thereof.
(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 except that
Winthrop, Stimson, Putnam & Roberts may rely on this opinion as
to all matters of Arkansas law in rendering its opinion required
to be delivered under the Underwriting Agreement.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
October __, 1995
Bear, Stearns & Co. Inc.
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $30,000,000 in aggregate principal amount of the
% Debentures due October 1, 2000 (the "Debentures"), issued by
System Energy Resources, Inc. (the "Company") under a Trust
Indenture dated as of September 1, 1995 (the "Indenture") between
the Company and Chemical Bank, as Trustee (the "Trustee"),
pursuant to the agreement between you and the Company effective
October __, 1995 (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 thereof. We have not examined into, and are expressing
no opinion or belief as to matters relating to, incorporation of
the Company. 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 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.
(2) The statements made in the Prospectus and the
Prospectus Supplement under the captions "Description of Debt
Securities" and "Description of the 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 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).
(4) The Underwriting Agreement has been duly
authorized, executed and delivered by the parties thereto.
(5) 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.
(6) Except in each case as to the financial statements
and other financial or statistical data included or incorporated
by reference therein, upon which we do not pass, the Registration
Statement, 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 (2) 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, 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
under the caption "Description of Debt Securities -- Book-Entry
System - Global Debt Securities."
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 CONTAINED IN EXCHANGE ACT DOCUMENTS PURSUANT TO
SECTION 7(f)(iv) OF THE UNDERWRITING AGREEMENT FOR INCLUSION IN
THE LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
Caption Pages Items
FORM 10-Q FOR THE QUARTER
ENDED JUNE 30, 1995
MANAGEMENT'S FINANCIAL 46 The amount of additional first
DISCUSSION AND ANALYSIS -- mortgage bonds issuable by the
LIQUIDITY AND CAPITAL Company as of June 30, 1995
RESOURCES -- Entergy, based upon the most
AP&L, GSU, LP&L, MP&L, restrictive applicable tests
NOPSI and System Energy and assuming an annual
interest rate of 8%.
Exhibit F-1(b)
[LETTERHEAD OF WISE CARTER CHILD & CARAWAY]
October 20, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are familiar with (A) the application-declaration on Form U-
1 (File No. 70-8511), as amended ("Application-Declaration") filed
by System Energy Resources, Inc. ("Company") and the other
companies named therein with the Securities and Exchange Commission
("Commission") under the Public Utility Holding Company Act of
1935, as amended, contemplating, among other things, the issuance
and sale of one or more series of the Company's debentures, (B) the
Commission's orders dated May 9, 1995, and August 18, 1995,
granting and permitting to become effective the Application-
Declaration with respect to the foregoing matters ("Orders"), and
(C) the subsequent issuance and sale by the Company on October 11,
1995, of $30,000,000 in aggregate principal amount of its 7.38%
Debentures due October 1, 2000 ("Debentures"). In connection
therewith, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Arkansas.
(2) The issuance and sale of the Debentures have been
consummated in accordance with the Application-
Declaration and the Orders.
(3) All state laws that relate or are applicable to the
issuance and sale of the Debentures (other than so-called
"blue-sky" or similar laws, upon which we do not pass
herein) have been complied with.
(4) The Debentures are valid and binding obligations of
the Company in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights.
(5) The consummation of the issuance and sale of the
Debentures has not violated the legal rights of the
holders of any securities issued by the Company.
In giving this opinion, we have relied, as to all matters
governed by the laws of the State of New York, upon an opinion of
even date herein of Reid & Priest LLP of New York, New York, which
is to be filed as an exhibit to the Certificate pursuant to Rule
24.
We hereby consent to the use of this opinion as an exhibit to
the Certificate pursuant to Rule 24.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
BY: /s/ Betty Toon Collins
Betty Toon Collins
Exhibit F-2(b)
New York, New York
October 20, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are familiar with (A) the application-
declaration on Form U-1 (File No. 70-8511), as amended
("Application-Declaration"), filed with the Securities and
Exchange Commission ("Commission") under the Public Utility
Holding Company Act of 1935, as amended, by System Energy
Resources, Inc. ("Company") and the other companies named
therein contemplating, among other things, the issuance and
sale of one or more series of the Company's debentures, (B)
the Commission's orders, dated May 9, 1995 and August 18,
1995, granting and permitting to become effective the
Application-Declaration with respect to the foregoing
matters ("Orders"), and (C) the subsequent issuance and
sale by the Company on October 11, 1995, of $30,000,000 in
aggregate principal amount of its 7.38% Debentures due
October 1, 2000 ("Debentures"). In connection therewith,
we advise as follows:
(1) The Company is a corporation duly organized
and validly existing under the laws of the State of
Arkansas.
(2) The issuance and sale of the Debentures have
been consummated in accordance with the Application-
Declaration and the Orders.
(3) All state laws that relate or are applicable
to the issuance and sale of the Debentures (other than
so-called "blue-sky" or similar laws, upon which we do
not pass herein) have been complied with.
(4) The Debentures are valid and binding
obligations of the Company in accordance with their
terms, except as limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights.
(5) The consummation of the issuance and sale of
the Debentures has not violated the legal rights of
the holders of any securities issued by the Company or
any associate company thereof.
We are members of the New York Bar and do not
hold ourselves out as experts on the laws of any other
state. In giving this opinion, we have relied, as to all
matters governed by the laws of the State of Arkansas and
of the State of Mississippi, upon an opinion of even date
herewith of Wise Carter Child & Caraway, Professional
Association, which is to be filed as an exhibit to the
Certificate pursuant to Rule 24.
We hereby consent to the use of this opinion as
an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
