File No. 70-8719
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form U-1/Amendment No. 1
___________________________________
APPLICATION-DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
___________________________________
Mississippi Power & Light Company
308 East Pearl Street
Jackson, MS 39201
(Name of company filing this statement and address
of principal executive offices)
___________________________________
Entergy Corporation
(Name of top registered holding company parent of each
applicant or declarant)
___________________________________
Donald E. Meiners William J. Regan, Jr.
President Vice President and Treasurer
Mississippi Power & Light Company Entergy Services, Inc.
308 East Pearl Street 639 Loyola Avenue
Jackson, MS 39201 New Orleans, LA 70113
(Names and addresses of agents for service)
___________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Laurence M. Hamric, Esq. Thomas J. Igoe, Jr., Esq.
Denise C. Redmann, Esq. Kevin Stacey, Esq.
Entergy Services, Inc. Reid & Priest LLP
639 Loyola Avenue 40 West 57th Street
New Orleans, LA 70113 New York, NY 10019
<PAGE>
Item 2. Fees, Commissions and Expenses.
The fees, commissions and expenses, other than those of
the underwriters, to be incurred in connection with the
issuance and sale of Bonds and/or Debentures are not
expected to exceed the following:
Each
Initial Additional
Sale Sale
Registration Statement $183,000 $--
Application-Declaration 2,000 --
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 7,000 3,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway, 20,000 10,000
Professional Association
Reid & Priest LLP 45,000 30,000
*Fees of Entergy Services, Inc. 30,000 25,000
*Accountants' fees 18,000 12,000
*Printing and engraving costs 25,000 20,000
*Miscellaneous expenses (including
blue-sky expenses) 25,000 15,000
-------- --------
*Total Expenses $380,000 $140,000
======== ========
___________________
*Estimated
The fees, commissions and expenses, other than those of
the underwriters, to be incurred in connection with the
issuance and sale of the Preferred are not expected to
exceed the following:
Each
Initial Additional
Sale Sale
Registration Statement $26,000 $ --
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 7,000 3,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway,
Professional Association 20,000 10,000
Reid & Priest LLP 45,000 30,000
*Fees of Entergy Services, Inc. 30,000 25,000
*Accountants' fees 18,000 12,000
*Printing and engraving costs 25,000 20,000
*Miscellaneous expenses (including
blue-sky expenses) 25,000 15,000
-------- --------
*Total Expenses $223,000 $140,000
======== ========
___________________
*Estimated
The fees, commissions and expenses, other than those of
the underwriters, to be incurred in connection with the
issuance and sale of the Entity Interests are not expected
to exceed the following:
Each
Initial Additional
Sale Sale
Registration Statement $26,000 $ --
*Rating Agencies' fees 40,000 40,000
*Trustees' fees 25,000 10,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway, 35,000 25,000
Professional Association
Reid & Priest LLP 45,000 35,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accountants' fees 22,000 16,000
*Printing and engraving costs 40,000 40,000
*Miscellaneous expenses (including
blue-sky expenses) 65,000 34,000
-------- --------
*Total Expenses $330,000 $225,000
======== ========
___________________
*Estimated
The fees and expenses to be incurred in connection with
the issuance and sale of the Tax-Exempt Bonds (including the
expenses related to the issuance and pledge of the
Collateral Bonds) are estimated not to exceed the following:
Each
Initial Additional
Sale Sale
*Rating Agencies' fees $35,000 $35,000
*Trustees' fees 35,000 35,000
*Fees of Bond Counsel 60,000 40,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway, 35,000 25,000
Professional Association
Reid & Priest LLP 40,000 30,000
*Fees of Entergy Services, Inc. 30,000 20,000
*Accountants' fees 10,000 10,000
*Printing and engraving costs 20,000 20,000
*Miscellaneous expenses (including
blue-sky expenses) 25,000 25,000
-------- --------
*Total Expenses $290,000 $240,000
======== ========
___________________
*Estimated
The fees, commissions and expenses of the underwriters
expected to be incurred with respect to the Bonds,
Debentures, Entity Interests, Preferred or Tax-Exempt Bonds
will not exceed the lesser of 2% (or in the case of
Debentures issued under the Subordinated Debenture Indenture
or Entity Interests, 3.25%) of the principal amount of the
Bonds, Debentures, Entity Interests, Preferred or Tax-Exempt
Bonds, respectively, to be sold or those generally paid at
the time of pricing for sales of first mortgage bonds,
debentures, subsidiary interests, preferred or tax-exempt
bonds, respectively, having the same maturity, issued by
companies of comparable credit quality and having similar
terms, conditions and features.
Item 6. Exhibits and Financial Statements.
(a) Exhibits:
A-2 Proposed form(s) of additional Supplemental
Indenture(s) relating to the Bonds.
A-3 Proposed form(s) of additional Supplemental
Indenture(s) relating to the Collateral Bonds.
A-4 Proposed form(s) of Bond.
A-5 Proposed form(s) of Collateral Bond.
A-8 Proposed form(s) of Articles of Amendment to
Restated Articles of Incorporation, as
amended, establishing series of the Preferred.
A-10 Proposed form(s) of Preferred Certificate
relating to fixed dividend rate stock.
A-11 Proposed form(s) of Preferred Certificate
relating to adjustable dividend rate stock.
A-12 Proposed form(s) of Debenture Indenture.
A-13 Proposed form(s) of Debenture.
A-14 Proposed form(s) of Subordinated Debenture
Indenture.
A-15 Proposed form(s) of Subordinated Debenture.
A-16 Proposed form(s) of Entity Subordinated
Debenture Indenture.
A-17 Proposed form(s) of Entity Subordinated
Debenture.
B-1 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Bonds.
B-2 Proposed form(s) of agreement for sale(s) of
Bonds.
B-3 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Preferred.
B-5 Proposed form(s) of Indenture.
B-6 Proposed form(s) of Facilities Agreement.
B-8 Proposed form of letter to prospective
purchasers relating to proposals for the
purchase of Debentures.
B-9 Proposed form(s) of agreement for sale(s) of
Debentures.
F-1 Opinion(s) of Wise Carter Child & Caraway,
Professional Association.
F-2 Opinion(s) of Reid & Priest LLP.
G Plan of Financing for the Company and
Financial Data Schedules.
_________________________
* Incorporated herein by reference as indicated.
Section B. Financial Statements
Financial Statements of the Company as of September 30, 1995
(reference is made to Exhibit G hereto).
Financial Statements of Entergy Corporation and
subsidiaries, consolidated, as of September 30, 1995.
Notes to financial statements of the Company and Entergy
Corporation and subsidiaries included in the Annual Report
on Form 10-K for the fiscal year ended December 31, 1994 and
the Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1995, June 30, 1995 and September 30, 1995
(filed in File No. 0-320 incorporated by reference).
Except as reflected in the Financial Statements, no material
changes not in the ordinary course of business have taken
place since September 30, 1995.
Reference is made to Exhibit G hereto for a statement of (i)
the approximate amounts, before and after giving effect to
the proposed transactions, of unfunded bondable property of
the Company available for the issuance of Bonds and (ii) the
proposed accounting treatment of the transactions herein
contemplated.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned company has duly
caused this Application-Declaration to be signed on its behalf by
the undersigned thereunto duly authorized.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and
Treasurer
Dated: November 17, 1995
EXHIBIT A-2
MISSISSIPPI POWER & LIGHT COMPANY
to
BANK OF MONTREAL TRUST COMPANY
and
MARK F. MCLAUGHLIN,
(successor to Z. George Klodnicki)
As Trustees under Mississippi
Power & Light Company's Mortgage and
Deed of Trust, dated as of February 1, 1988
________________________________
______________ SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds
____% Series due _______________
________________
Dated as of ________________
<PAGE>
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 5
Section 1.02. Certain Defined Terms 5
Section 1.03. References Are to Supplemental
Indenture 6
Section 1.04. Number and Gender 6
ARTICLE II
THE ______________ SERIES
Section 2.01. Bonds of the ___________ Series 6
Section 2.02. Optional Redemption of Bonds of the
Series 7
Section 2.03. Transfer and Exchange 7
Section 2.04. Dating of Bonds and Interest
Payments 8
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 8
Section 3.02. Further Assurances 9
Section 3.03. Limitation on Restricted Payments 9
Section 3.04. Protection of Rate Order 9
Section 3.05. Limitation on Sale, Transfer or
Pledge of Deferred Grand Gulf I Costs 10
Section 3.06. Preconsent to Modification of
Rights under Sections 3.04 and 3.05 10
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts 10
Section 4.02. Effect of Supplemental Indenture
under Louisiana Law 10
Section 4.03. Record Date 11
Section 4.05. Counterparts 11
Section 4.06. Governing Law 11
Signatures 12
Acknowledgments 14
Exhibit A - Form of Bond of ______________ Series A-1
<PAGE>
____________ SUPPLEMENTAL INDENTURE
_________________________
___________ SUPPLEMENTAL INDENTURE, dated as of
___________, between MISSISSIPPI POWER & LIGHT COMPANY, a
corporation of the State of Mississippi, whose post office
address is P.O. Box 1640, Jackson, Mississippi 39215-1640 (tel.
601-969-2311) (the "Company") and BANK OF MONTREAL TRUST COMPANY,
a corporation of the State of New York, whose principal office is
located at 77 Water Street, New York, New York 10005 (tel. 212-
701-7650) and MARK F. MCLAUGHLIN (successor to Z. George
Klodnicki), whose post office address is 44 Norwood Avenue,
Allenhurst, New Jersey 07711 (tel. 212-701-7602), as trustees
under the Mortgage and Deed of Trust, dated as of February 1,
1988, executed and delivered by the Company (herein called the
"Original Indenture"; the Original Indenture together with any
and all indentures and instruments supplemental thereto being
herein called the "Indenture");
WHEREAS, the Original Indenture has been duly recorded
or filed as required in the States of Mississippi, Arkansas and
Wyoming; and
WHEREAS, the Company has executed and delivered to the
Trustees (such term and all other defined terms used herein and
not defined herein having the respective definitions to which
reference is made in Article I below) its First Supplemental
Indenture, dated as of February 1, 1988, its Second Supplemental
Indenture, dated as of July 1, 1988, its Third Supplemental
Indenture, dated as of May 1, 1989, its Fourth Supplemental
Indenture, dated as of May 1, 1990, its Fifth Supplemental
Indenture, dated as of November 1, 1992, its Sixth Supplemental
Indenture dated as of January 1, 1993 and its Seventh
Supplemental Indenture dated as of July 15, 1993, each as a
supplement to the Original Indenture, which Supplemental
Indentures have been duly recorded or filed as required in the
States of Mississippi, Arkansas and Wyoming; and
WHEREAS, in addition to property described in the
Original Indenture, as heretofore supplemented, the Company has
acquired certain other property rights and interests in property;
and
WHEREAS, the Company has heretofore issued, in
accordance with the provisions of the Indenture, the following
series of bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
14.65% Series due February 1, 1993 $55,000,000 None
14.95% Series due February 1, 1995 $20,000,000 None
8.40% Collateral Series due December 1, 1992 $12,600,000 None
11.11% Series due July 15, 1994 $18,000,000 None
11.14% Series due July 15, 1995 $10,000,000 None
11.18% Series due July 15, 1996 $26,000,000 $26,000,000
11.20% Series due July 15, 1997 $46,000,000 $46,000,000
9.90% Series due April 1, 1994 $30,000,000 None
5.95% Series due October 15, 1995 $15,000,000 None
6.95% Series due July 15, 1997 $50,000,000 50,000,000
8.65% Series due January 15, 2023 $125,000,000 125,000,000
7.70% Series due July 15, 2023 $60,000,000 60,000,000
6_ Series due November 1, 2003 65,000,000 65,000,000
8.25% Series due July 1, 2004 25,000,000 25,000,000
8.80% Series due April 1, 2005 80,000,000 80,000,000
<FN1>
; and
WHEREAS, Section 19.04 of the Original Indenture
provides, among other things, that any power, privilege or right
expressly or impliedly reserved to or in any way conferred upon
the Company by any provision of the Indenture, whether such
power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may
enter into any further covenants, limitations, restrictions or
provisions for the benefit of any one or more series of bonds
issued thereunder, or the Company may establish the terms and
provisions of any series of bonds by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to be
recorded in all of the states in which any property at the time
subject to the Lien of the Indenture shall be situated; and
WHEREAS, the Company desires to create ________ new
series of bonds under the Indenture and to add to its covenants
and agreements contained in the Indenture certain other covenants
and agreements to be observed by it; and
WHEREAS, all things necessary to make this ___________
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
______________________
<FN1> Here will be inserted additional outstanding series of
bonds.
<PAGE>
NOW, THEREFORE, THIS ___________ SUPPLEMENTAL INDENTURE
WITNESSETH: That the Company, in consideration of the premises
and of Ten Dollars ($10) to it duly paid by the Trustees at or
before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to further secure
the payment of both the principal of and interest on the bonds
from time to time issued under the Indenture, according to their
tenor and effect and the performance of all provisions of the
Indenture and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, hypothecates,
affects, pledges, sets over and confirms a security interest in
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN and (to
the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, as Trustees,
and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all properties
of the Company real, personal and mixed, of any kind or nature
(except as in the Indenture expressly excepted), now owned
(including, but not limited to, that located in the following
counties in the State of Mississippi: Adams, Amite, Attala,
Bolivar, Calhoun, Carroll, Choctaw, Claiborne, Coahoma, Copiah,
Covington, DeSoto, Franklin, Grenada, Hinds, Holmes, Humphreys,
Issaquena, Jefferson, Jefferson Davis, Lawrence, Leake, Leflore,
Lincoln, Madison, Montgomery, Panola, Pike, Quitman, Rankin,
Scott, Sharkey, Simpson, Smith, Sunflower, Tallahatchie, Tate,
Tunica, Walthall, Warren, Washington, Webster, Wilkinson,
Yalobusha and Yazoo; and in Independence County, Arkansas, and
Campbell County, Wyoming) or, subject to the provisions of
Section 15.03 of the Original Indenture, hereafter acquired by
the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same, the scope and intent of the
foregoing or of any general description contained in the
Indenture) all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same; all power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, dams, dam sites,
aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam,
water and/or other power; all power houses, street lighting
systems, standards and other equipment incidental thereto; all
telephone, radio and television systems, air conditioning systems
and equipment incidental thereto, water wheels, water works,
water systems, steam heat and hot water plants, substations,
electric, gas and water lines, service and supply systems,
bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the
equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and
(except as in the Indenture expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property in the Indenture
described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any in the
Indenture expressly excepted, shall be and are as fully granted
and conveyed by the Indenture and as fully embraced within the
Lien of the Indenture as if such property, rights and franchises
were now owned by the Company and were specifically described by
the Indenture and granted and conveyed by the Indenture.
PROVIDED that the following are not and are not
intended to be now or hereafter granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
hypothecated, affected, pledged, set over or confirmed hereunder,
nor is a security interest therein hereby granted or intended to
be granted, and the same are hereby expressly excepted from the
Lien and operation of the Indenture, viz: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not in the Indenture specifically pledged, paid, deposited,
delivered or held under the Indenture or covenanted so to be; (2)
merchandise, equipment, apparatus, materials or supplies held for
the purpose of sale or other disposition in the usual course of
business or for the purpose of repairing or replacing (in whole
or part) any rolling stock, buses, motor coaches, automobiles or
other vehicles or aircraft or boats, ships, or other vessels and
any fuel, oil and similar materials and supplies consumable in
the operation of any of the properties of the Company; rolling
stock, buses, motor coaches, automobiles and other vehicles and
all aircraft; boats, ships and other vessels; all timber,
minerals, mineral rights and royalties; (3) bills, notes and
other instruments and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Indenture or
covenanted so to be; (4) the last day of the term of any lease or
leasehold which may hereafter become subject to the Lien of the
Indenture; (5) electric energy, gas, water, steam, ice, and other
materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the
ordinary course of its business; (6) any natural gas wells or
natural gas leases or natural gas transportation lines or other
works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system, and any natural gas distribution
system; and (7) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly
excepted from the Lien and operation of the Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XII of the Original
Indenture by reason of the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed or in which a security interest
has been granted by the Company as aforesaid, or intended so to
be (subject, however, to Excepted Encumbrances as defined in
Section 1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN
and to the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, and their
successors and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Indenture set forth, for the equal pro rata benefit and security
of all and each of the bonds and coupons issued and to be issued
under the Indenture, or any of them, in accordance with the terms
of the Indenture, without preference, priority or distinction as
to the Lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject to the
provisions in the Indenture set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being
intended that, subject as aforesaid, the Lien and security of all
of said bonds and coupons of all series issued or to be issued
under the Indenture shall take effect from the date of the
initial issuance of bonds under the Indenture, and that the Lien
and security of the Indenture shall take effect from said date as
though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date.
PROVIDED, HOWEVER, these presents are upon the
condition that if the Company, its successors or assigns, shall
pay or cause to be paid, the principal of and interest on said
bonds, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or
to become due thereon for principal and interest, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by it, then the Indenture and the estate and rights
granted under the Indenture shall cease, determine and be void,
otherwise to be and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by the
Company that all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to
the property hereinbefore described and conveyed and to the
estate, rights, obligations and duties of the Company and the
Trustees and their successor or successors as Trustees in such
trust in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the
execution of the Original Indenture and had been specifically and
at length described in and conveyed to said Trustees by the
Original Indenture as a part of the property therein stated to be
conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in such trust as
follows:
DEFINITIONS AND RULES OF CONSTRUCTION
Terms From the Original Indenture. All defined terms
used in this __________ Supplemental Indenture and not otherwise
defined herein shall have the respective meanings ascribed to
them in the Original Indenture.
Certain Defined Terms. As used in this
Supplemental Indenture, the following defined terms shall have
the respective meanings specified unless the context clearly
requires otherwise:
The term "Original Indenture" shall have the meaning
specified in the first paragraph hereof.
The term "Person" shall mean any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
The term "Rate Order" shall mean the Final Order on
Rehearing, dated September 16, 1985, as amended by further orders
dated, respectively, September 29, 1988 and September 7, 1989,
issued by the Mississippi Public Service Commission providing
for, among other things, the recovery by the Company of Deferred
Grand Gulf I Costs.
The term "System Energy" shall mean System Energy
Resources, Inc., an Arkansas corporation, or any successor
company to which the Company shall be obligated to purchase
capacity and energy from Grand Gulf I.
The term " Series" shall have the meaning
specified in Section 2.01.
References Are to Supplemental Indenture. Unless the
context otherwise requires, all references herein to "Articles",
"Sections" and other subdivisions refer to the corresponding
Articles, Sections and other subdivisions of this ______________
Supplemental Indenture, and the words "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this
___________ Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision hereof or to the
Original Indenture or any other supplemental indenture thereto.
Number and Gender. Unless the context otherwise
requires, defined terms in the singular include the plural, and
in the plural include the singular. The use of a word of any
gender shall include all genders.
THE ______________ SERIES
Bonds of the __________ Series. There shall be a
series of bonds designated as the ____% Series due
_______________ (herein sometimes referred to as the "__________
Series"), each of which shall also bear the descriptive title
"General and Refunding Mortgage Bond" unless subsequent to the
issuance of such bonds a different descriptive title is permitted
by Section 2.01 of the Original Indenture. The form of bonds of
the __________ Series shall be substantially in the form of
Exhibit A hereto. Bonds of the _____________ Series shall mature
on ________________, and shall be issued only as fully registered
bonds in denominations of One Thousand Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof). Bonds of the ______________ Series shall bear
interest at the rate of per centum (_____%) per annum (except as
hereinafter provided), payable semi-annually on _____________ and
__________ of each year, and at maturity, commencing
_____________; the principal and interest on each said bond to be
payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts. Interest
on the bonds of the _____________ Series may at the option of the
Company be paid by check mailed to the registered owners thereof.
Overdue principal and overdue interest in respect of the bonds of
the __________ Series shall bear interest (before and after
judgment) at the rate of _______________________ per centum
(____%) per annum. Interest on the bonds of the __________
Series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest on the bonds of the
_____________ Series in respect of a portion of a month shall be
calculated based on the actual number of days elapsed.
<FN2>The Company reserves the right to establish at any
time, by Resolution of the Board of Directors of the Company, a
form of coupon bond, and of appurtenant coupons, for the
_________ Series and to provide for exchangeability of such
coupon bonds with the bonds of said Series issued hereunder in
fully registered form and to make all appropriate provisions for
such purpose.
____________________
<FN2> This paragraph may be inserted in one or more subsequent
supplemental indentures.
<PAGE>
Optional Redemption of Bonds of the Series. (a) Bonds
of the ____________ Series shall not be redeemable prior to
____________. On and after ________________, bonds of the
_____________ Series shall be redeemable, at the option of the
Company, in whole at any time, or in part from time to time,
prior to maturity, upon notice mailed to each registered owner at
his last address appearing on the registry books not less than 30
days prior to the date fixed for redemption, at the following
general redemption prices, expressed in percentages of the
principal amount of the bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 month period ending __________
[HERE WILL BE INSERTED A TABLE OF GENERAL REDEMPTION PRICES.]
in each case together with accrued interest to the date fixed for
redemption.
(a) On and after ______________, bonds of the _________
Series shall also be redeemable in whole at any time, or in part
from time to time, prior to maturity, upon like notice, by the
application (either at the option of the Company or pursuant to
the requirements of the Original Indenture) of cash delivered to
or deposited with the Trustee pursuant to the provisions of
Section 9.05 of the Original Indenture or subject to the
provisions of Section 11.05 of the Original Indenture at the
following special redemption prices, expressed in percentages of
the principal amount of the bonds to be redeemed:
SPECIAL REDEMPTION PRICES
If redeemed during 12 month period ending ____________,
[HERE WILL BE INSERTED A TABLE OF SPECIAL REDEMPTION PRICES.]
in each case together with accrued interest to the date fixed for
redemption.
Transfer and Exchange. (a) At the option of the
registered owner, any bonds of the ___________ Series, upon
surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, New
York, shall be exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
(a) Bonds of the __________ Series shall be transferable,
upon the surrender thereof for cancellation, together with a
written instrument of transfer in form approved by the registrar
duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York.
(b) Upon any such exchange or transfer of bonds of the
_____________ Series, the Company may make a charge therefor
sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 2.05 of the Original
Indenture, but the Company hereby waives any right to make a
charge in addition thereto for any such exchange or transfer of
bonds of the ___________ Series.
Dating of Bonds and Interest Payments. (a) Bonds
of the ___________ Series shall be dated and bear interest from
the date of issuance, provided that if any bond of the
____________ Series shall be authenticated and delivered upon a
transfer of, or in exchange for or in lieu of, any other bond or
bonds of the __________ Series, it shall be dated so that such
bond shall bear interest from the last preceding date to which
interest shall have been paid on the bond or bonds in respect of
which such bond shall have been delivered or from the date of
issuance if authenticated and delivered prior to July 15, 1993.
(c) Notwithstanding the foregoing, bonds of the ___________
Series shall be dated so that the Person in whose name any bond
of the __________ Series is registered at the close of business
on any record date for the __________ Series with respect to any
interest payment shall be entitled to receive the interest
payable on the interest payment date notwithstanding the
cancellation of such bond upon any transfer or exchange thereof
subsequent to the record date of the ___________ Series and prior
to such interest payment date, except if, and to the extent that,
the Company shall default in the payment of the interest due on
such interest payment date, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding bonds of
the ___________ Series are registered on the day immediately
preceding the date of payment of such defaulted interest. Any
bond of the ___________ Series issued upon any transfer or
exchange subsequent to the record date for the
Series for any interest payment date and prior to such interest
payment date shall bear interest from such interest payment date.
The term "record date for the ____________ Series", as used with
respect to any interest payment date, shall mean the 14th day of
the month, whether or not a business day, in which such interest
payment date occurs.
COVENANTS
Maintenance of Paying Agent. So long as any bonds of
the __________ Series are Outstanding, the Company covenants that
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York where the principal of or interest
on any bonds of such series shall be payable shall also be an
office or agency where any such bonds may be transferred or
exchanged and where notices, presentations or demands to or upon
the Company in respect of such bonds or in respect of the
Indenture may be given or made.
Further Assurances. From time to time whenever
reasonably requested by the Trustee or the holders of not less
than a majority in principal amount of the ____________ Series
Bonds then Outstanding, the Company will make, execute and
deliver or cause to be made, executed and delivered any and all
such further and other instruments and assurances as may be
reasonably necessary or proper to carry out the intention of or
to facilitate the performance of the terms of the Indenture or to
secure the rights and remedies of the holders of such bonds.
Limitation on Restricted Payments. (a) So long
as any bonds of the __________ Series are Outstanding, the
Company covenants that it will not declare any dividends on its
common stock (other than (1) a dividend payable solely in shares
of its common stock or (2) a dividend payable in cash in cases
where, concurrently with the payment of such dividend, an amount
in cash equal to such dividend is received by the Company as a
capital contribution or as the proceeds of the issue and sale of
shares of its common stock) or make any distribution on
outstanding shares of its common stock or purchase or otherwise
acquire for value any outstanding shares of its common stock
(otherwise than in exchange for or out of the proceeds from the
sale of other shares of its common stock) unless, after such
dividend, distribution, purchase or acquisition, the aggregate
amount of such dividends, distributions, purchases or
acquisitions paid or made subsequent to _______________ (other
than any dividend declared by the Company on or before
___________) does not exceed (without giving effect to (1) any
such dividends, distributions, purchases or acquisitions or (2)
any net transfers from earned surplus to stated capital accounts)
the sum of (A) the aggregate amount credited subsequent to
______________ to earned surplus, (B) $250,000,000 and (C) such
additional amounts as shall be authorized or approved, upon
application by the Company and after notice, by the SEC under the
Holding Company Act.
(a) For the purpose of this Section, the aggregate amount
credited subsequent to _____________ to earned surplus shall be
determined in accordance with generally accepted accounting
principles and practices (or, if in the opinion of the Company's
independent public accountants (delivered to the Trustee), there
is an absence of any such generally accepted accounting
principles and practices as to the determination in question,
then in accordance with sound accounting practices) and after
making provision for dividends upon any preferred stock of the
Company accumulated subsequent to such date, and in addition
there shall be deducted from earned surplus all amounts (without
duplication) of losses, write-offs, write-downs or amortization
of property, whether extraordinary or otherwise, recorded in and
applicable to a period or period subsequent to ______________.
Also for purposes of this Section, credits to earned surplus
shall be determined without reference to and shall not include
undistributed retained earnings of Subsidiaries.
Protection of Rate Order. So long as any bonds
are Outstanding under the Indenture that were issued under
Article IV of the Original Indenture, the Company covenants that
it will:
(b) take all reasonable actions (i) to maintain in full
force and effect the Rate Order or any other regulatory
authorization or legal or other authority pursuant to which the
Company recovers amounts paid to System Energy in respect of
capacity and energy from Grand Gulf I and records Deferred Grand
Gulf I Costs on its books as assets and (ii) to defend against
any action, suit or regulatory proceeding seeking to abrogate,
invalidate or materially adversely modify the Rate Order or such
regulatory authorization or legal or other authority; and
(c) not take any action to modify the Rate Order or such
other regulatory authorization or legal or other authority unless
it first delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that, in the opinion of the
signers, such proposed modification is not materially adverse to
the interest of the registered owners of Outstanding bonds that
were issued under Article IV of the Original Indenture.
Limitation on Sale, Transfer or Pledge of Deferred
Grand Gulf I Costs. So long as any Bonds are Outstanding under
the Indenture that were issued under Article IV of the Original
Indenture, the Company covenants that it will not sell, assign,
transfer or otherwise dispose of, or grant, incur or permit to
exist any Lien on, any of its Deferred Grand Gulf I Costs, other
than the Lien of the Indenture or as may be contemplated by the
granting clauses of the 1944 Mortgage as of the date of this
Sixth Supplemental Indenture.
Preconsent to Modification of Rights under Sections
3.04 and 3.05. The Holders of the bonds of the ________ Series
hereby consent to any modification of the Rate Order or any other
act, disposition, Lien or thing prohibited or limited by Sections
3.04 or 3.05 of this __________ Supplemental Indenture or the
failure to take any action required by such Sections or the
waiver or amendment of any provision of such Sections if the
Company obtains the consent (in any number of instruments of
similar tenor executed by registered owners of bonds or by their
attorneys appointed in writing) to such modification, act,
omission, disposition, Lien, thing, failure to act, waiver or
amendment of the registered owners of at least a majority in
aggregate principal amount of the bonds then Outstanding under
the Indenture that were issued under Article IV of the Original
Indenture.
MISCELLANEOUS PROVISIONS
Acceptance of Trusts. The Trustees hereby accept the
trusts herein declared, provided, created or supplemented and
agree to perform the same upon the terms and conditions herein
and in the Original Indenture, as heretofore supplemented, set
forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency
of this __________ Supplemental Indenture or for or in
respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each
and every term and condition contained in Article XVI of the
Original Indenture shall apply to and form part of this
____________ Supplemental Indenture with the same force and
effect as if the same were herein set forth in full with
such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of
this Sixth Supplemental Indenture.
Effect of Supplemental Indenture under Louisiana Law.
It is the intention and it is hereby agreed that, so far as
concerns that portion of the Mortgaged and Pledged Property
situated within the State of Louisiana, the general language of
conveyance contained in this _____________ Supplemental Indenture
is intended and shall be construed as words of hypothecation and
not of conveyance and that, so far as the said Louisiana property
is concerned, this Sixth Supplemental Indenture shall be
considered as an act of mortgage and pledge under the laws of the
State of Louisiana, and the Trustees herein named are named as
mortgagee and pledgee in trust for the benefit of themselves and
of all present and future holders of bonds of the __________
Series and any coupons thereto issued hereunder, and are
irrevocably appointed special agents and representatives of the
holders of the bonds and coupons issued hereunder and vested with
full power in their behalf to effect and enforce the mortgage and
pledge hereby constituted for their benefit, or otherwise to act
as herein provided for.
Record Date. The holders of the bonds of the
________ Series shall be deemed to have consented and agreed that
the Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of the bonds of the
_________ Series entitled to consent to any amendment or
supplement to the Indenture or the waiver of any provision
thereof or any act to be performed thereunder. If a record date
is fixed, those persons who were holders at such record date (or
their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such persons
continue to be holders after such record date. No such consent
shall be valid or effective for more than 90 days after such
record date.
Titles. The titles of the several Articles and
Sections of this __________ Supplemental Indenture and the table
of contents shall not be deemed to be any part hereof.
Counterparts. This _________ Supplemental Indenture
may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
Governing Law. The laws of the State of New York shall govern
this ___________ Supplemental Indenture and the bonds of the
__________ Series, except to the extent that the validity or
perfection of the Lien of the Indenture, or remedies thereunder,
are governed by the laws of a jurisdiction other than the State
of New York.
<PAGE>
IN WITNESS WHEREOF, MISSISSIPPI POWER & LIGHT COMPANY
has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board,
Chief Executive Officer, President or one of its Vice Presidents,
and its corporate seal to be attested by its Secretary or one of
its Assistant Secretaries for and in its behalf, and BANK OF
MONTREAL TRUST COMPANY has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by
one of its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant Vice
Presidents or Assistant Secretaries, and MARK F. MCLAUGHLIN has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
________________
Vice President
Attest:
__________________________
_______________
Assistant Secretary
Executed, sealed and delivered by
MISSISSIPPI POWER AND LIGHT COMPANY
in the presence of:
_________________________________
_________________________________
<PAGE>
BANK OF MONTREAL TRUST COMPANY
As Trustee
By:____________________________________
Name: ______________________________
Title: Vice President and Trust Officer
Attest:
_____________________________
Name: __________________
Title: Assistant Secretary
___________________________[L.S.]
MARK F. MCLAUGHLIN as
Co-Trustee
Executed, sealed and delivered by
BANK OF MONTREAL TRUST COMPANY
and MARK F. MCLAUGHLIN in the
presence of:
_________________________________
_________________________________
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the aforesaid Parish and State, the within
named ______________, as __________ of MISSISSIPPI POWER & LIGHT
COMPANY, who acknowledged that he signed and delivered the
foregoing instrument on the day and year therein stated, by the
authority and as the act and deed of the corporation.
On the th day of _______________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_________________________________________; that he is a
_______________ of MISSISSIPPI POWER & LIGHT COMPANY, the
corporation described in and which executed the above instrument;
that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that is was so affixed
by order of the Board of Directors of said corporation, and that
he signed his name thereto by like order.
Given under my hand and seal this __th day of
________________.
____________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named ________________, as Vice President, and _______________,
as Assistant Secretary of BANK OF MONTREAL TRUST COMPANY, who
acknowledged that they signed, attached the corporate seal of the
corporation thereto and delivered the foregoing instrument on the
day and year therein stated, by the authority and as the act and
deed of the corporation.
On the __th day of ________________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_______________________; that he is a Vice President and Trust
Officer of BANK OF MONTREAL TRUST COMPANY, the corporation
described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Given under my hand and seal this __th day of
__________________.
_________________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named MARK F. MCLAUGHLIN, who acknowledged that he signed, sealed
and delivered the foregoing instrument on the day and year
therein mentioned.
On the __th day of _____________, before me personally
came MARK F. MCLAUGHLIN, to me known to be the person described
in and who acknowledged the foregoing instrument, and
acknowledged that he executed the same.
Given under my hand and seal this __th day of
____________.
_______________________________
Notary Public
<PAGE>
EXHIBIT A
[FORM OF BOND OF _____________ SERIES]
[(see legend at the end
of this bond for restrictions on
transferability and change of form)]
GENERAL AND REFUNDING MORTGAGE BOND
____% Series due _____________
No. ______ $ ___________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and validly existing of the State of Mississippi
(hereinafter called the Company), for value received, hereby
promises to pay to ___________________ or registered assigns, at
the office or agency of the Company in New York, New York, the
principal sum of $_________ on ____________ in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, and to pay
in like manner to the registered owner hereof interest thereon
from the date hereof, if the date of this bond is prior to
____________ or, if the date of this bond is on or after
____________, from the ___________ or ____________ next preceding
the date of this bond to which interest has been paid (unless the
date hereof is an interest payment date to which interest has
been paid, in which case from the date hereof), at the rate of
________________ per centum (_____%) per annum in like coin or
currency on ___________ and ____________ in each year and at
maturity, until the principal of this bond shall have become due
and been duly paid or provided for, and to pay interest (before
and after judgment) on any overdue principal, premium, if any,
and on any defaulted interest at the rate of
___________________________ per centum (____%) per annum.
Interest on this bond shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Interest on this bond
in respect of a portion of a month shall be calculated based on
the actual number of days elapsed.
The interest so payable on any interest payment date
will, subject to certain exceptions provided in the Mortgage
hereinafter referred to, be paid to the person in whose name this
bond is registered at the close of business (whether or not a
business day) on the ____ day of the month in which such interest
payment occurs. At the option of the Company, interest may be
paid by check mailed on or prior to such interest payment date to
the address of the person entitled thereto as such address shall
appear on the register of the Company.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor thereunder, shall have signed the
authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, ____% Series due
_______________ (herein called bonds of the _____________
Series), all bonds of all series issued under and equally secured
by a Mortgage and Deed of Trust (herein, together with any
indenture supplemental thereto, called the Mortgage), dated as of
________________, duly executed by the Company to Bank of
Montreal Trust Company and Mark F. McLaughlin (successor to Z.
George Klodnicki), as Trustees. Reference is made to the
Mortgage for a description of the mortgaged and pledged property,
assets and rights, the nature and extent of the lien and
security, the respective rights, limitations of rights,
covenants, obligations, duties and immunities thereunder of the
Company, the holders of bonds and the Trustees and the terms and
conditions upon which the bonds are, and are to be, secured, the
circumstances under which additional bonds may be issued and the
definition of certain terms herein used, to all of which, by its
acceptance of this bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the __________ Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without
coupons in the denominations of $1,000 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is
transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company
under certain circumstances in the manner and at such redemption
prices as are provided in the Mortgage. This bond is also
redeemable at the option of the owner upon the events, in the
manner and at such redemption price, as is specified in the
Mortgage.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Mississippi Power & Light Company
has caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated:
MISSISSIPPI POWER & LIGHT COMPANY
By:_____________________________________
Title:
Attest:
__________________________
Title:
<PAGE>
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST COMPANY, as Trustee
By: ________________________________________
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Trustee by the
Depository Trust Company or its successor (the "Depositary"),
this bond may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
EXHIBIT A-3
MISSISSIPPI POWER & LIGHT COMPANY
to
BANK OF MONTREAL TRUST COMPANY
and
MARK F. MCLAUGHLIN,
(successor to Z. George Klodnicki)
As Trustees under Mississippi
Power & Light Company's Mortgage and
Deed of Trust, dated as of February 1, 1988
________________________________
______________ SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds,
Pollution Control Series___
________________
Dated as of ________________
<PAGE>
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 5
Section 1.02. Certain Defined Terms 5
Section 1.03. References Are to Supplemental
Indenture 6
Section 1.04. Number and Gender 6
ARTICLE II
THE ______________ SERIES
Section 2.01. Bonds of the __________ Series 6
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 8
Section 3.02. Further Assurances 8
Section 3.03. Protection of Rate Order 8
Section 3.04. Limitation on Sale, Transfer or
Pledge of Deferred Grand Gulf I Costs 9
Section 3.05. Preconsent to Modification of
Rights under Sections 3.03 and 3.04 9
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts. 9
Section 4.02. Effect of Supplemental Indenture
under Louisiana Law 9
Section 4.03. Titles 10
Section 4.04. Counterparts 10
Section 4.05. Governing Law 10
Signatures 11
Acknowledgments 13
Exhibit A - Form of Bond of ______________ Series A-1
<PAGE>
____________ SUPPLEMENTAL INDENTURE
_________________________
___________ SUPPLEMENTAL INDENTURE, dated as of
___________, between MISSISSIPPI POWER & LIGHT COMPANY, a
corporation of the State of Mississippi, whose post office
address is P.O. Box 1640, Jackson, Mississippi 39215-1640 (tel.
601-969-2311) (the "Company") and BANK OF MONTREAL TRUST COMPANY,
a corporation of the State of New York, whose principal office is
located at 77 Water Street, New York, New York 10005 (tel. 212-
701-7650) and MARK F. MCLAUGHLIN (successor to Z. George
Klodnicki), whose post office address is 44 Norwood Avenue,
Allenhurst, New Jersey 07711 (tel. 212-701-7602), as trustees
under the Mortgage and Deed of Trust, dated as of February 1,
1988, executed and delivered by the Company (herein called the
"Original Indenture"; the Original Indenture together with any
and all indentures and instruments supplemental thereto being
herein called the "Indenture");
WHEREAS, the Original Indenture has been duly recorded
or filed as required in the States of Mississippi, Arkansas and
Wyoming; and
WHEREAS, the Company has executed and delivered to the
Trustees (such term and all other defined terms used herein and
not defined herein having the respective definitions to which
reference is made in Article I below) its First Supplemental
Indenture, dated as of February 1, 1988, its Second Supplemental
Indenture, dated as of July 1, 1988, its Third Supplemental
Indenture, dated as of May 1, 1989, its Fourth Supplemental
Indenture, dated as of May 1, 1990, its Fifth Supplemental
Indenture, dated as of November 1, 1992, its Sixth Supplemental
Indenture dated as of January 1, 1993 and its Seventh
Supplemental Indenture dated as of July 15, 1993, each as a
supplement to the Original Indenture, which Supplemental
Indentures have been duly recorded or filed as required in the
States of Mississippi, Arkansas and Wyoming; and
WHEREAS, in addition to property described in the
Original Indenture, as heretofore supplemented, the Company has
acquired certain other property rights and interests in property;
and
WHEREAS, the Company has heretofore issued, in
accordance with the provisions of the Indenture, the following
series of bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
14.65% Series due February 1, 1993 $55,000,000 None
14.95% Series due February 1, 1995 20,000,000 None
8.40% Collateral Series due December 1, 1992 12,600,000 None
11.11% Series due July 15, 1994 18,000,000 None
11.14% Series due July 15, 1995 10,000,000 None
11.18% Series due July 15, 1996 26,000,000 $26,000,000
11.20% Series due July 15, 1997 46,000,000 $46,000,000
9.90% Series due April 1, 1994 30,000,000 None
5.95% Series due October 15, 1995 15,000,000 None
6.95% Series due July 15, 1997 50,000,000 50,000,000
8.65% Series due January 15, 2023 125,000,000 125,000,000
7.70% Series due July 15, 2023 60,000,000 60,000,000
6_ Series due November 1, 2003 65,000,000 65,000,000
8.25% Series due July 1, 2004 25,000,000 25,000,000
8.80% Series due April 1, 2005 80,000,000 80,000,000
<FN1>
; and
WHEREAS, Section 19.04 of the Original Indenture
provides, among other things, that any power, privilege or right
expressly or impliedly reserved to or in any way conferred upon
the Company by any provision of the Indenture, whether such
power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may
enter into any further covenants, limitations, restrictions or
provisions for the benefit of any one or more series of bonds
issued thereunder, or the Company may establish the terms and
provisions of any series of bonds by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to be
recorded in all of the states in which any property at the time
subject to the Lien of the Indenture shall be situated; and
WHEREAS, the Company desires to create ________ new
series of bonds under the Indenture and to add to its covenants
and agreements contained in the Indenture certain other covenants
and agreements to be observed by it; and
WHEREAS, all things necessary to make this ___________
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
___________________
<FN1> Here will be inserted additional outstanding series of
bonds.
<PAGE>
NOW, THEREFORE, THIS ___________ SUPPLEMENTAL INDENTURE
WITNESSETH: That the Company, in consideration of the premises
and of Ten Dollars ($10) to it duly paid by the Trustees at or
before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to further secure
the payment of both the principal of and interest on the bonds
from time to time issued under the Indenture, according to their
tenor and effect and the performance of all provisions of the
Indenture and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, hypothecates,
affects, pledges, sets over and confirms a security interest in
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN and (to
the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, as Trustees,
and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all properties
of the Company real, personal and mixed, of any kind or nature
(except as in the Indenture expressly excepted), now owned
(including, but not limited to, that located in the following
counties in the State of Mississippi: Adams, Amite, Attala,
Bolivar, Calhoun, Carroll, Choctaw, Claiborne, Coahoma, Copiah,
Covington, DeSoto, Franklin, Grenada, Hinds, Holmes, Humphreys,
Issaquena, Jefferson, Jefferson Davis, Lawrence, Leake, Leflore,
Lincoln, Madison, Montgomery, Panola, Pike, Quitman, Rankin,
Scott, Sharkey, Simpson, Smith, Sunflower, Tallahatchie, Tate,
Tunica, Walthall, Warren, Washington, Webster, Wilkinson,
Yalobusha and Yazoo; and in Independence County, Arkansas, and
Campbell County, Wyoming) or, subject to the provisions of
Section 15.03 of the Original Indenture, hereafter acquired by
the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anywise limiting or impairing by
the enumeration of the same, the scope and intent of the
foregoing or of any general description contained in the
Indenture) all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same; all power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, dams, dam sites,
aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam,
water and/or other power; all power houses, street lighting
systems, standards and other equipment incidental thereto; all
telephone, radio and television systems, air conditioning systems
and equipment incidental thereto, water wheels, water works,
water systems, steam heat and hot water plants, substations,
electric, gas and water lines, service and supply systems,
bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the
equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and
(except as in the Indenture expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property in the Indenture
described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any in the
Indenture expressly excepted, shall be and are as fully granted
and conveyed by the Indenture and as fully embraced within the
Lien of the Indenture as if such property, rights and franchises
were now owned by the Company and were specifically described by
the Indenture and granted and conveyed by the Indenture.
PROVIDED that the following are not and are not
intended to be now or hereafter granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
hypothecated, affected, pledged, set over or confirmed hereunder,
nor is a security interest therein hereby granted or intended to
be granted, and the same are hereby expressly excepted from the
Lien and operation of the Indenture, viz: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not in the Indenture specifically pledged, paid, deposited,
delivered or held under the Indenture or covenanted so to be; (2)
merchandise, equipment, apparatus, materials or supplies held for
the purpose of sale or other disposition in the usual course of
business or for the purpose of repairing or replacing (in whole
or part) any rolling stock, buses, motor coaches, automobiles or
other vehicles or aircraft or boats, ships, or other vessels and
any fuel, oil and similar materials and supplies consumable in
the operation of any of the properties of the Company; rolling
stock, buses, motor coaches, automobiles and other vehicles and
all aircraft; boats, ships and other vessels; all timber,
minerals, mineral rights and royalties; (3) bills, notes and
other instruments and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Indenture or
covenanted so to be; (4) the last day of the term of any lease or
leasehold which may hereafter become subject to the Lien of the
Indenture; (5) electric energy, gas, water, steam, ice, and other
materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the
ordinary course of its business; (6) any natural gas wells or
natural gas leases or natural gas transportation lines or other
works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system, and any natural gas distribution
system; and (7) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly
excepted from the Lien and operation of the Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XII of the Original
Indenture by reason of the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed or in which a security interest
has been granted by the Company as aforesaid, or intended so to
be (subject, however, to Excepted Encumbrances as defined in
Section 1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN
and to the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, and their
successors and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Indenture set forth, for the equal pro rata benefit and security
of all and each of the bonds and coupons issued and to be issued
under the Indenture, or any of them, in accordance with the terms
of the Indenture, without preference, priority or distinction as
to the Lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject to the
provisions in the Indenture set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being
intended that, subject as aforesaid, the Lien and security of all
of said bonds and coupons of all series issued or to be issued
under the Indenture shall take effect from the date of the
initial issuance of bonds under the Indenture, and that the Lien
and security of the Indenture shall take effect from said date as
though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date.
PROVIDED, HOWEVER, these presents are upon the
condition that if the Company, its successors or assigns, shall
pay or cause to be paid, the principal of and interest on said
bonds, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or
to become due thereon for principal and interest, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by it, then the Indenture and the estate and rights
granted under the Indenture shall cease, determine and be void,
otherwise to be and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by the
Company that all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to
the property hereinbefore described and conveyed and to the
estate, rights, obligations and duties of the Company and the
Trustees and their successor or successors as Trustees in such
trust in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the
execution of the Original Indenture and had been specifically and
at length described in and conveyed to said Trustees by the
Original Indenture as a part of the property therein stated to be
conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in such trust as
follows:
DEFINITIONS AND RULES OF CONSTRUCTION
Terms From the Original Indenture. All defined terms
used in this __________ Supplemental Indenture and not otherwise
defined herein shall have the respective meanings ascribed to
them in the Original Indenture.
Certain Defined Terms. As used in this
Supplemental Indenture, the following defined terms shall have
the respective meanings specified unless the context clearly
requires otherwise:
The term "Original Indenture" shall have the meaning
specified in the first paragraph hereof.
The term "Person" shall mean any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
The term "Rate Order" shall mean the Final Order on
Rehearing, dated September 16, 1985, as amended by further orders
dated, respectively, September 29, 1988 and September 7, 1989,
issued by the Mississippi Public Service Commission providing
for, among other things, the recovery by the Company of Deferred
Grand Gulf I Costs.
The term "System Energy" shall mean System Energy
Resources, Inc., an Arkansas corporation, or any successor
company to which the Company shall be obligated to purchase
capacity and energy from Grand Gulf I.
The term " Series" shall have the meaning
specified in Section 2.01.
References Are to Supplemental Indenture. Unless the
context otherwise requires, all references herein to "Articles",
"Sections" and other subdivisions refer to the corresponding
Articles, Sections and other subdivisions of this ______________
Supplemental Indenture, and the words "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this
___________ Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision hereof or to the
Original Indenture or any other supplemental indenture thereto.
Number and Gender. Unless the context otherwise
requires, defined terms in the singular include the plural, and
in the plural include the singular. The use of a word of any
gender shall include all genders.
THE ______________ SERIES
Bonds of the __________ Series. There shall be a
series of bonds designated as the Pollution Control Series ____
(herein sometimes referred to as the "__________ Series"), each
of which shall also bear the descriptive title "General and
Refunding Mortgage Bond" unless subsequent to the issuance of
such bonds a different descriptive title is permitted by Section
2.01 of the Original Indenture. The form of bonds of the
__________ Series shall be substantially in the form of Exhibit A
hereto. Bonds of the _____________ Series shall mature on
________________, and shall be issued only as fully registered
bonds in denominations of One Thousand Dollars and such other
denominations as the officers of the Company shall determine to
issue (such determination to be evidenced by the execution and
delivery thereof); the principal of and, to the extent permitted
by the Original Indenture, interest on any overdue principal on
each said bond to be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, New
York, in such coin or currency of the United States of America as
at the time of payment is legal tender for public and private
debts. Bonds of the _________ Series shall be dated as in
Section 2.03 of the Original Indenture provided.
(I) The bonds of the ______________ Series shall be
issued and delivered to, and registered in the name of, the
trustee under the Trust Indenture, dated as of _______________
(hereinafter called the "__________ Indenture"), of __________
County, __________ (hereinafter called the "County") relating to
its Pollution Control _____________ Bonds, __________ Series ____
(Mississippi Power & Light Company Project) (hereinafter called
the "_________ Bonds"), in order to evidence in part the
Company's obligation to make certain ________ payments under the
______________, dated as of _______________, between _________
County and the Company.
The obligation of the Company to make any payment of
principal of the bonds of the _________ Series, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the __________ Indenture of the
amount of the corresponding payment required to be made by the
County thereunder in respect of the principal of the __________
Bonds. The Corporate Trustee may conclusively presume that the
obligation of the Company to pay the principal of the bonds of
the _________ Series as the same shall become due and payable
shall have been fully satisfied and discharged unless and until
it shall have received a written notice (which may be a facsimile
followed by a hard copy) from the trustee under the _________
Indenture, signed by its President, a Vice President or a Trust
Officer, stating that the corresponding payment of principal of
the __________ Bonds has become due and payable and has not been
fully paid and specifying the amount of funds required to make
such payment.
(II) In the event that any __________ Bonds
outstanding under the __________ Indenture shall become
immediately due and payable pursuant to Section ____ of the
__________ Indenture, upon the occurrence of an Event of Default
under Section ______ of the __________ Indenture, all bonds of
the __________ Series, then outstanding, shall be redeemed by the
Company, on the date such __________ Bonds shall have become
immediately due and payable, at the principal amount thereof.
In the event that any __________ Bonds are to be
redeemed pursuant to Section _____ of the __________ Indenture,
bonds of the __________ Series, in a principal amount equal, as
nearly as practicable, to the sum of (i) the principal amount of
such __________ Bonds and (ii) __________ (____) of the annual
interest due on such __________ Bonds, shall be redeemed by the
Company, on the date fixed for redemption of __________ Bonds, at
the principal amount thereof.
The Corporate Trustee may conclusively presume that no
redemption of bonds of the __________ Series is required pursuant
to this subsection (II) unless and until it shall have received a
written notice (which may be a facsimile followed by a hard copy)
from the trustee under the __________ Indenture, signed by its
President, a Vice President or a Trust Officer, stating that the
__________ Bonds have become immediately due and payable pursuant
to Section ____ of the __________ Indenture, upon the occurrence
of an Event of Default under Section _____ of the __________
Indenture, or that the __________ Bonds are to be redeemed
pursuant to Section _____ of the __________ Indenture and
specifying the principal amount thereof, as the case may be.
Said notice shall also contain a waiver of notice of such
redemption by the trustee under the __________ Indenture, as the
holder of all the bonds of the __________ Series then
outstanding.
(III) The Company hereby waives its right to have any
notice of any redemption pursuant to subsection (II) of this
Section 2.01 state that such notice is subject to the receipt of
the redemption moneys by the Corporate Trustee before the date
fixed for redemption. Notwithstanding the provisions of Section
10.02 of the Original Indenture, any such notice under such
subsection shall not be conditional.
(IV) At the option of the registered owner, any bonds
of the __________ Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, together with a
written instrument of transfer in form approved by the registrar
duly executed by the registered owner or by his duly authorized
attorney, shall (subject to the provisions of Section 2.05 of the
Original Indenture) be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized
denominations.
Bonds of the __________ Series shall not be
transferable except to any successor trustee under the __________
Indenture, any such transfer to be made (subject to the
provisions of Section 2.05 of the Original Indenture) at the
office or agency of the Company in the Borough of Manhattan, The
City of New York.
The Company hereby waives any right to make a charge
for any exchange or transfer of bonds of the __________ Series.
(V) The bonds of the ___________ Series may bear such
legends as may be necessary to comply with any law or with any
rules or regulations made pursuant thereto or with the rules or
regulations of any stock exchange or to conform to usage with
respect thereto.
COVENANTS
Maintenance of Paying Agent. So long as any bonds of
the __________ Series are Outstanding, the Company covenants that
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York where the principal of or interest
on any bonds of such series shall be payable shall also be an
office or agency where any such bonds may be transferred or
exchanged and where notices, presentations or demands to or upon
the Company in respect of such bonds or in respect of the
Indenture may be given or made.
Further Assurances. From time to time whenever
reasonably requested by the Trustee or the holders of not less
than a majority in principal amount of the ____________ Series
Bonds then Outstanding, the Company will make, execute and
deliver or cause to be made, executed and delivered any and all
such further and other instruments and assurances as may be
reasonably necessary or proper to carry out the intention of or
to facilitate the performance of the terms of the Indenture or to
secure the rights and remedies of the holders of such bonds.
Protection of Rate Order. So long as any bonds
are Outstanding under the Indenture that were issued under
Article IV of the Original Indenture, the Company covenants that
it will:
(a) take all reasonable actions (i) to maintain in full
force and effect the Rate Order or any other regulatory
authorization or legal or other authority pursuant to which the
Company recovers amounts paid to System Energy in respect of
capacity and energy from Grand Gulf I and records Deferred Grand
Gulf I Costs on its books as assets and (ii) to defend against
any action, suit or regulatory proceeding seeking to abrogate,
invalidate or materially adversely modify the Rate Order or such
regulatory authorization or legal or other authority; and
(b) not take any action to modify the Rate Order or such
other regulatory authorization or legal or other authority unless
it first delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that, in the opinion of the
signers, such proposed modification is not materially adverse to
the interest of the registered owners of Outstanding bonds that
were issued under Article IV of the Original Indenture.
Limitation on Sale, Transfer or Pledge of Deferred
Grand Gulf I Costs. So long as any Bonds are Outstanding under
the Indenture that were issued under Article IV of the Original
Indenture, the Company covenants that it will not sell, assign,
transfer or otherwise dispose of, or grant, incur or permit to
exist any Lien on, any of its Deferred Grand Gulf I Costs, other
than the Lien of the Indenture or as may be contemplated by the
granting clauses of the 1944 Mortgage as of the date of this
Sixth Supplemental Indenture.
Preconsent to Modification of Rights under Sections
3.03 and 3.04. The Holders of the bonds of the ________ Series
hereby consent to any modification of the Rate Order or any other
act, disposition, Lien or thing prohibited or limited by Sections
3.03 or 3.04 of this __________ Supplemental Indenture or the
failure to take any action required by such Sections or the
waiver or amendment of any provision of such Sections if the
Company obtains the consent (in any number of instruments of
similar tenor executed by registered owners of bonds or by their
attorneys appointed in writing) to such modification, act,
omission, disposition, Lien, thing, failure to act, waiver or
amendment of the registered owners of at least a majority in
aggregate principal amount of the bonds then Outstanding under
the Indenture that were issued under Article IV of the Original
Indenture.
MISCELLANEOUS PROVISIONS
Acceptance of Trusts. The Trustees hereby accept the
trusts herein declared, provided, created or supplemented and
agree to perform the same upon the terms and conditions herein
and in the Original Indenture, as heretofore supplemented, set
forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency
of this __________ Supplemental Indenture or for or in
respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each
and every term and condition contained in Article XVI of the
Original Indenture shall apply to and form part of this
____________ Supplemental Indenture with the same force and
effect as if the same were herein set forth in full with
such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of
this Sixth Supplemental Indenture.
Effect of Supplemental Indenture under Louisiana Law.
It is the intention and it is hereby agreed that, so far as
concerns that portion of the Mortgaged and Pledged Property
situated within the State of Louisiana, the general language of
conveyance contained in this _____________ Supplemental Indenture
is intended and shall be construed as words of hypothecation and
not of conveyance and that, so far as the said Louisiana property
is concerned, this Sixth Supplemental Indenture shall be
considered as an act of mortgage and pledge under the laws of the
State of Louisiana, and the Trustees herein named are named as
mortgagee and pledgee in trust for the benefit of themselves and
of all present and future holders of bonds of the __________
Series and any coupons thereto issued hereunder, and are
irrevocably appointed special agents and representatives of the
holders of the bonds and coupons issued hereunder and vested with
full power in their behalf to effect and enforce the mortgage and
pledge hereby constituted for their benefit, or otherwise to act
as herein provided for.
Titles. The titles of the several Articles and
Sections of this __________ Supplemental Indenture and the table
of contents shall not be deemed to be any part hereof.
Counterparts. This _________ Supplemental Indenture
may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
Governing Law. The laws of the State of New York shall govern
this ___________ Supplemental Indenture and the bonds of the
__________ Series, except to the extent that the validity or
perfection of the Lien of the Indenture, or remedies thereunder,
are governed by the laws of a jurisdiction other than the State
of New York.
<PAGE>
IN WITNESS WHEREOF, MISSISSIPPI POWER & LIGHT COMPANY
has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board,
Chief Executive Officer, President or one of its Vice Presidents,
and its corporate seal to be attested by its Secretary or one of
its Assistant Secretaries for and in its behalf, and BANK OF
MONTREAL TRUST COMPANY has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by
one of its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant Vice
Presidents or Assistant Secretaries, and MARK F. MCLAUGHLIN has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
________________
Vice President
Attest:
__________________________
_______________
Assistant Secretary
Executed, sealed and delivered by
MISSISSIPPI POWER AND LIGHT COMPANY
in the presence of:
_________________________________
_________________________________
<PAGE>
BANK OF MONTREAL TRUST COMPANY
As Trustee
By:____________________________________
Name: ______________________________
Title: Vice President and Trust
Officer
Attest:
_____________________________
Name: __________________
Title: Assistant Secretary
___________________________[L.S.]
MARK F. MCLAUGHLIN as
Co-Trustee
Executed, sealed and delivered by
BANK OF MONTREAL TRUST COMPANY
and MARK F. MCLAUGHLIN in the
presence of:
_________________________________
_________________________________
<PAGE>
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the aforesaid Parish and State, the within
named ______________, as __________ of MISSISSIPPI POWER & LIGHT
COMPANY, who acknowledged that he signed and delivered the
foregoing instrument on the day and year therein stated, by the
authority and as the act and deed of the corporation.
On the th day of _______________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_________________________________________; that he is a
_______________ of MISSISSIPPI POWER & LIGHT COMPANY, the
corporation described in and which executed the above instrument;
that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that is was so affixed
by order of the Board of Directors of said corporation, and that
he signed his name thereto by like order.
Given under my hand and seal this __th day of
________________.
____________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named ________________, as Vice President, and _______________,
as Assistant Secretary of BANK OF MONTREAL TRUST COMPANY, who
acknowledged that they signed, attached the corporate seal of the
corporation thereto and delivered the foregoing instrument on the
day and year therein stated, by the authority and as the act and
deed of the corporation.
On the __th day of ________________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_______________________; that he is a Vice President and Trust
Officer of BANK OF MONTREAL TRUST COMPANY, the corporation
described in and which executed the above instrument; that he
knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Given under my hand and seal this __th day of
__________________.
_________________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named MARK F. MCLAUGHLIN, who acknowledged that he signed, sealed
and delivered the foregoing instrument on the day and year
therein mentioned.
On the __th day of _____________, before me personally
came MARK F. MCLAUGHLIN, to me known to be the person described
in and who acknowledged the foregoing instrument, and
acknowledged that he executed the same.
Given under my hand and seal this __th day of
____________.
_______________________________
Notary Public
<PAGE>
EXHIBIT A
[FORM OF BOND OF _____________ SERIES]
This bond is not transferable except to a successor trustee under
the Trust Indenture, dated as of _________ (hereinafter called
the _________ Indenture), between _______ County, __________
(hereinafter called the County) relating to its Pollution Control
________ Bonds, __________ Series___ (Mississippi Power & Light
Company Project) (hereinafter called the _____ Bonds) and
_____________, as trustee.
GENERAL AND REFUNDING MORTGAGE BOND,
POLLUTION CONTROL SERIES___
No. ______ $ ___________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and validly existing of the State of Mississippi
(hereinafter called the Company), for value received, hereby
promises to pay to ___________________ or registered assigns, at
the office or agency of the Company in New York, New York, the
principal sum of $_________ on ____________ in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, without
interest until the principal of this bond shall have become due
and payable.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor thereunder, shall have signed the
authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, Pollution Control
Series ____ (herein called bonds of the _____________ Series),
all bonds of all series issued under and equally secured by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, called the Mortgage), dated as of February
1, 1988, duly executed by the Company to Bank of Montreal Trust
Company and Mark F. McLaughlin (successor to Z. George
Klodnicki), as Trustees. Reference is made to the Mortgage for a
description of the mortgaged and pledged property, assets and
rights, the nature and extent of the lien and security, the
respective rights, limitations of rights, covenants, obligations,
duties and immunities thereunder of the Company, the holders of
bonds and the Trustees and the terms and conditions upon which
the bonds are, and are to be, secured, the circumstances under
which additional bonds may be issued and the definition of
certain terms herein used, to all of which, by its acceptance of
this bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the __________ Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without
coupons in the denominations of $1,000 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is not
transferable except to any successor trustee under the ______
Indenture, any such transfer to be made as prescribed in the
Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in
New York, New York, upon surrender of this bond, and upon
payment, if the Company shall require it, of the transfer charges
provided for in the Mortgage, and, thereupon, a new fully
registered bond of the same series for a like principal amount
will be issued to the transferee in exchange hereof as provided
in the Mortgage. The Company and the Trustees may deem and treat
the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustees shall be
affected by any notice to the contrary.
This bond is redeemable in the manner and at such
redemption prices as are provided in the Mortgage.
The bonds of the ________ Series have been issued in
order to evidence in part the obligation of the Company to make
certain payments under the _________________, dated as of
_________, between the County and the Company
The obligation of the Company to make any payment of
principal of the bonds of _______ Series, whether at maturity,
upon redemption or otherwise, shall be reduced by the amount of
any reduction under the _________ Indenture of the amount of the
corresponding payment required to be made by the County
thereunder in respect of the principal of the _____ Bonds.
Bank of Montreal Trust Company, Corporate Trustee, may
conclusively presume that the obligation of the Company to pay
the principal of the bonds of ________ series as the same shall
become due and payable shall have been fully satisfied and
discharged unless and until it shall have received a written
notice (which may be a facsimile followed by a hard copy) from
the trustee under the __________ Indenture, signed by its
President, a Vice President or a Trust Officer, stating that the
corresponding payment of principal of the ________ Bonds has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Mississippi Power & Light Company
has caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated:
MISSISSIPPI POWER & LIGHT COMPANY
By:_____________________________________
Title:
Attest:
__________________________
Title:
<PAGE>
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST COMPANY, as Trustee
By:________________________________________
EXHIBIT A-4
[(See legend at the end of this bond for
restrictions on transferability and change of form)]
GENERAL AND REFUNDING MORTGAGE BOND
____% Series due _____________
CUSIP ___________
No. R-__ $___________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and validly existing of the State of Mississippi
(hereinafter called the Company), for value received, hereby
promises to pay to ______________ or registered assigns, at the
office or agency of the Company in New York, New York, the
principal sum of $_________ on ______________ in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, and to pay
in like manner to the registered owner hereof interest thereon
from _______________, if the date of this bond is prior to
_______________, or, if the date of this bond is on or after
_______________, from the __________ or ___________ next
preceding the date of this bond to which interest has been paid
(unless the date hereof is an interest payment date to which
interest has been paid, in which case from the date hereof), at
the rate of __________________ per centum (____%) per annum in
like coin or currency on _________ and __________ in each year
and at maturity, until the principal of this bond shall have
become due and been duly paid or provided for, and to pay
interest (before and after judgment) on any overdue principal,
premium, if any, and on any defaulted interest at the rate of
____________________ per centum (____%) per annum. Interest on
this bond shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest on this bond in
respect of a portion of a month shall be calculated based on the
actual number of days elapsed.
The interest so payable on any interest payment date
will, subject to certain exceptions provided in the Mortgage
hereinafter referred to, be paid to the person in whose name this
bond is registered at the close of business (whether or not a
business day) on the day immediately preceding such interest
payment date. At the option of the Company, interest may be paid
by check mailed on or prior to such interest payment date to the
address of the person entitled thereto as such address shall
appear on the register of the Company.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor thereunder, shall have signed the
authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, ____% Series due
_______________ (herein called bonds of the __________ Series),
all bonds of all series issued under and equally secured by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, called the Mortgage), dated as of February
1, 1988, duly executed by the Company to Bank of Montreal Trust
Company and Mark F. McLaughlin (successor to Z. George
Klodnicki), as Trustees. Reference is made to the Mortgage for a
description of the mortgaged and pledged property, assets and
rights, the nature and extent of the lien and security, the
respective rights, limitations of rights, covenants, obligations,
duties and immunities thereunder of the Company, the holders of
bonds and the Trustees and the terms and conditions upon which
the bonds are, and are to be, secured, the circumstances under
which additional bonds may be issued and the definition of
certain terms herein used, to all of which, by its acceptance of
this bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the __________ Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without
coupons in the denominations of $1,000 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is
transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company
under certain circumstances in the manner and at such redemption
prices as are provided in the Mortgage.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
<PAGE>
IN WITNESS WHEREOF, Mississippi Power & Light Company
has caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated:
MISSISSIPPI POWER & LIGHT COMPANY
By:
Vice President
Attest:
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
Authorized Signature
<PAGE>
[LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Trustee by the
Depository Trust Company or its successor (the "Depositary"),
this bond may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).]
EXHIBIT A-5
This bond is not transferable except to a successor trustee under
the Trust Indenture, dated as of _________ (hereinafter called
the _________ Indenture), between _______ County, __________
(hereinafter called the County) relating to its Pollution Control
________ Bonds, __________ Series___ (Mississippi Power & Light
Company Project) (hereinafter called the _____ Bonds) and
_____________, as trustee.
GENERAL AND REFUNDING MORTGAGE BOND,
POLLUTION CONTROL SERIES___
No. ______ $ ___________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and validly existing of the State of Mississippi
(hereinafter called the Company), for value received, hereby
promises to pay to ___________________ or registered assigns, at
the office or agency of the Company in New York, New York, the
principal sum of $_________ on ____________ in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, without
interest until the principal of this bond shall have become due
and payable.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor thereunder, shall have signed the
authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, Pollution Control
Series ____ (herein called bonds of the _____________ Series),
all bonds of all series issued under and equally secured by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, called the Mortgage), dated as of February
1, 1988, duly executed by the Company to Bank of Montreal Trust
Company and Mark F. McLaughlin (successor to Z. George
Klodnicki), as Trustees. Reference is made to the Mortgage for a
description of the mortgaged and pledged property, assets and
rights, the nature and extent of the lien and security, the
respective rights, limitations of rights, covenants, obligations,
duties and immunities thereunder of the Company, the holders of
bonds and the Trustees and the terms and conditions upon which
the bonds are, and are to be, secured, the circumstances under
which additional bonds may be issued and the definition of
certain terms herein used, to all of which, by its acceptance of
this bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the __________ Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without
coupons in the denominations of $1,000 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is not
transferable except to any successor trustee under the ______
Indenture, any such transfer to be made as prescribed in the
Mortgage by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in
New York, New York, upon surrender of this bond, and upon
payment, if the Company shall require it, of the transfer charges
provided for in the Mortgage, and, thereupon, a new fully
registered bond of the same series for a like principal amount
will be issued to the transferee in exchange hereof as provided
in the Mortgage. The Company and the Trustees may deem and treat
the person in whose name this bond is registered as the absolute
owner hereof for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustees shall be
affected by any notice to the contrary.
This bond is redeemable in the manner and at such
redemption prices as are provided in the Mortgage.
The bonds of the ________ Series have been issued in
order to evidence in part the obligation of the Company to make
certain payments under the _________________, dated as of
_________, between the County and the Company
The obligation of the Company to make any payment of
principal of the bonds of _______ Series, whether at maturity,
upon redemption or otherwise, shall be reduced by the amount of
any reduction under the _________ Indenture of the amount of the
corresponding payment required to be made by the County
thereunder in respect of the principal of the _____ Bonds.
Bank of Montreal Trust Company, Corporate Trustee, may
conclusively presume that the obligation of the Company to pay
the principal of the bonds of ________ series as the same shall
become due and payable shall have been fully satisfied and
discharged unless and until it shall have received a written
notice (which may be a facsimile followed by a hard copy) from
the trustee under the __________ Indenture, signed by its
President, a Vice President or a Trust Officer, stating that the
corresponding payment of principal of the ________ Bonds has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Mississippi Power & Light Company
has caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his signature or a facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated:
MISSISSIPPI POWER & LIGHT COMPANY
By:_____________________________________
Title:
Attest:
__________________________
Title:
<PAGE>
AUTHENTICATION CERTIFICATE
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST COMPANY, as Trustee
By:________________________________________
Exhibit A-8
MISSISSIPPI POWER & LIGHT COMPANY
Articles of Amendment
Establishing Series of Shares
Pursuant to the provisions of Section 79-4-6.02(d) of
the Mississippi Code of 1972 (Supp. 1989), Mississippi Power &
Light Company submits the following statement for the purpose of
establishing and designating a series of shares and fixing and
determining the relative rights and preferences thereof:
1. The name of the Corporation is Mississippi Power & Light
Company.
2. The attached resolution establishing and designating
a series of shares and fixing and determining the
relative rights and preferences thereof was duly
adopted by the Board of Directors of the Corporation
on _________________, 199__.
Dated this the ____ day of __________, 199___.
MISSISSIPPI POWER & LIGHT COMPANY
By:
[Insert Officer's Name]
By:
[Insert Officer's Name]
<PAGE>
RESOLVED, That there is hereby established a series of the
Preferred Stock of Mississippi Power & Light Company as follows:
A series of __________ shares of the Preferred Stock shall:
(a) be designated "_________ Preferred Stock,
Cumulative, $100 Par Value";
(b) have a dividend rate of ________ per share per
annum payable quarterly on ________, ________, _________,
and __________ of each year, the first dividend payment date
to be ___________, ____, and such dividends to be cumulative
from _____________, ____;
(c) [be subject to redemption at the price of $_______
per share if redeemed on or before _________, of $________
per share if redeemed after ______________, and on or before
__________, of $________ per share if redeemed after
__________, and on or before ______________, of $_______ per
share if redeemed after _________________, and on or before
__________, of $______ per share if redeemed after _____,
and on or before __________ (provided, however, that no
share of the _________ Preferred Stock, Cumulative, $100 Par
Value, shall be redeemed prior to _________, if such
redemption is for the purpose or in anticipation of
refunding such share through the use, directly or
indirectly, of funds borrowed by the Corporation, or through
the use, directly or indirectly, of funds derived through
the issuance by the Corporation of stock ranking prior to or
on a parity with the __________ Preferred Stock, Cumulative,
$100 Par Value, as to dividends or assets, if such borrowed
funds have an effective interest cost to the Corporation
(computed in accordance with generally accepted financial
practice) or such stock has an effective dividend cost to
the Corporation (so computed), of less than _______ per
annum); of $_______________ per share if redeemed after
_______________, and on or before _____________, of
$________ per share if redeemed after _____________, and on
or before _______, of $___________ per share if redeemed
after __________, and on or before ____________, of
$______________ per share if redeemed after __________ and
on or before ___________, and of $100 per share if redeemed
after ____________, in each case plus an amount equivalent
to the accumulated and unpaid dividends thereon, if any, to
the date fixed for redemption;]* and
(d) be subject to redemption as and for a sinking fund
as follows: on _________ 1, ____ and on each ________ 1
thereafter (each such date being hereinafter referred to as
a "_____ Sinking Fund Redemption Date"), for so long as any
shares of the _____ Preferred Stock, Cumulative, $100 Par
Value, shall remain outstanding, the Corporation shall
redeem, out of funds legally available therefor, ________
shares of the ____ Preferred Stock, Cumulative, $100 Par
Value, (or the number of shares then outstanding if less
than ______) at the sinking fund redemption price of $100
per share plus, as to each share so redeemed, an amount
equivalent to the accumulated and unpaid dividends thereon,
if any, to the date of redemption (the obligation of the
Corporation so to redeem the shares of the _____ Preferred
Stock, Cumulative, $100 Par Value, being hereinafter
referred to as the "_____ Sinking Fund Obligation"); the
____ Sinking Fund Obligation shall be cumulative; if on any
_____ Sinking Fund Redemption Date, the Corporation shall
not have funds legally available therefor sufficient to
redeem the full number of shares required to be redeemed on
that date, the ____ Sinking Fund Obligation with respect to
the shares not redeemed shall carry forward to each
successive ____ Sinking Fund Redemption Date until such
shares shall have been redeemed; whenever on any ____
Sinking Fund Redemption Date, the funds of the Corporation
legally available for the satisfaction of the _____ Sinking
Fund Obligation and all other sinking fund and similar
obligations then existing with respect to any other class or
series of its stock ranking on a parity as to dividends or
assets with the _____ Preferred Stock, Cumulative, $100 Par
Value (such obligation and obligations collectively being
hereinafter referred to as the "Total Sinking Fund
Obligation"), are insufficient to permit the Corporation to
satisfy fully its Total Sinking Fund Obligation on that
date, the Corporation shall apply to the satisfaction of its
____ Sinking Fund Obligation on that date that proportion of
such legally available funds which is equal to the ratio of
such _____ Sinking Fund Obligation to such Total Sinking
Fund Obligation; the Corporation shall be entitled, at its
election, to credit against its _____ Sinking Fund
Obligation on any ______ Sinking Fund Redemption Date any
shares of the ______ Preferred Stock, Cumulative, $100 Par
Value, theretofore redeemed (other than shares of the _____
Preferred Stock, Cumulative, $100 Par value, redeemed
pursuant to the _____ Sinking Fund Obligation) purchased or
otherwise acquired and not previously credited against the
____ Sinking Fund Obligation.]*
_________________________
* This provision is an example of provisions that may apply to
new series of Preferred Stock, and is subject to change.
Exhibit A-10
No. Shares
MISSISSIPPI POWER & LIGHT COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF MISSISSIPPI
% PREFERRED STOCK, CUMULATIVE, $100 PAR VALUE
CUSIP
See Reverse for certain definitions
THIS CERTIFIES THAT ____________________________ is the owner of
S P E C I M E N
FULLY PAID AND NONASSESSABLE SHARES OF THE ___%
PREFERRED STOCK, CUMULATIVE, $100 PAR VALUE, of MISSISSIPPI POWER
& LIGHT COMPANY transferable or assignable on the books of the
Corporation in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. A full
statement of the classes of stock of the Corporation authorized
to be issued and the designations, preferences, limitations and
relative rights of the shares of each class authorized to be
issued, and the variations in the relative rights and preferences
between the shares of each series of Preferred Stock and the
authority of the Board of Directors to fix and determine the
relative rights and preferences of subsequent series, is herein
incorporated by reference to the provisions of the Articles of
Incorporation of the Corporation, which are on file in the office
of the Secretary of State of Mississippi, and a copy of which is
on file with the Transfer Agent. A copy of said provisions
certified by an officer of the Corporation will be furnished by
the Corporation or its Transfer Agent, without charge, to and
upon the request of any certificate holder. The ___% Preferred
Stock, Cumulative, $100 Par Value, is issued subject to all
provisions of said Articles of Incorporation and the holder
hereof, by accepting this certificate, assents to and is bound by
all of the provisions, as now or hereafter amended, of said
Articles of Incorporation. This certificate is not valid until
countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the seal of this Corporation and the signatures
of its duly authorized officers.
Dated:
Secretary President
Registrar Transfer Agent
Authorized Officer Authorized Officer
Registered Countersigned
By: By:
<PAGE>
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed
as though they were written out in full according to applicable
laws or regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - __________ Custodian _______________
(Cust) (Minor)
under Uniform Gift to Minors
Act______________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
For value received, ________________________ hereby sell,
assign and transfer unto [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE] _______________________________
________________________________________________________________
Please print or typewrite name and address including postal zip
code of assignee
_________________________________________________________________
___________________________________________________________Shares
of the Capital Stock represented by the within Certificate, and
do hereby irrevocably constitute and appoint____________________
________________________________________________________________
Attorney to transfer the said stock on the books of the within-
named Corporation with full power of substitution in the
premises.
Dated,_________________________________
_____________________________________
In Presence of
_________________________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the Certificate, every
particular, without alteration or enlargement, or any change
whatever.
Exhibit A-11
No. Shares
MISSISSIPPI POWER & LIGHT COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF MISSISSIPPI
ADJUSTABLE RATE PREFERRED STOCK, CUMULATIVE, $100 PAR VALUE
CUSIP
See Reverse for certain definitions
THIS CERTIFIES THAT ____________________________ is the owner of
S P E C I M E N
FULLY PAID AND NONASSESSABLE SHARES OF THE ADJUSTABLE
RATE PREFERRED STOCK, CUMULATIVE, $100 PAR VALUE, of MISSISSIPPI
POWER & LIGHT COMPANY transferable or assignable on the books of
the Corporation in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. A full
statement of the classes of stock of the Corporation authorized
to be issued and the designations, preferences, limitations and
relative rights of the shares of each class authorized to be
issued, and the variations in the relative rights and preferences
between the shares of each series of Preferred Stock and the
authority of the Board of Directors to fix and determine the
relative rights and preferences of subsequent series, is herein
incorporated by reference to the provisions of the Articles of
Incorporation of the Corporation, which are on file in the office
of the Secretary of State of Mississippi, and a copy of which is
on file with the Transfer Agent. A copy of said provisions
certified by an officer of the Corporation will be furnished by
the Corporation or its Transfer Agent, without charge, to and
upon the request of any certificate holder. The Adjustable Rate
Preferred Stock, Cumulative, $100 Par Value, is issued subject to
all provisions of said Articles of Incorporation and the holder
hereof, by accepting this certificate, assents to and is bound by
all of the provisions, as now or hereafter amended, of said
Articles of Incorporation. This certificate is not valid until
countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the seal of this Corporation and the signatures
of its duly authorized officers.
Dated:
Secretary President
Registrar Transfer Agent
Authorized Officer Authorized Officer
Registered Countersigned
By: By:
<PAGE>
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed
as though they were written out in full according to applicable
laws or regulations:
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - __________ Custodian _______________
(Cust) (Minor)
under Uniform Gift to Minors
Act______________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
For value received, ________________________ hereby sell,
assign and transfer unto [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE] _______________________________
________________________________________________________________
Please print or typewrite name and address including postal zip
code of assignee
_________________________________________________________________
___________________________________________________________Shares
of the Capital Stock represented by the within Certificate, and
do hereby irrevocably constitute and appoint____________________
________________________________________________________________
Attorney to transfer the said stock on the books of the within-
named Corporation with full power of substitution in the
premises.
Dated,_________________________________
_____________________________________
In Presence of
_________________________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the Certificate, every
particular, without alteration or enlargement, or any change
whatever.
EXHIBIT A-12
_________________________________________
MISSISSIPPI POWER & LIGHT COMPANY
TO
______________________
AS TRUSTEE
_________
Indenture
(For Unsecured Debt Securities)
Dated as of ____________, ____
_________________________________________
<PAGE>
MISSISSIPPI POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ____________, ____
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
THIS INDENTURE, dated as of ___________, ____, between
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly organized
and existing under the laws of the State of Mississippi (herein
called the "Company"), having its principal office at P.O. Box
1640, Jackson, Mississippi 39215-1640, and ___________________,
a ______________ corporation, having its principal corporate
trust office at ______________________________, as Trustee
(herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of its unsecured 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 thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the place or
places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche are
payable.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any 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:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Mississippi Power & Light Company
P.O. Box 1640
Jackson, Mississippi 39215-1640
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission, telex or other direct written electronic means, on
the date of transmission, and if transmitted by registered mail,
on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or 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 indenture supplemental hereto, 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
such series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable
or any formulary or other method or other means by which
such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside 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 any Paying Agent or
Agents for such series or Tranche; and, if such is the case,
and if acceptable to the Trustee, that the principal of such
Securities shall be payable without the 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, if any, 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 Officer's Certificate or 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.
(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 any 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, if
any, or interest thereon, shall not be discharged or satisfied by
any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an 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 Tranche, 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 or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any 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 sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any 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, if any, has become
due and payable shall be paid to the Company on Company Request,
or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than ____________ in each year, commencing
_________ __, ____, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section
301 as being subject to waiver pursuant to this Section 607, if
before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by
the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a Company
Order stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the 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
on 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 provisions
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 reasonable costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article 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 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 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 or such obligor
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 or such obligor
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 all or substantially all
of 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 __________ and __________
in each year, commencing ________ __, ____, and at such other
times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as to
the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than ___________ in each year, commencing
____________ __, ____, the Trustee shall transmit to the Holders
and the Commission a report, dated as of the next preceding
________, with respect to any events and other matters described
in Section 313(a) of the Trust Indenture Act, in such manner and
to the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders and the Commission, and the Company
shall file with the Trustee (within 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 or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at
such date, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the
Company 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 any
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 and delivery of any supplemental
indenture under this Article this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture
permitted by this Article may restate this Indenture in its
entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a supplemental indenture or a Board
Resolution as contemplated by Section 301, and not in a
supplemental indenture, 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
supplemental 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 supplemental Officer's Certificate shall be
deemed to be a "supplemental indenture" for purposes of Section
1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and
the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 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
Outstanding Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meet
ing in respect of any Security challenged as not Securities
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.
MISSISSIPPI POWER & LIGHT COMPANY
By:_________________________________
[SEAL]
ATTEST:
_______________________
_____________, Trustee
By:_________________________________
[SEAL]
ATTEST:
_______________________
<PAGE>
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is the
_________________________ of Mississippi Power & Light Company,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____________, ____, before me
personally came _________________, to me known, who, being by me
duly sworn, did depose and say that he is a _________________ of
________________, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-13
[(See legend at the end of this Security
for restrictions on transferability and change of form)]
No. __
Cusip No. __________
MISSISSIPPI POWER & LIGHT COMPANY
____% Debentures due _______________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of Mississippi
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ______________, or registered assigns, the
principal sum of _______________________ on _______________, and to
pay interest on said principal sum from _________________ or from
the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on each ______ and
____________, commencing _______________ at the rate of ____% per
annum until the principal hereof is paid or made available for
payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-
day months. Interest on the Securities of this series will accrue
from ______________ 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 Securities of this series with respect to the
day on which the Securities of this 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. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the __________ or
__________ next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan,
The City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender
for payment of public and private debts, provided, however, that,
at the option of the Company, interest on this Security may be
paid by check mailed to the address of the person entitled
thereto, as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
MISSISSIPPI POWER & LIGHT COMPANY
By:
ATTEST:
____________________________
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_______________________, as Trustee
By:
Authorized Officer
<PAGE>
REVERSE OF SECURITY
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued
and to be issued in one or more series under an Indenture, dated as
of _______________, as amended (herein called the "Indenture",
which term shall have the meaning assigned to it in such
instrument), between the Company and ________________, as Trustee
(herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the
Indenture, including the Board Resolutions and Officer's
Certificate filed with the Trustee on _____________ creating the
series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the
series designated on the face hereof, limited in aggregate
principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
[In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like tenor
for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders
of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to
institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities of
this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of this series
at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Security
at the times, place and rate, and in the coin or currency, herein
prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $____ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized
denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Security is
registered as the absolute owner hereof for all purposes, whether
or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
<PAGE>
[LEGEND
Unless and until this Security is exchanged in whole or
in part for certificated Securities registered in the names of the
various beneficial holders hereof as then certified to the Trustee
by the Depository Trust Company or its successor (the
"Depositary"), this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any certificate
to be issued is registered in the name of Cede & Co., or such other
name as requested by an authorized representative of the Depositary
and any amount payable thereunder is made payable to Cede & Co., or
such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
This Security may be exchanged for certificated
Securities registered in the names of the various beneficial owners
hereof if (a) the Depositary is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed
by the Company within 90 days, or (b) the Company elects to issue
certificated Securities to beneficial owners (as certified to the
Company by the Depositary).]
EXHIBIT A-14
__________________________________________
MISSISSIPPI POWER & LIGHT COMPANY
TO
_________________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of ______________, ____
__________________________________________
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 3
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Discount Security 3
Dollar or $ 3
Eligible Obligations 3
Event of Default 3
Governmental Authority 3
Government Obligations 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 5
Paying Agent 6
Periodic Offering 6
Person 6
Place of Payment 6
Predecessor Security 6
Redemption Date 7
Redemption Price 7
Regular Record Date 7
Required Currency 7
Responsible Officer 7
Securities 7
Security Register and Security Registrar 7
Senior Indebtedness 7
Special Record Date 7
Stated Interest Rate 7
Stated Maturity 8
Tranche 8
Trust Indenture Act 8
Trustee 8
United States 8
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents Delivered to
Trustee 9
SECTION 104. Acts of Holders 10
SECTION 105. Notices, Etc. to Trustee and Company 11
SECTION 106. Notice to Holders of Securities;
Waiver 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of
Contents 13
SECTION 109. Successors and Assigns 13
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 14
ARTICLE TWO 14
Security Forms 14
SECTION 201. Forms Generally 14
SECTION 202. Form of Trustee's Certificate of
Authentication 15
ARTICLE THREE 15
The Securities 15
SECTION 301. Amount Unlimited; Issuable in Series 15
SECTION 302. Denominations 19
SECTION 303. Execution, Authentication, Delivery
and Dating 19
SECTION 304. Temporary Securities 22
SECTION 305. Registration, Registration of
Transfer and Exchange 22
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 23
SECTION 307. Payment of Interest; Interest Rights
Preserved 24
SECTION 308. Persons Deemed Owners 25
SECTION 309. Cancellation by Security Registrar 26
SECTION 310. Computation of Interest 26
SECTION 311. Payment to Be in Proper Currency 26
SECTION 312. Extension of Interest Payment 27
ARTICLE FOUR 27
Redemption of Securities 27
SECTION 401. Applicability of Article 27
SECTION 402. Election to Redeem; Notice to
Trustee 27
SECTION 403. Selection of Securities to Be
Redeemed 27
SECTION 404. Notice of Redemption 28
SECTION 405. Securities Payable on Redemption
Date 29
SECTION 406. Securities Redeemed in Part 30
ARTICLE FIVE 30
Sinking Funds 30
SECTION 501. Applicability of Article 30
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities 30
SECTION 503. Redemption of Securities for Sinking
Fund 31
ARTICLE SIX 31
Covenants 31
SECTION 601. Payment of Principal, Premium and
Interest 31
SECTION 602. Maintenance of Office or Agency 32
SECTION 603. Money for Securities Payments to Be
Held in Trust 32
SECTION 604. Corporate Existence 34
SECTION 605. Maintenance of Properties 34
SECTION 606. Annual Officer's Certificate as to
Compliance. 34
SECTION 607. Waiver of Certain Covenants 34
ARTICLE SEVEN 35
Satisfaction and Discharge 35
SECTION 701. Satisfaction and Discharge of
Securities 35
SECTION 702. Satisfaction and Discharge of
Indenture 37
SECTION 703. Application of Trust Money 38
ARTICLE EIGHT 39
Events of Default; Remedies 39
SECTION 801. Events of Default 39
SECTION 802. Acceleration of Maturity; Rescission
and Annulment 40
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee 41
SECTION 804. Trustee May File Proofs of Claim 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 42
SECTION 806. Application of Money Collected 43
SECTION 807. Limitation on Suits 43
SECTION 808. Unconditional Right of Holders to
Receive Principal,
Premium and Interest 44
SECTION 809. Restoration of Rights and Remedies 44
SECTION 810. Rights and Remedies Cumulative 44
SECTION 811. Delay or Omission Not Waiver 45
SECTION 812. Control by Holders of Securities 45
SECTION 813. Waiver of Past Defaults 45
SECTION 814. Undertaking for Costs 46
SECTION 815. Waiver of Stay or Extension Laws 46
ARTICLE NINE 46
The Trustee 46
SECTION 901. Certain Duties and Responsibilities 46
SECTION 902. Notice of Defaults 48
SECTION 903. Certain Rights of Trustee 48
SECTION 904. Not Responsible for Recitals or
Issuance of Securities 49
SECTION 905. May Hold Securities 49
SECTION 906. Money Held in Trust 50
SECTION 907. Compensation and Reimbursement 50
SECTION 908. Disqualification; Conflicting
Interests. 50
SECTION 909. Corporate Trustee Required;
Eligibility 51
SECTION 910. Resignation and Removal; Appointment
of Successor 51
SECTION 911. Acceptance of Appointment by
Successor 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 54
SECTION 913. Preferential Collection of Claims
Against Company 55
SECTION 914. Co-trustees and Separate Trustees. 55
SECTION 915. Appointment of Authenticating Agent 56
ARTICLE TEN 58
Holders' Lists and Reports by Trustee and Company 58
SECTION 1001. Lists of Holders 58
SECTION 1002. Reports by Trustee and Company 59
ARTICLE ELEVEN 59
Consolidation, Merger, Conveyance or Other Transfer 59
SECTION 1101. Company May Consolidate, Etc., Only
on Certain Terms 59
SECTION 1102. Successor Corporation Substituted 60
ARTICLE TWELVE 60
Supplemental Indentures 60
SECTION 1201. Supplemental Indentures Without
Consent of Holders 60
SECTION 1202. Supplemental Indentures With
Consent of Holders 62
SECTION 1203. Execution of Supplemental
Indentures 64
SECTION 1204. Effect of Supplemental Indentures 64
SECTION 1205. Conformity With Trust Indenture Act 64
SECTION 1206. Reference in Securities to
Supplemental Indentures 64
SECTION 1207. Modification Without Supplemental
Indenture 65
ARTICLE THIRTEEN 65
Meetings of Holders; Action Without Meeting 65
SECTION 1301. Purposes for Which Meetings May Be
Called 65
SECTION 1302. Call, Notice and Place of Meetings 65
SECTION 1303. Persons Entitled to Vote at
Meetings 66
SECTION 1304. Quorum; Action 66
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and
Adjournment of Meetings 67
SECTION 1306. Counting Votes and Recording Action
of Meetings 68
SECTION 1307. Action Without Meeting 69
ARTICLE FOURTEEN 69
Immunity of Incorporators, Stockholders, Officers and
Directors 69
SECTION 1401. Liability Solely Corporate 69
ARTICLE FIFTEEN 69
Subordination of Securities 69
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 69
SECTION 1502. Payment Over of Proceeds of
Securities 70
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness 72
SECTION 1504. Subrogation 72
SECTION 1505. Obligation of the Company
Unconditional 72
SECTION 1506. Priority of Senior Indebtedness
Upon Maturity 73
SECTION 1507. Trustee as Holder of Senior
Indebtedness 73
SECTION 1508. Notice to Trustee to Effectuate
Subordination 73
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness 74
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness 74
SECTION 1511. Paying Agents Other Than the
Trustee 74
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 75
SECTION 1513. Effect of Subordination Provisions;
Termination 75
Testimonium 76
Signatures and Seals 76
Acknowledgements 77
MISSISSIPPI POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of ______________________, ____
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of _________________, between
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company"), having its
principal office at P.O. Box 1640, Jackson, Mississippi
39215-1640, and , a
, having its principal corporate trust office at
, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities") in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
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
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than
the Company or an Affiliate of the Company) authorized by
the Trustee to act on behalf of the Trustee to authenticate
one or more series of Securities.
"Authorized Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as
may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at
_____________________________________________________.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which
provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802. "Interest" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated
Interest Rate.
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency,
such other obligations or instruments as shall be
specified with respect to such Securities, as
contemplated by Section 301.
"Event of Default" with respect to Securities of a
particular series has the meaning specified in Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or
obligations the principal of and interest on which
are unconditionally guaranteed by, the United
States entitled to the benefit of the full faith
and credit thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required
by law, such custodian shall be obligated to pay to
the holders of such certificates, depositary
receipts or other instruments the full amount
received by such custodian in respect of such
obligations or specific payments and shall not be
permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered and as it may from time to time
be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms
of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security
or an installment of principal becomes due and payable
as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"Officer's Certificate" means a certificate signed
by an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by
the Trustee or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid
in accordance with Section 701; and
(c) Securities which have been paid
pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been presented to
the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not
the Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the
Company or any other obligor upon the
Securities or any Affiliate of the Company or
of such other obligor (unless the Company,
such Affiliate or such obligor owns all
Securities Outstanding under this Indenture,
or all Outstanding Securities of each such
series and each such Tranche, as the case may
be, determined without regard to this clause
(x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining
whether the Trustee shall be protected in
relying upon any such request, demand, authori
zation, direction, notice, consent or waiver
or upon any such determination as to the
presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so
disregarded; provided, however, that
Securities so owned which have been pledged in
good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with
respect to such Securities and that the
pledgee is not the Company or any other
obligor upon the Securities or any Affiliate
of the Company or of such other obligor;
(y) the principal amount of a
Discount Security that shall be deemed to be
Outstanding for such purposes shall be the
amount of the principal thereof that would be
due and payable as of the date of such
determination upon a declaration of
acceleration of the Maturity thereof pursuant
to Section 802; and
(z) the principal amount of
any Security which is denominated in a
currency other than Dollars or in a composite
currency that shall be deemed to be
Outstanding for such purposes shall be the
amount of Dollars which could have been
purchased by the principal amount (or, in the
case of a Discount Security, the Dollar
equivalent on the date determined as set forth
below of the amount determined as provided in
(y) above) of such currency or composite
currency evidenced by such Security, in each
such case certified to the Trustee in an
Officer's Certificate, based (i) on the
average of the mean of the buying and selling
spot rates quoted by three banks which are
members of the New York Clearing House
Association selected by the Company in effect
at 11:00 A.M. (New York time) in The City of
New York on the fifth Business Day preceding
any such determination or (ii) if on such
fifth Business Day it shall not be possible or
practicable to obtain such quotations from
such three banks, on such other quotations or
alternative methods of determination which
shall be as consistent as practicable with the
method set forth in (i) above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such
Security that shall be deemed to be Outstanding at any
time for all purposes of this Indenture shall be the
original principal amount thereof less the aggregate
amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities
of a series from time to time any or all of the specific
terms of which Securities, including without limitation
the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability
company, limited liability partnership or unincorporated
organization or any Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section
301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the Securities
of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be
deemed (to the extent lawful) to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by the Trustee to administer its corporate trust
matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including
both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment of
money relating to any lease which is capitalized on the
consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the
Company.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series means
a date fixed by the Trustee pursuant to Section 307.
"Stated Interest Rate" means a rate (whether fixed
or variable) at which an obligation by its terms is
stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security
shall be made without regard to the effective interest
cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to
the Company of, any other indebtedness in respect of the
Company's obligations which are evidenced or secured in
whole or in part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal
of such obligation or such installment of principal or
interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are
of the same series and (b) have identical terms except
as to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, 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 certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature
and scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of
each such Person, such Person has made such
examination or investigation as is necessary to
enable such Person to express an informed opinion
as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the
opinion of each such Person, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any
such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an
officer or officers of the Company stating that the
information with respect to such factual matters is in
the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute
document or instrument shall be deemed to have been
executed and/or delivered as of the date or dates
required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to
the contrary notwithstanding, if any such corrective
document or instrument indicates that action has been
taken by or at the request of the Company which could
not have been taken had the original document or
instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise
rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action
was a result of willful misconduct or bad faith.
Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefits of
this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand,
authorization, direction, notice, consent,
election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more
instruments of substantially similar tenor signed
by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting
of Holders duly called and held in accordance with
the provisions of Article Thirteen, or a
combination of such instruments and any such
record. Except as herein otherwise expressly
provided, such action shall become effective when
such instrument or instruments or record or both
are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such
instrument or instruments and any such record (and
the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of
execution of any such instrument or of a writing
appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section
901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders
shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution
by any Person of any such instrument or writing may
be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and
the Company deem sufficient. Where such execution
is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as
otherwise contemplated in clause (y) of the first
proviso to the definition of Outstanding) and
serial numbers of Securities held by any Person,
and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written
instruments shall have been delivered to the
Trustee with respect to the requisite percentage of
principal amount of Securities for the action
contemplated by such instruments, any such
instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or
all of such Securities by written notice by such
Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series, or any
Tranche thereof, authenticated and delivered after
any Act of Holders may, and shall if required by
the Trustee, bear a notation in form approved by
the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof,
so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act,
the Company may, at its option, by Board
Resolution, fix in advance a record date for the
determination of Holders entitled to give such
request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall
have no obligation to do so. If such a record date
is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may
be given before or after such record date, but only
the Holders of record at the close of business on
the record date shall be deemed to be Holders for
the purposes of (i) determining whether Holders of
the requisite proportion of the Outstanding
Securities have authorized or agreed or consented
to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be
computed as of the record date or (ii) determining
which Holders may revoke any such Act
(notwithstanding Section 104(e)).
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company, or the
Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and delivered
personally to an officer or other responsible employee
of the addressee, or transmitted by facsimile
transmission, telex or other direct written electronic
means to such telephone number or other electronic
communications address as the parties hereto shall from
time to time designate, or transmitted by registered
mail, charges prepaid, to the applicable address set
opposite such party's name below or to such other
address as either party hereto may from time to time
designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Mississippi Power & Light Company
P.O. Box 1640
Jackson, Mississippi 39215-1640
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be
impracticable to give such notice to Holders by mail,
then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient no
tification 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, the
Holders, and so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of ________, except to the extent that the law
of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture
or of the Securities other than a provision in
Securities of any series, or any Tranche thereof, or in
the indenture supplemental hereto, 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
such series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which,
pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without
specific identification) to whom interest on
Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if
other than the Persons in whose names such
Securities (or one or more Predecessor Securities)
are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the
principal of the Securities of such series or any
Tranche thereof, is payable or any formulary or
other method or other means by which such date or
dates shall be determined, by reference to an index
or other fact or event ascertainable outside 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; the right of the Company, if any, to extend
the interest payment periods and the duration of
any such extension as contemplated by Section 312;
and the basis of computation of interest, if other
than as provided in Section 310;
(f) the place or places at which or
methods by which (1) the principal of and premium,
if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable,
(2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected,
(3) exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices
and demands to or upon the Company in respect of
the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the
Security Registrar and any Paying Agent or Agents
for such series or Tranche; and, if such is the
case, and if acceptable to the Trustee, that the
principal of such Securities shall be payable
without the 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 premium, if any, and interest,
if any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than in
Dollars);
(k) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or
periods within which and the terms and conditions
upon which, such election may be made;
(l) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company
or a Holder thereof, in securities or other
property, the type and amount of such securities or
other property, or the formulary or other method or
other means by which such amount shall be
determined, and the period or periods within which,
and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable
outside this Indenture, the manner in which such
amounts shall be determined (to the extent not
established pursuant to clause (e) of this
paragraph);
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition
to those specified in Section 801, with respect to
the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof,
in addition to those set forth in Article Six 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.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment
to Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series subject
to a Periodic Offering, the indenture supplemental
hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case
may be, may provide general terms or parameters for
Securities of such series and provide either that the
specific terms of Securities of such series, or any
Tranche thereof, shall be specified in a Company Order
or that such terms shall be determined by the Company or
its agents in accordance with procedures specified in a
Company Order as contemplated by the clause (b) of
Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities of each series shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, the Securities shall be executed on
behalf of the Company by an Authorized Officer and may
have the corporate seal of the Company affixed thereto
or reproduced thereon attested by any other Authorized
Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers of the Company shall bind
the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or
did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments
establishing the form or forms and terms of such
series, as provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities and,
to the extent that the terms of such Securities
shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated
by Sections 201 and 301, either (i) establishing
such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying
procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures
may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant
to oral or electronic instructions from the Company
or any agent or agents thereof, which oral
instructions are to be promptly confirmed
electronically or in writing), in either case in
accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) the Securities of such series,
executed on behalf of the Company by an Authorized
Officer;
(d) an Opinion of Counsel to the effect
that:
(i) that the form or forms of
such Securities have been duly authorized by
the Company and have been established in
conformity with the provisions of this
Indenture;
(ii) that the terms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this 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 legal
ly 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 en
forcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall
be entitled to receive such Opinion of Counsel only once
at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all
Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above
Counsel may opine that:
(x) when the terms of such
Securities shall have been established
pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time
by a Company Order or Orders, all as
contemplated by and in accordance with the
instrument or instruments delivered pursuant
to clause (a) above, such terms will have been
duly authorized by the Company and will have
been established in conformity with the
provisions of this Indenture; and
(y) such Securities, when
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company
Order or Orders or specified procedures
referred to in paragraph (x) above and issued
and delivered by the Company in the manner and
subject to any conditions specified in such
Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid
and legally binding obligations of the
Company, entitled to the benefits provided by
the Indenture, and enforceable in accordance
with their terms, subject, as to enforcement,
to laws relating to or affecting generally the
enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency
laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law).
With respect to Securities of a series subject
to a Periodic Offering, the Trustee may conclusively
rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and other documents
delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless
and until such opinion or other documents have been
superseded or revoked or expire by their terms. In
connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or
orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required
to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, each Security shall be dated the
date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, or
any Tranche thereof, no Security shall be entitled to
any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee
or its agent by manual signature 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
Officer's Certificate or 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 denominations and of
like tenor and aggregate principal amount, upon surren
der of the Securities to be exchanged at any such office
or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities delivered upon any registration
of transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so
required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to
the Company, the Trustee or the Security Registrar, as
the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series, or
any Tranche thereof, no service charge shall be made for
any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may
be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute
or to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche
thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying the
serial numbers of the Securities of such series or
Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner
of such Security, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security
of the same series and Tranche, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any
such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such
interest.
Subject to Section 312, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make
payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a date (herein called a
"Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of
such series and the date of the proposed payment,
and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggre
gate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satis
factory to the Trustee for such deposit prior to
the date of the proposed payment, such money when
deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record
Date and, in the name and at the expense of the
Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Securities
of such series at the address of such Holder as it
appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such
series (or their respective Predecessor Securities)
are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with
the requirements of any securities exchange on
which such Securities may be listed, and upon such
notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose
name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and,
if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall
be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Security
Registrar shall be disposed of in accordance with a
Company Order delivered to the Security Registrar and
the Trustee, and the Security Registrar shall promptly
deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled
Securities be returned to it. The Security Registrar
shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of
the actual number of days elapsed within any month in
relation to the deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series,
or any Tranche thereof, denominated in any currency
other than Dollars or in a composite currency (the "Re
quired 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, if any, or
interest, if any, 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 Cur
rency, 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 lia
ble for any shortfall or delinquency in the full amount
of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful
misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, or Tranches thereof, if so specified as
contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such
Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated
by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture or (b)
pursuant to an election of the Company which is subject
to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with
an Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series,
or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected
by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously
called for redemption, by such method as shall be
provided for any particular series or Tranche, or, in
the absence of any such provision, by such method of
random selection as the Security Registrar shall deem
fair and appropriate and which may, in any case, provide
for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of
such series or Tranche or any integral multiple thereof)
of the principal amount of Securities of such series or
Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an
Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such
offer was made shall have been tendered to the Company
for such purchase, the Security Registrar, if so
directed by Company Order, shall select for redemption
all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of
any series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount of
any Security to be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such
Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
unless it shall have been specified as contemplated
by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking
or other fund, if such is the case, and
(g) such other matters as the Company
shall deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been
paid in accordance with Section 701, such notice may
state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so
received such notice shall be of no force or effect and
the Company shall not be required to redeem such
Securities. In the event that such notice of redemption
contains such a condition and such money is not so
received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that
such money was not so received and such redemption was
not required to be made, and the Paying Agent or Agents
for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon
such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if
so specified as contemplated by Section 301 with respect
to such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the
terms of such Security and subject to the provisions of
Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any
authorized denomination requested by such Holder and of
like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of the
Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series,
or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms
of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of
any series, or any Tranche thereof, the cash amount of
any 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
sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it
so to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and
deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the
payment of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any
failure by the Company (or any other obligor upon
such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance
of any 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, if any, has become due and
payable shall be paid to the Company on Company Request,
or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge,
the Holder of such Security shall, as an unsecured
general creditor and not as a Holder of an Outstanding
Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying
Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to
be mailed, on one occasion only, notice to such Holder
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed balance of
such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be done
all things necessary to preserve and keep in full force
and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause
(or, with respect to property owned in common with
others, make reasonable effort to cause) to be made all
necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, in the judgment of the
Company, may be necessary so that the business carried
on in connection therewith may be properly conducted;
provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any
of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its
business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than __________________ in each
year, commencing _______________, the Company shall
deliver to the Trustee an Officer's Certificate which
need not comply with Section 102, executed by the
principal executive officer, the principal financial
officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice
under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular
instance to comply with any term, provision or condition
set forth in (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated
by Section 301 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 Section 602 or such additional covenant or
restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such
compliance in such instance or generally waive
compliance with such term, provision or condition and
(b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of at least a
majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and,
until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged,
if there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior
to the Maturity of such Securities or portions
thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or
other prepayment thereof at the option of the
issuer thereof, the principal of and the interest
on which when due, without any regard to
reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which
shall be sufficient,
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of
any series or Tranche, such Securities or portions
thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable
authority shall have been given by the Company to the
Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that
the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have
been made prior to the Maturity of such
Securities, a Company Order stating that the
money and Eligible Obligations deposited in
accordance with this Section shall be held in
trust, as provided in Section 703;
(y) if Eligible Obligations
shall have been deposited, an Opinion of
Counsel that the obligations so deposited
constitute Eligible Obligations and do not
contain provisions permitting the redemption
or other prepayment at the option of the
issuer thereof, and an opinion of an
independent public accountant of nationally
recognized standing, selected by the Company,
to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have
been made prior to the Maturity of such
Securities, an Officer's Certificate stating
the Company's intention that, upon delivery of
such Officer's Certificate, its indebtedness
in respect of such Securities or portions
thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's
Certificate specified in clause (z), if required shall
not have been delivered, such Securities or portions
thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of
such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture
or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and
603) or any other covenants made in respect of such
Securities or portions thereof as contemplated by
Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall not
be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be
entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series, or any Tranche thereof,
is to be provided for in the manner and with the effect
provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities
of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this Indenture,
and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not
mature and are not to be redeemed within the sixty (60)
day period commencing with the date of the deposit of
moneys or Eligible Obligations, as aforesaid, the
Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption
with respect to such Securities, to the Holders of such
Securities to the effect that such deposit has been made
and the effect thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this Indenture,
as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections
304, 305, 306, 404, 503 (as to notice of redemption),
602, 603, 907 and 915 and this Article Seven shall
survive.
The Company shall pay, and shall indemnify the
Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge
imposed on or assessed against such Eligible Obligations
or the principal or interest received in respect of such
Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes,
to have been created as a result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph),
the Trustee or any Paying Agent, as the case may be,
shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it
as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any
satisfaction and discharge of the Company's indebtedness
in respect thereof shall retroactively be deemed not to
have been effected, and such Security shall be deemed to
remain Outstanding and (b) any satisfaction and
discharge of the Company's indebtedness in respect of
any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request
cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously
deemed to have been paid for purposes of this Indenture,
shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively
not to have been satisfied and discharged, as aforesaid,
and to remain in full force and effect, and the Company
shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and
acknowledge the same.
Notwithstanding the satisfaction and discharge
of this Indenture as aforesaid, the obligations of the
Company and the Trustee under Sections 304, 305, 306,
404, 503 (as to notice of redemption), 602, 603, 907 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee shall
assign, transfer and turn over to the Company, subject
to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee
for the benefit of the Holders of the Securities other
than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or
interest payments on any such Eligible Obligations,
shall be withdrawn or used for any purpose other than,
and shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any,
on the Securities or portions of principal amount there
of 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 sixty (60) days
after the same becomes due and payable (whether or
not payment is prohibited by the provisions of
Article Fifteen hereof); provided, however, that a
valid extension of the interest payment period by
the Company as contemplated in Section 312 of this
Indenture shall not constitute a failure to pay
interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
when due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen
hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or
more series of Securities other than such series)
for a period of 60 days after there has been given,
by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by
the Holders of at least 33% in principal amount of
the Outstanding Securities of such series, a
written notice specifying such default or breach
and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series
not less than the principal amount of Securities
the Holders of which gave such notice, as the case
may be, shall agree in writing to an extension of
such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of
such series, as the case may be, shall be deemed to
have agreed to an extension of such period if
corrective action is initiated by the Company
within such period and is being diligently pursued;
or
(d) the entry by a court having
jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree
or order adjudging the Company a bankrupt or in
solvent, or approving as properly filed a petition
by one or more Persons other than the Company seek
ing 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 appli
cable Federal or State bankruptcy, insolvency, reor
ganization 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 reorga
nization 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 immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders),
and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount)
shall become immediately due and payable (provided that
the payment of principal of such Securities shall remain
subordinated to the extent provided in Article Fifteen
hereof); provided, however, that if an Event of Default
shall have occurred and be continuing with respect to
more than one series of Securities, the Trustee or the
Holders of not less than 33% in aggregate principal
amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of
acceleration, and not the Holders of the Securities of
any one of such series.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on
all Securities of such series;
(2) the principal of and
premium, if any, on any Securities of such
series which have become due otherwise than by
such declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment
of such interest is lawful, interest upon
overdue interest at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the
Trustee under Section 907;
and
(b) any other Event or Events of Default
with respect to Securities of such series, other
than the non-payment of the principal of Securities
of such series which shall have become due solely
by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premi
um, if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same
against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the
property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper
remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the
whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or
other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or on the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee with respect to a
particular series of Securities pursuant to this Article
shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts
then due and unpaid upon the Securities for
principal of and premium, if any, and interest, if
any, in respect of which or for the benefit of
which such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal, premium, if any, and
interest, if any, respectively; and
Third: To the payment of any surplus
then remaining to the Company, or to whomever may
be lawfully entitled thereto.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute
any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously
given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class, shall have
made written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the
Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808.Unconditional Right of Holders
to Receive Principal
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such
Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy here
under, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right
or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority
in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class,
shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in
conflict with any rule of law or with this
Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity
would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other
action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the
Securities of such series waive any past default
hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of
or premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or
provision hereof which under Section 1202 cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease
to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Company,
to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in aggregate principal
amount of the Outstanding Securities of all series in
respect of which such suit may be brought, considered as
one class, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on
or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no
such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an
Event of Default with respect to Securities of any
series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
(2) in the absence of bad
faith on its part, the Trustee may, with
respect to Securities of such series,
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or
opinions furnished to the Trustee and
conforming to the requirements of this
Indenture; but in the case of any such
certificates or opinions which by any
provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with
respect to Securities of any series shall have
occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such
series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall
be construed to relieve the Trustee from liability
for its own negligent action, its own negligent
failure to act, or its own wilful misconduct,
except that
(1) this subsection shall not
be construed to limit the effect of subsection
(a) of this Section;
(2) the Trustee shall not be
liable for any error of judgment made in good
faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be
liable with respect to any action taken or
omitted to be taken by it in good faith in
accordance with the direction of the Holders
of a majority in principal amount of the
Outstanding Securities of any one or more
series, as provided herein, relating to the
time, method and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust or power
conferred upon the Trustee, under this
Indenture with respect to the Securities of
such series; and
(4) no provision of this
Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any
financial liability in the performance of any
of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have
reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture
relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series
to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured
or waived; provided, however, that in the case of any
default of the character specified in Section 801(c), no
such notice to Holders shall be given until at least 75
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would
become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and
to the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, or
as otherwise expressly provided herein, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of
this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the
Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to
make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to
examine, during normal business hours, the books,
records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due
care by it hereunder; and
(h) except as otherwise provided in
Section 801, the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer
of the Trustee shall have actual knowledge of the
Event of Default or (2) written notice of such
Event of Default shall have been given to the
Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company 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 hereunder or the performance
of its duties hereunder, including the reasonable
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder, except to the extent any such loss,
liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust
under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided,
however, that the negligence, wilful misconduct or bad
faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the
manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the
Trust Indenture Act and to the extent permitted thereby,
the Trustee, in its capacity as trustee in respect of
the Securities of any series, shall not be deemed to
have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other
series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee
hereunder which shall be
(a) a corporation organized and doing
business under the laws of the United States, any
State or Territory thereof or the District of
Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by
the Commission by rule, regulation or order upon
application, a corporation or other Person
organized and doing business under the laws of a
foreign government, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the
Dollar equivalent of the applicable foreign
currency and subject to supervision or examination
by authority of such foreign government or a
political subdivision thereof substantially
equivalent to supervision or examination applicable
to United States institutional trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corpora
tion publishes reports of condition at least annually,
pursuant to law or to the requirements of such
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign
immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance
with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required
by Section 911 shall not have been delivered to the
Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to
comply with Section 908 after written request
therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months,
or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapa
ble 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 re
habilitation, 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 succes
sor 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 shall
become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the re
quest 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 retir
ing 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 provi
sions 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 sup
plemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts here
under separate and apart from any trust or trusts
hereunder administered by any other such Trustee;
and upon the execution and delivery of such
supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to
the extent provided therein and each such successor
Trustee, without any further act shall become
vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee,
such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver
to such successor Trustee all property and money
held by such retiring Trustee hereunder with
respect to the Securities of that or those series
to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any instruments
which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred
to in subsection (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept
its appointment unless at the time of such
acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all
or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the
execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenti
cated 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 or such obligor 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 or such obligor 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 all or substantially all of
the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the
execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each
Authenticating Agent from time to time reasonable
compensation for its services under this Section.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the
Securities of one or more series, or any Tranche
thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By___________________
___
As Authenticating
Agent
By___________________
___
Authorized Officer
If all of the Securities of a series may not
be originally issued at one time, and if the Trustee
does not have an office capable of authenticating
Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall
appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable
to the Trustee, an Authenticating Agent having an office
in a Place of Payment designated by the Company with
respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________,
and at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve
such information and similar information received by it
in any other capacity and afford to the Holders access
to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the
Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Trustee shall be
the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than _____________ in each year,
commencing _______________, the Trustee shall transmit
to the Holders and the Commission a report, dated as of
the next preceding _______________, with respect to any
events and other matters described in Section 313(a) of
the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders and the Commission, and
the Company shall file with the Trustee within 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 per
formed or observed;
(b) immediately after giving effect to
such transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and
be continuing; and
(c) the Company shall have delivered to
the Trustee an Officer's Certificate and an Opinion
of Counsel, each stating that such consolidation,
merger, conveyance, or other transfer or lease and
such supplemental indenture comply with this
Article and that all conditions precedent herein
provided for relating to such transactions have
been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the properties
and assets of the Company substantially as an entirety
in accordance with Section 1101, the successor
corporation formed by such consolidation or into which
the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the
Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders, the
Company and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of
another Person to the Company and the assumption by
any such successor of the covenants of the Company
herein and in the Securities, all as provided in
Article Eleven; or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of
Default with respect to all or any series of
Securities Outstanding hereunder; or
(d) to change or eliminate any provision
of this Indenture or to add any new provision to
this Indenture; provided, however, that if such
change, elimination or addition shall adversely
affect the interests of the Holders of Securities
of any series or Tranche Outstanding on the date of
such indenture supplemental hereto in any material
respect, such change, elimination or addition shall
become effective with respect to such series or
Tranche only pursuant to the provisions of Section
1202 hereof or when no Security of such series or
Tranche remains Outstanding; or
(e) to provide collateral security for
the Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as contemplated
by Sections 201 and 301; or
(g) to provide for the authentication
and delivery of bearer securities and coupons
appertaining thereto representing interest, if any,
thereon and for the procedures for the
registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and
for any and all other matters incidental thereto;
or
(h) to evidence and provide for the
acceptance of appointment hereunder by a separate
or successor Trustee with respect to the Securities
of one or more series and to add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of
Section 911(b); or
(i) to provide for the procedures
required to permit the Company to utilize, at its
option, a non-certificated system of registration
for all, or any series or Tranche of, the Securi
ties; 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 or are contained herein to reflect any
provisions of the Trust Indenture Act as in
effect at such date, this Indenture shall be
deemed to have been amended to effect such
changes or elimination, and the Company 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 provi
sions to, or changing in any manner or eliminating any
of the provisions of, this Indenture; provided, however,
that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly
affected, considered as one class, shall be required;
and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities
of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities
of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no
such supplemental indenture shall:
(a) change the Stated Maturity of the
principal of, or any installment of principal of or
interest on (except as provided in Section 312
hereof), any Security, or reduce the principal
amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon)
or change the method of calculating such rate or
reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of
any 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 in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the
Holders of each Outstanding Security of such series
or Tranche, or
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, or any Tranche
thereof, or except to increase the percentages in
principal amount referred to in this Section or
such other Sections or to provide that other
provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each
Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to
require the consent of any Holder with respect to
changes in the references to "the Trustee" and
concomitant changes in this Section, or the
deletion of this proviso, in accordance with the
requirements of Sections 911(b) and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the
Holders of Securities of such series or Tranches with
respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or
Tranche.
It shall not be necessary for any Act of
Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such
Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall
be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution and delivery of any
supplemental indenture under this Article this Indenture
shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this In
denture 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
supplemental Board Resolution as contemplated by Section
301, and not in a supplemental indenture, additions to,
changes in or the elimination of any of such terms may
be effected by means of a supplemental Board Resolution
or supplemental 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 supplemental Officer's
Certificate shall be deemed to be a "supplemental
indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be
Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a
meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1301, to be
held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the
Company, at any other place. Notice of every such
meeting, setting forth the time and the place of
such meeting and in general terms the action
proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been
requested to call a meeting of the Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301,
by written request setting forth in reasonable
detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of
such series and Tranches in the amount above
specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The
City of New York, or in such other place as shall
be determined or approved by the Company, for such
meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection
(a) of this Section.
(c) Any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or
Tranches thereof, shall be valid without notice if
the Holders of all Outstanding Securities of such
series or Tranches are present in person or by
proxy and if representatives of the Company and the
Trustee are present, or if notice is waived in
writing before or after the meeting by the Holders
of all Outstanding Securities of such series, or
any Tranche or Tranches thereof, or by such of them
as are not present at the meeting in person or by
proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of
Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, a Person shall be (a) a
Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders
of Securities of any series or Tranche shall be the Per
sons 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 presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches
with respect to which such meeting shall have been
called, considered as one class; provided, however,
that, except as so limited, any resolution with respect
to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights
Conduct and Adjournment of
Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to
the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future
Holder of the Securities with respect to which it
was given unless and until specifically revoked by
the Holder or future Holder (except as provided in
Section 104(g)) of such Securities before being
voted.
(b) Notwithstanding any other provisions
of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the
appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates
and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the
holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in
Section 104. Such regulations may provide that
written instruments appointing proxies, regular on
their face, may be presumed valid and genuine
without the proof specified in Section 104 or other
proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called
by the Company or by Holders as provided in Section
1302(b), in which case the Company or the Holders
of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to
vote a majority in aggregate principal amount of
the Outstanding Securities of all series and
Tranches represented at the meeting, considered as
one class.
(d) At any meeting each Holder or proxy
shall be entitled to one vote for each $1,000
principal amount of Outstanding 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 ad
journed 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 Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if
any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture,
against any incorporator, stockholder, officer or
director, as such, past, present or future of the
Company or of any predecessor or successor corporation
(either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by
the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that
this Indenture and all the Securities are solely
corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor
or successor corporation, either directly or indirectly
through the Company or any predecessor or successor
corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any,
on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth
in this Article, in right of payment to the prior
payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series,
by its acceptance thereof, authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination
as provided in this Article, and appoints the Trustee
its attorney-in-fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or
bankruptcy proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect
of the Company or a substantial part of its property, or
of any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall
have occurred with respect to the payment of principal
of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall
have occurred a default (other than a default in the
payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument
under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity
thereof (with notice or lapse of time, or both), and
such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and
accrued interest on the Securities of any series shall
have been declared due and payable pursuant to Section
801 and such declaration shall not have been rescinded
and annulled as provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or
distribution of assets of, the Company of
any kind or character, whether in cash,
property or securities, to which any Holder
or the Trustee would be entitled except for
the provisions of this Article, shall be
paid or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time
after the 123rd day following the date of deposit of
cash or Eligible Obligations pursuant to Section 701
(provided all conditions set out in such Section shall
have been satisfied), the funds so deposited and any
interest thereon will not be subject to any rights of
holders of Senior Indebtedness including, without
limitation, those arising under this Article Fifteen;
provided that no event described in clauses (d) and (e)
of Section 801 with respect to the Company has occurred
during such 123-day period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment
to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater
extent than, the Securities are so subordinated as
provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its
property as an entirety, or substantially as an
entirety, to another corporation upon the terms and
conditions provided for in Article Eleven hereof shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1502 if
such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by
the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any
deferral, renewal, extension or refunding thereof) or
any other obligation as to which the provisions of this
Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a
default under clause (b) of Section 1502 if (i) the
Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have
been issued against the Company which is in full force
and effect and is not subject to further review,
including a judgment that has become final by reason of
the expiration of the time within which a party may seek
further appeal or review, or (B) in the event that a
judgment that is subject to further review or appeal has
been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and
a stay or execution shall have been obtained pending
such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to
have been paid in full unless the holders thereof shall
have received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment
in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or
securities of the Company applicable to the holders of
the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full; and such payments or
distributions of cash, property or securities received
by the Holders of the Securities, by reason of such
subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness
shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account
of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of
and interest on the Securities as and when the same
shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other
than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the
holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article,
the Trustee and the Holders shall be entitled to rely
upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any
Senior Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior Indebtedness
and interest and premium, if any, thereon shall first be
paid in full before any payment of principal or premium
or interest, if any, is made upon the Securities or
before any Securities can be acquired by the Company or
any sinking fund payment is made with respect to the
Securities (except that required sinking fund payments
may be reduced by Securities acquired before such
maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights
set forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent
as any other holder of Senior Indebtedness. Nothing in
this Article shall deprive the Trustee of any of its
rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee
shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment
of moneys to or by the Trustee unless and until the
Trustee shall have received written notice thereof from
the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt
of any such written notice, the Trustee shall be
entitled, subject to Section 901, in all respects to
assume that no such facts exist; provided, however,
that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may
become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary,
which may be received by it on or after such date;
provided, however, that no such application shall affect
the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may,
without affecting in any manner the subordination of the
payment of the principal of and premium, if any, and
interest, if any, on the Securities, at any time or from
time to time and in their absolute discretion, agree
with the Company to change the manner, place or terms of
payment, change or extend the time of payment of, or
renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver
of default thereunder, all without notice to or assent
from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or deliver to
the Holders or the Company or any other Person, money or
assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other
than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that
Sections 1507, 1508 and 1510 shall not apply to the
Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise
charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
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.
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
___
[SEAL]
ATTEST:
_______________________
____________________________
__, Trustee
By:_________________________
________
[SEAL]
ATTEST:
_______________________
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, ____, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Mississippi Power & Light
Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, ____, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of ______________________________, one
of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-15
No._______________
Cusip No.__________
[FACE OF SUBORDINATED DEBENTURE]
Mississippi Power & Light Company
____% Quarterly Income Debt Securities
Mississippi Power & Light Company, a corporation duly
organized and existing under the laws of the State of Mississippi
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ____________________________________, or
registered assigns, the principal sum of ____________________
Dollars on ______________, and to pay interest on said principal
sum from, and including, ____________________, to and including
the first Interest Payment Date, and thereafter from, and
excluding, the last Interest Payment Date through which interest
has been paid or duly provided for, in equal quarterly
installments, in arrears, on ________, ________, ________ and
________ of each year, commencing ________________ at the rate of
____% per annum until the principal hereof is paid or made
available for payment. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months and for any period shorter than a
full calendar month, on the basis of the actual number of days
elapsed in such period. In the event that any Interest Payment
Date is not a Business Day, then payment of interest payable on
such Interest Payment Date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the close of business
15 calendar days next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan,
The City and State of New York, in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts, provided,
however, that at the option of the Company, interest on this
Security may be paid by check mailed to the address of the person
entitled thereto, as such address shall appear on the Security
Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument to
be duly executed.
Mississippi Power & Light Company
By:
ATTEST:
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
By:
Authorized Signatory
<PAGE>
[REVERSE OF SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
__________________, as amended (herein called the "Indenture",
which term shall have the meaning assigned to it in such
instrument), between the Company and
_____________________________, as Trustee (herein called the
Trustee, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Resolutions and Officer's Certificate filed with
the Trustee on ____________________, creating the series
designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal
amount to $__________.
REDEMPTION PROVISIONS WILL BE INSERTED HERE
[In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for
the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness,
and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such Holder upon said
provisions.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of such series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences or of the
Securities of all series affected, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
The Company shall have the right at any time and from time to
time during the term of the Securities of this series, so long as
an Event of Default has not occurred and is not continuing, to
extend the interest payment period of such Securities to a period
not exceeding 20 consecutive quarterly interest payment periods
(the "Extended Interest Payment Period"), on the last Business
Day of which Extended Interest Payment Period, the Company shall
pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Securities of this series
to the extent that payment of such interest is enforceable under
applicable law); provided that, during such Extended Interest
Payment Period, the Company shall not declare or pay any dividend
on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its preferred stock
(regardless of par value), preference stock or common stock,
except that the Company may make mandatory sinking fund payments
with respect to its __________________________________________.
The Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
Prior to the termination of any such Extended Interest Payment
Period, the Company may further extend the interest payment
period, provided that such Extended Interest Payment Period,
together with all such previous and further extensions thereof,
may not exceed 20 consecutive quarterly interest payment periods
or extend beyond the Stated Maturity of the Securities of this
series. Upon the termination of any such Extended Interest
Payment Period and upon the payment of all amounts then due, the
Company may elect another Extended Interest Payment Period. No
interest during the Extended Interest Payment Period, except on
the last Business Day of such Extended Interest Payment Period,
shall be due and payable.
The Securities of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor and of authorized
denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is
registered as the absolute owner hereof for all purposes (except
as otherwise provided in the Indenture), whether or not this
Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT A-16
__________________________________________
MISSISSIPPI POWER & LIGHT COMPANY
TO
_____________________
Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of ______________, 1995
__________________________________________
TABLE OF CONTENTS
PARTIES 1
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Additional Interest 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 3
Company 3
Company Request or Company Order 3
Corporate Trust Office 3
corporation 3
Defaulted Interest 3
Dollar or $ 3
Event of Default 3
Governmental Authority 3
Government Obligations 3
Guarantee 4
Holder 4
Indenture 4
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 5
Person 5
Place of Payment 5
Predecessor Security 5
Preferred Securities 6
Redemption Date 6
Redemption Price 6
Regular Record Date 6
Responsible Officer 6
Securities 6
Security Register and Security Registrar 6
Senior Indebtedness 6
Special Record Date 6
Stated Maturity 6
Trust 7
Trust Agreement 7
Trust Indenture Act 7
Trustee 7
United States 7
SECTION 102. Compliance Certificates and Opinions 7
SECTION 103. Form of Documents Delivered to
Trustee 8
SECTION 104. Acts of Holders 9
SECTION 105. Notices, etc. to Trustee and Company 10
SECTION 106. Notice to Holders of Securities;
Waiver 11
SECTION 107. Conflict with Trust Indenture Act 12
SECTION 108. Effect of Headings and Table of
Contents 12
SECTION 109. Successors and Assigns 12
SECTION 110. Separability Clause 12
SECTION 111. Benefits of Indenture 12
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 13
ARTICLE TWO 13
Security Forms 13
SECTION 201. Forms Generally 13
SECTION 202. Form of Trustee's Certificate of
Authentication 14
ARTICLE THREE 14
The Securities 14
SECTION 301. Amount Unlimited; Issuable in Series 14
SECTION 302. Denominations 18
SECTION 303. Execution, Authentication, Delivery
and Dating 18
SECTION 304. Temporary Securities 19
SECTION 305. Registration, Registration of
Transfer and Exchange 20
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 21
SECTION 307. Payment of Interest; Interest Rights
Preserved 22
SECTION 308. Persons Deemed Owners 23
SECTION 309. Cancellation by Security Registrar 23
SECTION 310. Computation of Interest 24
SECTION 311. Extension of Interest Payment 24
SECTION 312. Additional Interest. 24
ARTICLE FOUR 25
Redemption of Securities 25
SECTION 401. Applicability of Article 25
SECTION 402. Election to Redeem; Notice to
Trustee 25
SECTION 403. Selection of Securities to Be
Redeemed 25
SECTION 404. Notice of Redemption 26
SECTION 405. Securities Payable on Redemption
Date 27
SECTION 406. Securities Redeemed in Part 27
ARTICLE FIVE 28
Sinking Funds 28
SECTION 501. Applicability of Article 28
SECTION 502. Satisfaction of Sinking Fund
Payments with Securities 28
SECTION 503. Redemption of Securities for Sinking
Fund 28
ARTICLE SIX 29
Covenants 29
SECTION 601. Payment of Principal, Premium and
Interest 29
SECTION 602. Maintenance of Office or Agency 29
SECTION 603. Money for Securities Payments to Be
Held in Trust 30
SECTION 604. Corporate Existence 31
SECTION 605. Maintenance of Properties 31
SECTION 606. Annual Officer's Certificate as to
Compliance. 32
SECTION 607. Waiver of Certain Covenants 32
SECTION 608. Restriction on Payment of Dividends 32
SECTION 609. Maintenance of Trust Existence 33
SECTION 610. Rights of Holders of Preferred
Securities 33
ARTICLE SEVEN 34
Satisfaction and Discharge 34
SECTION 701. Satisfaction and Discharge of
Securities 34
SECTION 702. Satisfaction and Discharge of
Indenture 36
SECTION 703. Application of Trust Money 37
ARTICLE EIGHT 37
Events of Default; Remedies 37
SECTION 801. Events of Default 37
SECTION 802. Acceleration of Maturity; Rescission
and Annulment 39
SECTION 803. Collection of Indebtedness and Suits
for Enforcement by Trustee 40
SECTION 804. Trustee May File Proofs of Claim 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 41
SECTION 806. Application of Money Collected 42
SECTION 807. Limitation on Suits 42
SECTION 808. Unconditional Right of Holders to
Receive Principal,
Premium and Interest 43
SECTION 809. Restoration of Rights and Remedies 43
SECTION 810. Rights and Remedies Cumulative 43
SECTION 811. Delay or Omission Not Waiver 43
SECTION 812. Control by Holders of Securities 44
SECTION 813. Waiver of Past Defaults 44
SECTION 814. Undertaking for Costs 45
SECTION 815. Waiver of Stay or Extension Laws 45
ARTICLE NINE 45
The Trustee 45
SECTION 901. Certain Duties and Responsibilities 45
SECTION 902. Notice of Defaults 46
SECTION 903. Certain Rights of Trustee 46
SECTION 904. Not Responsible for Recitals or
Issuance of Securities 47
SECTION 905. May Hold Securities 48
SECTION 906. Money Held in Trust 48
SECTION 907. Compensation and Reimbursement 48
SECTION 908. Disqualification; Conflicting
Interests. 49
SECTION 909. Corporate Trustee Required;
Eligibility 49
SECTION 910. Resignation and Removal; Appointment
of Successor 50
SECTION 911. Acceptance of Appointment by
Successor 52
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 53
SECTION 913. Preferential Collection of Claims
Against Company 53
SECTION 914. Co-trustees and Separate Trustees. 54
SECTION 915. Appointment of Authenticating Agent 55
ARTICLE TEN 57
Holders' Lists and Reports by Trustee and Company 57
SECTION 1001. Lists of Holders 57
SECTION 1002. Reports by Trustee and Company 57
ARTICLE ELEVEN 57
Consolidation, Merger, Conveyance or Other Transfer 57
SECTION 1101. Company May Consolidate, etc., Only
on Certain Terms 57
SECTION 1102. Successor Corporation Substituted 58
ARTICLE TWELVE 58
Supplemental Indentures 58
SECTION 1201. Supplemental Indentures Without
Consent of Holders 58
SECTION 1202. Supplemental Indentures With
Consent of Holders 60
SECTION 1203. Execution of Supplemental
Indentures 62
SECTION 1204. Effect of Supplemental Indentures 62
SECTION 1205. Conformity With Trust Indenture Act 62
SECTION 1206. Reference in Securities to
Supplemental Indentures 62
SECTION 1207. Modification Without Supplemental
Indenture 62
ARTICLE THIRTEEN 63
Meetings of Holders; Action Without Meeting 63
SECTION 1301. Purposes for Which Meetings May Be
Called 63
SECTION 1302. Call, Notice and Place of Meetings 63
SECTION 1303. Persons Entitled to Vote at
Meetings 64
SECTION 1304. Quorum; Action 64
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of Meetings 65
SECTION 1306. Counting Votes and Recording Action
of Meetings 66
SECTION 1307. Action Without Meeting 66
ARTICLE FOURTEEN 66
Immunity of Incorporators, Stockholders, Officers and
Directors 66
SECTION 1401. Liability Solely Corporate 67
ARTICLE FIFTEEN 67
Subordination of Securities 67
SECTION 1501. Securities Subordinate to Senior
Indebtedness. 67
SECTION 1502. Payment Over of Proceeds of
Securities 68
SECTION 1503. Disputes with Holders of Certain
Senior Indebtedness 70
SECTION 1504. Subrogation 70
SECTION 1505. Obligation of the Company
Unconditional 70
SECTION 1506. Priority of Senior Indebtedness
Upon Maturity 71
SECTION 1507. Trustee as Holder of Senior
Indebtedness 71
SECTION 1508. Notice to Trustee to Effectuate
Subordination 71
SECTION 1509. Modification, Extension, etc. of
Senior Indebtedness 72
SECTION 1510. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness 72
SECTION 1511. Paying Agents Other Than the
Trustee 72
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 72
SECTION 1513. Effect of Subordination Provisions;
Termination 73
Testimonium 74
Signatures and Seals 74
Acknowledgements 75
MISSISSIPPI POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________________________
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of _________________, between
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company"), having its
principal office at P.O. Box 1640, Jackson, Mississippi
39215-1640, and _______________________, a corporation of
the State of _____________, having its principal corporate
trust office at ____________________________________, as
Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to
be issued in one or more series as contemplated herein; and
all acts necessary to make this Indenture a valid agreement
of the Company have been performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to
them therein;
(c) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the
date of such computation or, at the election of the
Company from time to time, at the date of the execution
and delivery of this Indenture; provided, however, that
in determining generally accepted accounting principles
applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or regulation
of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the
Company; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Additional Interest" has the meaning specified in
Section 312.
"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 through one or more intermediaries,
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 pursuant to Section 915 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 officer or agent of the
Company duly authorized by the Board of Directors to act in
respect of matters relating to this Indenture.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as
may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended, or, if at
any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act,
then the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor
Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at _________________________________.
"corporation" means a corporation, association,
company, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"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.
"Event of Default" has the meaning specified in
Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any
department, agency, authority or other instrumentality of
any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or
obligations the principal of and interest on which
are unconditionally guaranteed by, the United
States and entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct ownership
interest in obligations described in clause (a)
above or in any specific interest or principal
payments due in respect thereof; provided, however,
that the custodian of such obligations or specific
interest or principal payments shall be a bank or
trust company (which may include the Trustee or any
Paying Agent) subject to Federal or state
supervision or examination with a combined capital
and surplus of at least $50,000,000; and provided,
further, that except as may be otherwise required
by law, such custodian shall be obligated to pay to
the holders of such certificates, depositary
receipts or other instruments the full amount
received by such custodian in respect of such
obligations or specific payments and shall not be
permitted to make any deduction therefrom.
"Guarantee" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"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 a particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security
or an installment of principal becomes due and payable
as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"Officer's Certificate" means a certificate signed
by an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by
the Trustee or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid
in accordance with Section 701; and
(c) Securities which have been paid
pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been presented to
the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not
the Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, 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,
Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or
of such other obligor (unless the Company, such
Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding
Securities of each such series, as the case may be,
determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be pro
tected in relying upon any such request, demand, authori
zation, 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 re
garded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securi
ties or any Affiliate of the Company or of such other
obligor; and 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.
"Person" means any individual, corporation,
partnership, joint venture, trust or unincorporated
organization or any Governmental Authority.
"Place of Payment", when used with respect to the
Securities of any series, 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 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.
"Preferred Securities" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by the Trustee to administer its corporate trust
matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including
both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment of
money relating to any lease which is capitalized on the
consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time, or
evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such
indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the
Company unless, in the case of any particular
indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides
that such indebtedness, renewal, extension or refunding
is not superior in right of payment to or is pari passu
with the Securities; provided that the Company's
obligations under the Guaranty shall not be deemed to be
Senior Indebtedness.
"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 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).
"Trust" means ________________ Capital I, a
statutory business trust formed under the laws of the
State of Delaware, or any other Trust designated
pursuant to Section 301 hereof or any permitted
successor under the Trust Agreement pertaining to such
Trust.
"Trust Agreement" means the Amended and Restated
Trust Agreement, dated as of __________________,
relating to ____________________ Capital I or an Amended
and Restated Trust Agreement relating to a Trust
designated pursuant to Section 301 hereof, in each case,
among the Company, as Depositor, and the trustees named
therein as they may be amended from time to time.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, or any successor statute,
as in effect at such time.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this Indenture until a
successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"United States" means the United States of America,
its Territories, its possessions and other areas subject
to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the
Company to the Trustee to take any action under any
provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an
Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent)
have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with,
except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing
such certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature
and scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of
each such Person, such Person has made such
examination or investigation as is necessary to
enable such Person to express an informed opinion
as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the
opinion of each such Person, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such Person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any
such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an
officer or officers of the Company stating that the
information with respect to such factual matters is in
the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted
therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute
document or instrument shall be deemed to have been
executed and/or delivered as of the date or dates
required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to
the contrary notwithstanding, if any such corrective
document or instrument indicates that action has been
taken by or at the request of the Company which could
not have been taken had the original document or
instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise
rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action
was a result of willful misconduct or bad faith.
Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefits of
this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand,
authorization, direction, notice, consent,
election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more
instruments of substantially similar tenor signed
by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting
of Holders duly called and held in accordance with
the provisions of Article Thirteen, or a
combination of such instruments and any such
record. Except as herein otherwise expressly
provided, such action shall become effective when
such instrument or instruments or record or both
are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such
instrument or instruments and any such record (and
the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of
execution of any such instrument or of a writing
appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section
901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders
shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution
by any Person of any such instrument or writing may
be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or
other officer authorized by law to take
acknowledgments of deeds, certifying that the
individual signing such instrument or writing
acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and
the Company deem sufficient. Where such execution
is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial
numbers of Securities held by any Person, and the
date of holding the same, shall be proved by the
Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every
Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is
made upon such Security.
(e) Until such time as written
instruments shall have been delivered to the
Trustee with respect to the requisite percentage of
principal amount of Securities for the action
contemplated by such instruments, any such
instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or
all of such Securities by written notice by such
Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series
authenticated and delivered after any Act of
Holders may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as
to any action taken by such Act of Holders. If the
Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of
the Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act,
the Company may, at its option, fix in advance a
record date for the determination of Holders
entitled to give such request, demand,
authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no
obligation to do so. If such a record date is
fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may
be given before or after such record date, but only
the Holders of record at the close of business on
the record date shall be deemed to be Holders for
the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities
have authorized or agreed or consented to such
request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of
the record date.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, election, waiver or Act of Holders or
other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company, or the
Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and delivered
personally to an officer or other responsible employee
of the addressee, or transmitted by facsimile
transmission, telex or other direct written electronic
means to such telephone number or other electronic
communications address as the parties hereto shall from
time to time designate, or transmitted by certified or
registered mail, charges prepaid, to the applicable
address set opposite such party's name below or to such
other address as either party hereto may from time to
time designate:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
Mississippi Power & Light Company
P.O. Box 1640
Jackson, Mississippi 39215-1640
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be
deemed to have been made, given, furnished and filed if
personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given, and
shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as
it appears in the Security Register, not later than the
latest date, if any, and not earlier than the earliest
date, if any, 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 no
tification 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 and Trustee shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other than
the parties hereto, their successors hereunder, the
Holders and, so long as the notice described in Section
1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture; provided,
however, that for so long as any Preferred Securities
remain outstanding, the holders of such Preferred
Securities, subject to certain limitations set forth in
this Indenture, may enforce the Company's obligations
hereunder directly against the Company as third party
beneficiaries of this Indenture without first proceeding
against the Trust issuing such Preferred Securities.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of ________________, except to the extent that
the law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture
or of the Securities other than a provision in
Securities of any series, or in the indenture
supplemental hereto, Board Resolution or Officer's
Certificate which establishes the terms of the
Securities of such series, 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, except that if such Business Day
is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day,
in each case with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case
may be, 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 Signatory
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; provided, however, that all
Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a
Trust of the proceeds of the issuance of Preferred
Securities of such Trust plus the amount deposited by
the Company with such Trust from time to time.
The Securities may be issued in one or more
series. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution:
(a) the title of the Securities of such
series (which shall distinguish the Securities of
such series from Securities of all other series);
(b) any limit upon the aggregate
principal amount of the Securities of such series
which may be authenticated and delivered under this
Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406
or 1206 and except for any Securities which,
pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without
specific identification) to whom interest on
Securities of such series 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 is
payable or any formulary or other method or other
means by which such date or dates shall be
determined, by reference or otherwise (without
regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the
Securities of such series shall bear interest, if
any (including the rate or rates at which overdue
principal shall bear interest, if different from
the rate or rates at which such Securities shall
bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any),
or any formulary or other method or other means by
which such rate or rates shall be determined, by
reference or otherwise; the date or dates from
which such interest shall accrue; the Interest
Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for
the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if
any, to extend the interest payment periods and the
duration of any such extension as contemplated by
Section 311; 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 shall be payable, (2) registration of
transfer of Securities of such series may be
effected, (3) exchanges of Securities of such
series may be effected and (4) notices and demands
to or upon the Company in respect of the Securities
of such series and this Indenture may be served;
the Security Registrar for such series; and if such
is the case, that the principal of such Securities
shall be payable without presentment or surrender
thereof;
(g) the period or periods within which,
or the date or dates on which, the price or prices
at which and the terms and conditions upon which
the Securities of such series 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, 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 pursuant to any sinking
fund or other mandatory redemption provisions or at
the option of a Holder thereof and the period or
periods within which or the date or dates on which,
the price or prices at which and the terms and
conditions upon which such Securities shall be
redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable
exceptions to the requirements of Section 404 in
the case of mandatory redemption or redemption at
the option of the Holder;
(i) the denominations in which
Securities of such series shall be issuable if
other than denominations of $25 and any integral
multiple thereof;
(j) the currency or currencies,
including composite currencies, in which payment of
the principal of and premium, if any, and interest,
if any, on the Securities of such series shall be
payable (if other than in Dollars);
(k) if the principal of or premium, if
any, or interest, if any, on the Securities of such
series 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, if any, on the Securities of such
series 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 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 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, in addition to those set
forth in Article Six;
(p) the terms, if any, pursuant to which
the Securities of such series 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 Government
Obligations in respect of the Securities of such
series 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 are
to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to
obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or
Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii)
any and all other matters incidental to such
Securities;
(s) if the Securities of such series 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 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 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;
(v) the designation of the Trust to
which Securities of such series are to be issued;
and
(w) any other terms of the Securities of
such series not inconsistent with the provisions of
this Indenture.
All Securities of any one series shall be
substantially identical, except as to principal amount
and date of issue and except as may be set forth in the
terms of such series as contemplated above. The
Securities of each series shall be subordinated in right
of payment to Senior Indebtedness as provided in Article
Fifteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
the Securities of each series shall be issuable in
denominations of $25 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,
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 or by the Secretary of the Company. The
signature of any or all of these officers on the Secu
rities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized Officers or the Secretary 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, establishing such terms;
(c) the Securities of such series,
executed on behalf of the Company by an Authorized
Officer;
(d) an Opinion of Counsel to the effect
that:
(i) the form or forms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this
Indenture;
(ii) the terms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this Inden
ture; and
(iii) such Securities, when
authenticated and delivered by the Trustee and
issued and delivered by the Company in the
manner and subject to any conditions specified
in such Opinion of Counsel, will have been
duly issued under this Indenture and will
constitute valid and legally binding obli
gations 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).
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 materially or
adversely 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,
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, no
Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of
authentication substantially in the form provided for
herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply
with Section 102 and need not be accompanied by an
Officer's Certificate or 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, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
evidenced by their execution of such Securities;
provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, after the preparation of definitive Securities
of such series, the temporary Securities of such series
shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series 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 for such exchange, the
Company shall, except as aforesaid, execute and the
Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove
provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered
hereunder.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect
to the Securities of each series, a register (all
registers kept in accordance with this Section being
collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the
registration of Securities of such series and the
registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register
for the Securities of each series on a consolidated
basis, and such Person is referred to herein, with
respect to such series, as the "Security Registrar."
Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an
office in which a register with respect to the
Securities of one or more series 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, upon surrender for registration of transfer of
any Security of such series at the office or agency of
the Company maintained pursuant to Section 602 in a
Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees,
one or more new Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, any Security of such series may be exchanged at
the option of the Holder, for one or more new Securities
of the same series, of authorized denominations and of
like tenor and aggregate principal amount, upon surren
der 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, no
service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute
or to provide for the registration of transfer of or the
exchange of (a) Securities of any series 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 called for redemption or (b)
any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
new Security of the same series, and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the
ownership of and the destruction, loss or theft of any
Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any
agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner
of such Security, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security
of the same series, and 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, interest on any Security which is payable, and
is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular
Record Date for such interest.
Subject to Section 311, any interest on any
Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make
payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a date (herein called a
"Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of
such series and the date of the proposed payment,
and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggre
gate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satis
factory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money
when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record
Date and, in the name and at the expense of the
Company, shall promptly cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Securities
of such series at the address of such Holder as it
appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such
series (or their respective Predecessor Securities)
are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with
the requirements of any securities exchange on
which such Securities may be listed, and upon such
notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the
absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any,
and (subject to Sections 305 and 307) interest, if any,
on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall, if
surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and,
if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall
be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Security
Registrar shall be disposed of in accordance with a
Company Order delivered to the Security Registrar and
the Trustee, and the Security Registrar shall promptly
deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled
Securities be returned to it. The Security Registrar
shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and for any period shorter than a full month, on
the basis of the actual number of days elapsed in such
period.
SECTION 311. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of one
or more series, if so specified as contemplated by
Section 301 with respect to such Securities and upon
such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
SECTION 312. Additional Interest.
So long as any Preferred Securities remain
outstanding, if the Trust which issued such Preferred
Securities shall be required to pay, with respect to its
income derived from the interest payments on the
Securities of any series, any amounts for or on account
of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States,
or any other taxing authority, then, in any such case,
the Company will pay as interest on such series such
additional interest ("Additional Interest") as may be
necessary in order that the net amounts received and
retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result
in such Trust's having such funds as it would have had
in the absence of the payment of such taxes, duties,
assessments or governmental charges.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series 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) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture or (b)
pursuant to an election of the Company which is subject
to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with
an Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series
are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar
from the Outstanding Securities of such series 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 as the
Security Registrar shall deem fair and appropriate and
which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination
for Securities of such series or any integral multiple
thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum
authorized denomination for Securities of such series;
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, and less than all of such
Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order,
shall select for redemption all or any principal amount
of such Securities which have not been so tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any
Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of
any series are to be redeemed, the identification
of the particular Securities to be redeemed and the
portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such
Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
unless it shall have been specified as contemplated
by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking
or other fund, if such is the case, and
(g) such other matters as the Company
shall deem desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect
to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been
paid in accordance with Section 701, such notice may
state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so
received such notice shall be of no force or effect and
the Company shall not be required to redeem such
Securities. In the event that such notice of redemption
contains such a condition and such money is not so
received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that
such money was not so received and such redemption was
not required to be made, and the Paying Agent or Agents
for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon
such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
specified, and from and after such date (unless, in the
case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or
portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for
redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if
so specified as contemplated by Section 301 with respect
to such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to
the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business
on the related Regular Record Date according to the
terms of such Security and subject to the provisions of
Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to
be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security
or Securities of the same series, 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, except as otherwise specified
as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series 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 is herein referred to as an "optional sinking
fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied
to the redemption of Securities of the series 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 in respect of which a
mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series 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 or Outstanding
Securities purchased by the Company, in each case in
satisfaction of all or any part of such mandatory
sinking fund payment with respect to the Securities of
such series; 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, 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;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by the payment of cash;
(e) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by delivering and crediting Securities of
such series pursuant to Section 502 and stating the
basis for such credit and that such Securities have
not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to
be so delivered. If the Company shall not deliver
such Officer's Certificate, the next succeeding
sinking fund payment for such series 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 (including
Additional Interest), 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 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 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, 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, 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, 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, it
shall, on or before each due date of the principal of
and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such sums to be
held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company shall promptly
notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for
the Securities of any series, other than the Company or
the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section,
that such Paying Agent shall:
(a) hold all sums held by it for the
payment of the principal of and premium, if any, or
interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any
failure by the Company (or any other obligor upon
such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance
of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company
or such Paying Agent and, if so stated in a Company
Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining
unclaimed for two years after such principal and
premium, if any, or interest, if any, 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 (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities
of any series, as contemplated by Section 301, if before
the time for such compliance the Holders of at least a
majority in aggregate principal amount of the
Outstanding Securities of all series with respect to
which compliance with Section 602 or such additional
covenant or restriction is to be omitted, considered as
one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive
compliance with such term, provision or condition and
(b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of at least a
majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and,
until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition
shall remain in full force and effect; provided,
however, so long as a Trust holds Securities of any
series, such Trust may not waive compliance or waive any
default in compliance by the Company with any covenant
or other term contained in this Indenture or the
Securities of such series without the approval of the
holders of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities
issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
SECTION 608. Restriction on Payment of Dividends.
So long as any Preferred Securities of any
series remain outstanding, the Company shall not declare
or pay any dividend on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of the
Company's capital stock, or make any guarantee payments
with respect to the foregoing (other than payments under
the Guarantee relating to such Preferred Securities) if
at such time (a) the Company shall be in default with
respect to its payment or other obligations under the
Guarantee relating to such Preferred Securities, (b)
there shall have occurred and be continuing a payment
default (whether before or after expiration of any
period of grace) or an Event of Default hereunder or
(c) the Company shall have elected to extend any
interest payment period as provided in Section 311, and
any such period, or any extension thereof, shall be
continuing.
SECTION 609. Maintenance of Trust Existence.
So long as Preferred Securities of any series
remain outstanding, the Company shall (i) maintain
direct or indirect ownership of all interests in the
Trust which issued such Preferred Securities, other than
such Preferred Securities, (ii) not voluntarily (to the
extent permitted by law) dissolve, liquidate or wind up
such Trust, except in connection with a distribution of
the Securities to the holders of the Preferred
Securities in liquidation of such Trust, (iii) remain
the sole Depositor under the Trust Agreement (the
"Depositor") of such Trust and timely perform in all
material respects all of its duties as Depositor of such
Trust, and (iv) use reasonable efforts to cause such
Trust to remain a business trust and otherwise continue
to be treated as a grantor trust for Federal income tax
purposes provided that any permitted successor to the
Company under this Indenture may succeed to the
Company's duties as Depositor of such Trust; and
provided further that the Company may permit such Trust
to consolidate or merge with or into another business
trust or other permitted successor under the Trust
Agreement pertaining to such Trust so long as the
Company agrees to comply with this Section 609 with
respect to such successor business trust or other
permitted successor.
SECTION 610. Rights of Holders of Preferred Securities.
The Company agrees that, for so long as any
Preferred Securities remain outstanding, its obligations
under this Indenture will also be for the benefit of the
holders from time to time of Preferred Securities, and
the Company acknowledges and agrees that such holders
will be entitled to enforce this Indenture, as third
party beneficiaries, directly against the Company to the
same extent as if such holders of Preferred Securities
held a principal amount of Securities equal to the
stated liquidation amount of the Preferred Securities
held by such holders.
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, Government 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, 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 Government Obligations deposited in
accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Government Obligations
shall have been deposited, an Opinion of
Counsel that the obligations so deposited
constitute Government Obligations and do not
contain provisions permitting the redemption
or other prepayment at the option of the
issuer thereof, and an opinion of an
independent public accountant of nationally
recognized standing, selected by the Company,
to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have
been made prior to the Maturity of such
Securities, an Officer's Certificate stating
the Company's intention that, upon delivery of
such Officer's Certificate, its indebtedness
in respect of such Securities or portions
thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Government Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y)
and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's
Certificate specified in clause (z) shall not have been
delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such
Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of
any of the covenants of the Company under Article Six
(except the covenants contained in Sections 602 and 603)
or any other covenants made in respect of such
Securities or portions thereof as contemplated by
Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall not
be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be
entitled to look to the Company for payment of the
indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that
such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all
of the Securities of any series 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.
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 Government 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 Government
Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge
imposed on or assessed against such Government
Obligations or the principal or interest received in
respect of such Government 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 Government
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 Government Obligations held by the
Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Government Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Government
Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment
of the principal of and premium, if any, and interest,
if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was
made, all subject, however, to the provisions of Section
603; provided, however, that, so long as there shall not
have occurred and be continuing an Event of Default any
cash received from such principal or interest payments
on such Government Obligations, if not then needed for
such purpose, shall, to the extent practicable, be
invested in Government Obligations of the type described
in clause (b) in the first paragraph of Section 701
maturing at such times and in such amounts as shall be
sufficient to pay when due the principal of and premium,
if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall
not have occurred and be continuing an Event of Default,
any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount
required to pay the principal of and premium, if any,
and interest, if any, then due on such Securities shall
be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if
an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event
of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of
the following events:
(a) failure to pay interest, if any,
including any Additional Interest, on any Security
of such series within 30 days after the same
becomes due and payable (whether or not payment is
prohibited by the provisions of Article Fifteen
hereof); provided, however, that a valid extension
of the interest payment period by the Company as
contemplated in Section 311 of this Indenture shall
not constitute a failure to pay interest for this
purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series at
its Maturity (whether or not payment is prohibited
by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any
covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or
more series of Securities other than such series)
for a period of 60 days after there has been given,
by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by
the Holders of at least 33% in principal amount of
the Outstanding Securities of such series, a
written notice specifying such default or breach
and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series
not less than the principal amount of Securities
the Holders of which gave such notice, as the case
may be, shall agree in writing to an extension of
such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of
such series, as the case may be, shall be deemed to
have agreed to an extension of such period if
corrective action is initiated by the Company
within such period and is being diligently pursued;
or
(d) the entry by a court having
jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree
or order adjudging the Company a bankrupt or in
solvent, or approving as properly filed a petition
by one or more Persons other than the Company seek
ing 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 appli
cable Federal or State bankruptcy, insolvency, reor
ganization 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 reorga
nization or relief under any applicable Federal or
State law, or the consent by it to the filing of
such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its
property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally
as they become due, or the authorization of such
action by the Board of Directors; or
(f) any other Event of Default specified
with respect to Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default due to the default in
payment of principal of, or interest on, any series of
Securities or due to the default in the performance or
breach of any other covenant or warranty of the Company
applicable to the Securities of such series but not
applicable to all outstanding Securities shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal
of all Securities of such series and interest accrued
thereon to be due and payable immediately (provided that
the payment of principal and interest on such Securities
shall remain subordinated to the extent provided in
Article Fifteen hereof). If an Event of Default due to
default in the performance of any other of the covenants
or agreements herein applicable to all Outstanding
Securities or due to certain events of bankruptcy,
insolvency or reorganization of the Company shall have
occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of all
Securities then Outstanding (considered as one class),
and not the Holders of the Securities of any one of such
series, may declare the principal of all Securities and
interest accrued thereon to be due and payable
immediately (provided that the payment of principal and
interest on such Securities shall remain subordinated to
the extent provided in the Indenture).
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree for
payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the
Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on
all Securities of such series;
(2) the principal of and
premium, if any, on any Securities of such
series which have become due otherwise than by
such declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment
of such interest is lawful, interest upon
overdue interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the
Trustee under Section 907;
and
(b) any other Event or Events of Default
with respect to Securities of such series, other
than the nonpayment of the principal of Securities
of such series which shall have become due solely
by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause (a)
or (b) of Section 801 shall have occurred and be con
tinuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securi
ties of the series with respect to which such Event of
Default shall have occurred, the whole amount then due
and payable on such Securities for principal and premi
um, if any, and interest, if any, and, to the extent per
mitted by law, interest on premium, if any, and on any
overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same
against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the
property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most ef
fectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper
remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the
whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section
907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or
other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the
Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or on the Securities may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders in respect of which
such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this Arti
cle shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit
of which such money shall have been collected and the
notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts
then due and unpaid upon the Securities for
principal of and premium, if any, and interest, if
any, in respect of which or for the benefit of
which such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal, premium, if any, and
interest, if any, respectively; and
Third: To the payment of the remainder,
if any, to the Company or to whomsoever may be
lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute
any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously
given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class, shall have
made written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the
Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal,
Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 311) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights
shall not be impaired without the consent of such
Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any
determination in such proceeding, the Company, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last
paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy here
under, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right
or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and
be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority
in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class,
shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in
conflict with any rule of law or with this Indenture.
Before proceeding to exercise any right or power
hereunder at the direction of such Holders, the Trustee
shall be entitled to receive from such Holders
reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it
in compliance with any 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;
provided, however, that so long as a Trust holds the
Securities of any series, such Trust may not waive any
past default without the consent of at least a majority
in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected,
obtained as provided in the Trust Agreement pertaining
to such Trust.
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) The Trustee shall have and be
subject to all the duties and responsibilities
specified with respect to an indenture trustee in
the Trust Indenture Act and no implied covenants or
obligations shall be read into this Indenture
against the Trustee.
(b) No provision of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so
provided, every provision of this Indenture
relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Notwithstanding anything contained in this
Indenture to the contrary, the duties and
responsibilities of the Trustee under this Indenture
shall be subject to the protections and limitations on
liability afforded to the Trustee under this Indenture
and the Trust Indenture Act.
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 45
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 in
good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, deben
ture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be
genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the
Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, or
as otherwise expressly provided herein, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of
this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to
taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel
and the written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the
Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to
make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to
examine, during normal business hours, the books,
records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Trustee shall not be charged
with knowledge of any Event of Default with respect
to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
of the Event of Default or (2) written notice of
such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities (except the Trustee's certificates of
authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if
it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds, except to the
extent required by law. The Trustee shall be under no
liability for interest on any money received by it
hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly
provided herein, reimburse the Trustee upon its
request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the
Trustee in accordance with any provision of this
Indenture (including the reasonable compensation
and the expenses and disbursements of its agents
and counsel), except to the extent that any such
expense, disbursement or advance may be
attributable to the Trustee's negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold
it harmless from and against, any loss, liability
or expense reasonably incurred by it arising out of
or in connection with the acceptance or
administration of the trust or trusts hereunder or
the performance of its duties hereunder, including
the reasonable costs and expenses of defending
itself against any claim or liability in connection
with the exercise or performance of any of its
powers or duties hereunder, except to the extent
any such loss, liability or expense may be
attributable to its negligence, wilful misconduct
or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust
under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided,
however, that the negligence, wilful misconduct or bad
faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the
manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the
Trust Indenture Act and to the extent permitted thereby,
the Trustee, in its capacity as trustee in respect of
the Securities of any series, shall not be deemed to
have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other
series. The Trust Agreement and the Guarantee Agreement
pertaining to each Trust shall be deemed to be
specifically described in this Indenture for the
purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
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 corpora
tion publishes reports of condition at least annually,
pursuant to law or to the requirements of such
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign
immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Trustee and to the Company; provided that so long as any
Preferred Securities remain outstanding, the Trust which
issued such Preferred Securities shall not execute any Act
to remove the Trustee without the consent of the holders
of a majority in aggregate liquidation preference of
Preferred Securities issued by such Trust outstanding,
obtained as provided in the Trust Agreement pertaining to
such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 908 after written request therefor by the
Company or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 909 and shall fail to resign after
written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who
has been a bona fide Holder for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause (other
than as contemplated in clause (y) in subsection (d)
of this Section), with respect to the Securities of
one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such
series and that at any time there shall be only one
Trustee with respect to the Securities of any
particular series) and shall comply with the
applicable requirements of Section 911. If, within
one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 911, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee ap
pointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have
been so appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of itself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after
notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be
continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the
Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee,
effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee
in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant
to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911
shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with
this subsection (f).
(g) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to
the Securities of any series by mailing written
notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of
such series and the address of its corporate trust
office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become
effective and such successor Trustee, without any
further act shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of
all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall
duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any instruments which fully
vest in and confirm to such successor Trustee all
such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance
such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the suc
cessor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any suc
cessor 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 authenti
cated 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, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued
upon original issuance and upon 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, authorized under such laws to act as Authenti
cating 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 all or substantially all of the corporate
agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authen
ticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities
of one or more series shall be made pursuant to this
Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
________________________
As Trustee
By_____________________
_
As Authenticating
Agent
By_____________________
_
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested by the Company in writing (which writing need
not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with
this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating
Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than _______ and
___________ in each year, commencing _______________, and
at such other times as the Trustee may request in writing,
the Company shall furnish or cause to be furnished to the
Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information
and similar information received by it in any other
capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in
such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be
furnished so long as the Trustee shall be the Security
Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than November 1 in each year,
commencing November 1, 1996, the Trustee shall transmit to
the Holders and the Commission a report, dated as of the
next preceding September 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.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise
transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(a) the corporation formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Com
pany substantially as an entirety shall be a Person
organized and validly existing under the laws of the
United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of
this Indenture on the part of the Company to be per
formed or observed;
(b) immediately after giving effect to such
transaction 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 to
surrender any right or power herein conferred upon
the Company; or
(c) to add any additional Events of Default
with respect to all or any series of Securities
Outstanding hereunder; or
(d) to change or eliminate any provision of
this Indenture or to add any new provision to this
Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the
interests of the Holders of Securities of any series
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 only pursuant
to the provisions of Section 1202 hereof or when no
Security of such series remains Outstanding; or
(e) to provide collateral security for all but
not part of the Securities; or
(f) to establish the form or terms of
Securities of any series 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
noncertificated system of registration for all, or
any series 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 shall be
payable, (2) all or any series of Securities may be
surrendered for registration of transfer, (3) all or
any series of Securities may be surrendered for
exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities
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 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 or
are contained herein to reflect any provisions
of the Trust Indenture Act as in effect at such
date, this Indenture shall be deemed to have
been amended to effect such changes or
elimination, and the Company 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 or modifying in any manner the rights of
the Holders of Securities of such series under the
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 no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal
of, or any installment of principal of or interest on
(except as provided in Section 311 hereof), any
Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method
of calculating such rate or reduce any premium
payable upon the redemption thereof, or 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, if
applicable, in liquidation preference of any series
of Preferred Securities), the consent of the Holders
of which is required for any such supplemental in
denture, 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
(c) modify any of the provisions of this
Section, Section 607 or Section 813 with respect to
the Securities of any series, 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, how
ever, 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 pro
viso, in accordance with the requirements of Sections
911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the
Preferred Securities remain outstanding, the Trustee may
not consent to a supplemental indenture under this Section
1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such
Preferred Securities, of the holders of not less than a
majority in aggregate liquidation preference of all
Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred
Securities then outstanding which would be affected
thereby, considered as one class. A supplemental
indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of
Securities of any other series.
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 and delivery of any
supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental
indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede
this Indenture as theretofore in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series 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 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.
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 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 supplemental Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution
or supplemental 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 supplemental 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 may be called at any time and from
time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 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 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 by the Company or by the Holders
of 33% in aggregate principal amount of all of such
series, considered as one class, for any purpose
specified in Section 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 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 shall be valid without notice
if the Holders of all Outstanding Securities of such
series are present in person or by proxy and if rep
resentatives of the Company and the Trustee are
present, or if notice is waived in writing before or
after the meeting by the Holders of all Outstanding
Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and
by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of one or more, or all, series a Person
shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled
to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company 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 with respect to which a meeting shall have
been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if
any action is to be taken at such meeting which this
Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of such
series, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the
Outstanding Securities of such series, considered as one
class, shall constitute a quorum. In the absence of a
quorum within 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, 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 recon
vened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of the series with respect to which
such meeting shall have been called, considered as one
class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such
series, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such
series, considered as one class.
Any resolution passed or decision taken at any
meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of
Securities of the series with respect to which such
meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of
Securities may be in person or by proxy; and, to the
extent permitted by law, any such proxy shall remain
in effect and be binding upon any future Holder of
the Securities with respect to which it was given
unless and until specifically revoked by the Holder
or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties
of inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of
Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be
presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b),
in which case the Company or the Holders of
Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all
series represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall
be entitled to one vote for each $1 principal amount
of Outstanding 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 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 with respect to which the meeting shall have been
called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with
the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be
attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, de
mand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Holders by
written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Dire
ctors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation,
covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future of the Company or of any
predecessor or successor corporation (either directly or
through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional pro
vision, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of
any predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior
Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on
each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner
set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by
its acceptance thereof, authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article, and appoints the Trustee its attorney-in-
fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation,
reorganization or other similar proceedings in respect of
the Company or a substantial part of its property, or of
any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the provisions
of Section 1503, that (i) a default shall have occurred
with respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or
interest or other monetary amounts due and payable) in
respect of any Senior Indebtedness, as defined therein or
in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default
shall not have been cured or waived or shall not have
ceased to exist, or (c) that the principal of and accrued
interest on the Securities of any series shall have been
declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as
provided in Section 802, then:
(1) the holders of all Senior
Indebtedness shall first be entitled to
receive payment of the full amount due
thereon, or provision shall be made for
such payment in money or money's worth,
before the Holders of any of the Securities
are entitled to receive a payment on
account of the principal of or interest on
the indebtedness evidenced by the
Securities, including, without limitation,
any payments made pursuant to Articles Four
and Five;
(2) any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the
Trustee would be entitled except for the
provisions of this Article, shall be paid
or delivered by the person making such
payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the
holders of such Senior Indebtedness or
their representative or representatives or
to the trustee or trustees under any
indenture under which any instruments
evidencing any of such Senior Indebtedness
may have been issued, ratably according to
the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or
represented by each, to the extent
necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before
any payment or distribution is made to the
Holders of the indebtedness evidenced by
the Securities or to the Trustee under this
Indenture; and
(3) in the event that,
notwithstanding the foregoing, any payment
by, or distribution of assets of, the
Company of any kind or character, whether
in cash, property or securities, in respect
of principal of or interest on the
Securities or in connection with any
repurchase by the Company of the
Securities, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision
is made for such payment in money or
money's worth, such payment or distribution
in respect of principal of or interest on
the Securities or in connection with any
repurchase by the Company of the Securities
shall be paid over to the holders of such
Senior Indebtedness or their representative
or representatives or to the trustee or
trustees under any indenture under which
any instruments evidencing any such Senior
Indebtedness may have been issued, ratably
as aforesaid, for application to the
payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full,
after giving effect to any concurrent
payment or distribution (or provision
therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Government Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those
arising under this Article Fifteen; provided that no event
described in clauses (d) and (e) of Section 801 with
respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to
all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article Eleven
hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eleven hereof.
Nothing in Section 1501 or in this Section 1502 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness.
Any failure by the Company to make any payment
on or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by the
Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default under clause (b)
of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such
dispute shall have been issued against the Company which
is in full force and effect and is not subject to further
review, including a judgment that has become final by
reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or
appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such
appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness, the
rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities
shall be paid in full; and such payments or distributions
of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which
otherwise would be paid or distributed to the holders of
such Senior Indebtedness shall, as between the Company,
its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are
and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere
in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the Holders,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of
any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in
which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this
Article.
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise,
all matured principal of Senior Indebtedness and interest
and premium, if any, thereon shall first be paid in full
before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before
any Securities can be acquired by the Company or any
sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of
such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as
such holder.
SECTION 1508. Notice to Trustee to Effectuate
Subordination.
Notwithstanding the provisions of this Article
or any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the Trustee
shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior
Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to
Section 901, in all respects to assume that no such facts
exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose,
or in the event of the execution of an instrument pursuant
to Section 702 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the notice
provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply
the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary, which
may be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons receiving
such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment
of the principal of and premium, if any, and interest, if
any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any
Senior Indebtedness, or amend or supplement any instrument
pursuant to which any Senior Indebtedness is issued, or
exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without
limitation, the waiver of default thereunder, all without
notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or deliver to the Holders
or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled
by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1507, 1508 and
1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired.
No right of any present or future holder of
Senior Indebtedness to enforce the subordination herein
shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or
by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 1513. Effect of Subordination Provisions;
Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately
succeeding sentence, all the provisions of this Indenture
shall be subject to the provisions of this Article, so far
as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be
of no further effect, and the Securities shall no longer
be subordinated in right of payment to the prior payment
of Senior Indebtedness, if the Company shall have
delivered to the Trustee a notice to such effect. Any
such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article
Twelve.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, all as of the
day and year first above written.
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
___
____________________, Trustee
By:______________________________
___
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of _________, 1995, before me
personally came _________________, to me known, who, being
by me duly sworn, did depose and say that he is the
_________________________ of Mississippi Power & Light
Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
________________________________
Notary Public
[Notarial Seal]
STATE OF _____________________ )
) ss.:
COUNTY OF ___________________ )
On the _____ day of ____________, 1995, before
me personally came _________________, to me known, who,
being by me duly sworn, did depose and say that he is a
_________________ of _____________________, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name
thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-17
No._______________
Cusip No.__________
[FORM OF FACE OF SUBORDINATED DEBENTURE]
MISSISSIPPI POWER & LIGHT COMPANY
__% SUBORDINATED DEBENTURE
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State Mississippi
(herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby
promises to pay to ____________________________________, or
registered assigns, the principal sum of ____________________
Dollars on __________,____, and to pay interest on said principal
sum from ________________, or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, quarterly on __________, __________, _________ and
__________ of each year, commencing ______________, at the rate
of ____% per annum until the principal hereof is paid or made
available for payment. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. Interest on the Securities of this
series will accrue from _________ 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. In the
event that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the
Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the day 15 days preceding such
Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture referred to on the reverse
hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the City of
__________, the State of ______________, in such coin or currency
of the United States of America as at the time of payment is
legal tender for payment of public and private debts, provided,
however, that, at the option of the Company, interest on this
Security may be paid by check mailed to the address of the person
entitled thereto, as such address shall appear on the Security
Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
MISSISSIPPI POWER & LIGHT COMPANY
By:_______________________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_____________________, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of ______________, (herein, together with any amendments
thereto, called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company
and __________________, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture, including the
Board Resolutions and Officer's Certificate filed with the
Trustee on ________________, creating the series designated on
the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to
$___________.
*[The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by
mail, at any time on or after __________, ____ as a whole or in
part, at the election of the Company, at a Redemption Price equal
to 100% of the principal amount, together in the case of any such
redemption with accrued interest to, but not including, the
Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the
Holder of such Security, or one or more Predecessor Securities,
of record at the close of business on the related Regular Record
Date referred to on the face hereof, all as provided in the
Indenture.
The Securities of this series will also be redeemable
at the option of the Company if a Tax Event shall occur and be
continuing, in whole or in part, at a redemption price plus
accrued and unpaid distributions equal to 100% of the principal
amount of the Debentures of the First Series then Outstanding
plus any accrued and unpaid interest, including Additional
Interest, if any, to the redemption date, upon not less than 30
nor more than 60 days' notice. "Tax Event" means any event or
events as a result of which, there is more than an insubstantial
risk that (i) the Trust is, or will be subject to United States
federal income tax with respect to interest received on the
Securities of this series, (ii) interest payable by the Company
on the Securities of this series is not, or will not be, fully
deductible for United States federal income tax purposes, or
(iii) the Trust is, or will be, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.]
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive certain past defaults
under the Indenture and their consequences or of the Securities
of all series affected, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Company shall have the right at any time and from
time to time during the term of the Securities of this series to
extend the interest payment period to a period not exceeding 20
consecutive quarters (an "Extended Interest Payment Period"), and
at the end of such Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid (together with
interest thereon at the same rate as specified for the Securities
of this series to the extent permitted by applicable law);
provided, however, that during such Extended Interest Payment
Period the Company shall not declare or pay any dividend or
distribution (other than a dividend or distribution in common
stock of the Company) on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock,
redeem any indebtedness that is pari passu with the Securities of
this series, or make any guarantee payments with respect to the
foregoing. Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend the
interest payment period, provided that such Extended Interest
Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Securities of this
series. Upon the termination of any such Extended Interest
Payment Period and the payment of all amounts then due, the
Company may select a new Extended Interest Payment Period,
subject to the above requirements. No interest during the
Extended Interest Payment Period, except at the end thereof,
shall be due and payable. The Company shall give the Holder of
this Security notice of its selection of such Extended Interest
Payment Period as provided in the Indenture.
The Securities of this series are issuable only in
registered form without coupons in denominations of $__ and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
_______________________________
*. These provisions are subject to change depending on the
terms of the particular series of Securities being issued.
Exhibit B-1
____________, 1996
To prospective purchasers
of the First Mortgage Bonds of
Mississippi Power & Light Company
Gentlemen:
Mississippi Power & Light Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $530,000,000 aggregate principal
amount of its First Mortgage Bonds ("Bonds"). The Company
will receive proposals for the purchase of all or such
portion of the Bonds as may be designated by the Company to
prospective purchasers.
Enclosed please find copies of a prospectus dated
__________________ relating to the Bonds, a questionnaire to
be used in furnishing certain information to the Company and
an Underwriting Agreement for use in submitting a proposal.
You may obtain copies of the registration statement relating
to the Bonds and of the documents incorporated by reference
in the prospectus by contacting
_______________________________
____________________________________________.
The Company will give notice ("Notice") to two or more of
the following prospective purchasers: Morgan Stanley & Co.
Incorporated, Merrill Lynch & Co., Salomon Brothers Inc.,
The First Boston Corporation, Smith Barney, Harris Upham &
Co. Incorporated, Stephens Inc., Bear, Stearns & Co., Inc.,
UBS Securities Inc., Prudential Securities, Inc., Morgan
Keegan & Co., Inc., Shearson Lehman Brothers, Inc., J. P.
Morgan Securities Inc., Goldman, Sachs & Co., A. G. Edwards
& Sons, Inc., Chase Securities Inc. and J. C. Bradford & Co.
at least two (2) hours prior to the time proposals are to be
submitted of (i) the principal amount of the Bonds being
offered, (ii) the date on which such Bonds will be issued,
(iii) the maturity date of such Bonds, (iv) the date from
which interest will accrue, (v) the range within which the
price offered to the Company by the prospective purchasers
of the Bonds would be acceptable, (vi) whether the Company
will provide, or will permit prospective purchasers to
provide, an insurance policy for the payment of the
principal of and/or interest on the Bonds being offered and,
if such an insurance policy will be provided by the Company,
the terms thereof, (vii) the date, time and location for the
submission of proposals, (viii) the manner in which
proposals are to be submitted, (ix) whether the redemption
provisions described in Appendix A hereto will be applicable
to the Bonds being offered and the terms of any other
redemption provisions that may be applicable and (x) whether
the dividend covenant described in Appendix A will be
applicable to the Bonds being offered. The Company will
also make available to prospective purchasers, prior to the
time proposals are to be submitted, a description of the
procedures that will be used by the Company to determine the
winning proposal. Various basic terms relating to the Bonds
are set forth in Appendix A hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-
1000), is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Bonds under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
MISSISSIPPI POWER & LIGHT COMPANY
By: ______________________________
<PAGE>
APPENDIX A
MISSISSIPPI POWER & LIGHT COMPANY
Summary of Terms
Relating to the Purchase of First Mortgage Bonds of a
Particular Series
Principal Amount To be designated by the Company in the
Notice.
Date of Issuance To be designated by the Company in the
Notice.
Date of Maturity To be designated by the Company in the
Notice.
Date from which
Interest will To be designated by the Company in the
Accrue Notice.
Interest Rate The annual interest rate shall be as set
forth in the Underwriting Agreement
submitted by the successful underwriter
or underwriters and shall be a multiple
of 0.125% (1/8th of 1%.)
Insurance If the Company determines to provide, or
to permit prospective purchasers to
provide, an insurance policy for the
payment of the principal of and/or
interest on one or more series of the
Bonds, the Company will so state in the
Notice. If such an insurance policy is
to be provided by the Company, the terms
thereof will be described in the Notice.
Sinking Fund See the accompanying prospectus relating
to the Bonds.
Dividend Covenant, if If specified in the Notice, the Company
any will covenant in substance that, so long
as any Bonds of the particular series
being offered remain outstanding, it
will not pay any cash dividends on
common stock after a selected date close
to the date of the original issuance of
such series of Bonds (other than certain
dividends that may be declared by the
Company prior to the original issuance
of such series of Bonds) except from
credits to earned surplus after such
selected date plus an amount of up to
$345 million and plus such additional
amounts as shall be approved by the
Securities and Exchange Commission
Price to Company The price shall be as set forth in the
Underwriting Agreement submitted by the
successful purchaser or purchasers and
shall be within a range of not more than
five percentage points (as designated by
the Company in the Notice), which range
shall be within 95% and 105% of the
principal amount, plus accrued interest
at the rate set forth in such
Underwriting Agreement
Redemption Provisions Unless otherwise stated in the Notice,
the following redemption provisions
shall be applicable: For the purpose of
determining the redemption prices of the
Bonds: (a) the term "annual redemption
period" shall mean the twelve month
period beginning (1) on the first day of
the calendar month in which the Bonds
are issued in each calendar year,
beginning with the calendar year in
which the Bonds are issued, and ending
on the last day of the preceding
calendar month of the next succeeding
calendar year; except that, if the Bonds
are issued in the month of January, and
bear interest from the first day of
January, then ending on the last day of
December in the same calendar year, or
(2) if the Bonds bear interest from the
15th day of the month in which the Bonds
are issued, then beginning on the 15th
day of said month, and ending on the
14th day of the same calendar month of
the next succeeding calendar year; (b)
the term "stated interest rate" shall
mean the stated interest rate per annum
to be set forth in the Bonds (stated as
a percentage of the principal amount
thereof), as specified in the successful
proposal; (c) the term "initial public
offering price" shall mean the single
fixed price (stated as a percentage of
the principal amount of the Bonds and
exclusive of accrued interest) at which
the Bonds are to be initially offered
for sale to the public by the successful
purchaser or purchasers, as specified by
them at the time of the acceptance of
the successful proposal and as set forth
in the supplement to the Prospectus
relating to the Bonds to be filed with
the Securities and Exchange Commission
following the acceptance of the
successful proposal; provided, however,
that if the successful purchaser or
purchasers shall specify at the time of
the acceptance of the successful
proposal that they do not intend to make
a public offering of the Bonds at a
single fixed price, the term "initial
public offering price" shall mean the
price (stated as a percentage of the
principal amount of the Bonds and
exclusive of accrued interest) to be
paid by the successful purchaser or
purchasers to the Company for the Bonds;
(d) the term "initial unadjusted
premium" shall mean the amount (stated
as a percentage of the principal amount
of the Bonds and before the adjustment
provided for below) by which the initial
public offering price plus the stated
interest rate shall exceed 100% of the
principal amount of the Bonds; (e) the
term "applicable fraction" shall mean a
fraction, the numerator of which shall
be one and the denominator of which
shall be the lesser of (i) 24 or (ii)
two less than the number of years from
the date of the Bonds to their stated
maturity; provided, however, that the
denominator shall never be less than
four; and (f) the term "date of issue"
shall mean the day of the calendar month
to which the Bonds are issued from which
interest accrues.
The general redemption prices of the
Bonds shall be, for and during the first
annual redemption period, 100% of their
principal amount plus the initial
unadjusted premium for and during each
annual redemption period thereafter
until the annual redemption period for
which the general redemption price shall
be reduced to 100% of their principal
amount without premium, 100% of their
principal amount plus a premium equal to
the initial unadjusted premium, less an
amount equal to the applicable fraction
of the initial unadjusted premium
multiplied by the number of annual
redemption periods which shall have
passed between the date of issue and the
date fixed for redemption; and for and
during each annual redemption period
thereafter, 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption; provided,
however, that the general redemption
prices shall never be less than the
special redemption prices. The Company
may determine to limit for a period of
years set forth in the Notice its
ability to redeem the Bonds under
circumstances where general redemption
prices would be applicable, if such
redemption is for the purpose or in
anticipation of refunding such Bonds
through the use, directly or indirectly,
of funds borrowed by the Company at an
effective interest cost to the Company
(computed in accordance with generally
accepted financial practice) of less
than the "effective interest cost"
(stated as a multiple of 0.0001%
(1/10,000th of 1%)), of the Bonds. The
"effective cost" will be the yield based
on the date of maturity of the Bonds,
the interest rate to be borne thereby
and the price to the Company (exclusive
of accrued interest) for the Bonds.
For the purpose of determining the
special redemption applicable for and
during any annual redemption period of
the Bonds which are to be reoffered at a
single fixed price, the stated interest
rate to be borne by such Bonds, a term
equal to the number of years from the
beginning of each such redemption period
to the stated maturity, and the basic
yield of such Bonds shall be used. The
term "basic yield" for such purpose
shall mean the percentage yield,
computed to at least eight decimal
places and calculated on the basis of
(a) the initial public offering price,
(b) the stated interest rate and (c) the
date of maturity of such Bonds. The
special redemption price of such Bonds
applicable for and during any annual
redemption period shall be such price as
will produce a yield equal to the basic
yield, except that for and during any
annual redemption period for which the
general redemption price of such Bonds
shall be 100% of their principal amount
without premium, the special redemption
price shall be 100% of their principal
amount without premium, and except that,
if the initial public offering price is
100% of the principal amount of such
Bonds or less, the special redemption
price of such Bonds during each annual
redemption period shall be 100% of their
principal amount without premium; in
each case together with accrued interest
to the date fixed for redemption. The
special redemption price applicable for
and during any annual redemption period
of such Bonds which are not reoffered at
a single fixed price shall be 100% of
their principal amount without premium,
together with accrued interest to the
date fixed for redemption.
If, in any case, other than the initial
general and special redemption prices, a
redemption price computed as hereinabove
set forth shall not be a multiple of
0.01% (1/100 of 1%) and if the remainder
of dividing such price by .01% is
greater than .5, the price shall be
rounded up to the next higher multiplier
of .01%; otherwise it shall be rounded
down to the next lower multiple of .01%.
If the foregoing redemption provisions
shall not be applicable, the Company
will specify in the Notice the
applicable redemption provisions, which
could include, for example, an absolute
prohibition on redemption for a period
of years or for the life of the Bonds.
Registration No. 33-__________
Statements
Miscellaneous For further information regarding the
terms of the Bonds, please refer to the
accompanying Prospectus relating to the
Bonds.
The Underwriting Agreement submitted by
the successful purchaser or purchasers
shall, upon acceptance by the Company,
become effective as and constitute the
agreement between the Company and such
purchaser or purchasers covering the
sale and purchase of the Bonds.
[FORM OF GENERAL & REFUNDING MORTGAGE BOND
UNDERWRITING AGREEMENT]
Exhibit B-2
MISSISSIPPI POWER & LIGHT COMPANY
$___________
General and Refunding Mortgage Bonds
______% Series due ______, ______
UNDERWRITING AGREEMENT
________ ___, 19__
[UNDERWRITERS]
[LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
The undersigned, Mississippi Power & Light Company, a
Mississippi corporation (the "Company"), proposes to issue and
sell severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $___________ principal amount of the Company's
General and Refunding Mortgage Bonds, ______% Series due
___________ ___, ______, (the "Bonds"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters, and each Underwriter
shall purchase from the Company, at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Bonds set forth opposite the name of such
Underwriter in Schedule I attached hereto at _____% of the
principal amount of the Bonds plus accrued interest thereon from
___________ ____, ______, to the date of payment for and delivery
of the Bonds.
SECTION 2. Description of Bonds. The Bonds shall be issued
under and pursuant to the Company's Mortgage and Deed of Trust,
dated as of February 1, 1988, with Bank of Montreal Trust
Company, as Corporate Trustee, and Mark F. McLaughlin (successor
to Z. George Klodnicki), as Co-Trustee (the Co-Trustee, together
with the Corporate Trustee, are hereinafter called the
"Trustees"), as supplemented and as it will be further
supplemented by the _______ Supplemental Indenture, dated as of
____________ ____, ______ (the "Supplemental Indenture"). Said
Mortgage and Deed of Trust, as supplemented and as it will be
further supplemented by the Supplemental Indenture, is
hereinafter referred to as the "Mortgage." The Bonds and the
Supplemental Indenture shall have the terms and provisions
described in the Prospectus hereinafter referred to, provided
that subsequent to the date hereof and prior to the Closing Date
(as defined herein) the form of the Supplemental Indenture may be
amended by mutual agreement between the Company and the
Underwriters.
SECTION 3. Representations and Warranties of the Company.
The Company represents and warrants to the several Underwriters
that:
(a) The Company is duly organized and validly existing
as a corporation in good standing under the laws of the
State of Mississippi, is in good standing and duly qualified
to do business in the State of Arkansas, and has the
necessary corporate power and authority to conduct the
business which it is described in the Prospectus
(hereinafter defined) as conducting and to own and operate
the properties owned and operated by it in such business.
(b) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 33-53004) (the "First 1992
Registration Statement") for the registration of 375,000
shares of the Company's Preferred Stock, Cumulative, $100
Par Value, under the Securities Act of 1933, as amended (the
"Securities Act"), and the First 1992 Registration Statement
has become effective. The Company has also filed with the
Commission a Registration Statement on Form S-3 (File No. 33-
55826) (the "Second 1992 Registration Statement") for the
registration of $235,000,000 principal amount of the
Company's general and refunding mortgage bonds under the
Securities Act, and the Second 1992 Registration Statement
has become effective. While an aggregate of $17,500,000
aggregate par value of such preferred stock and $50,000,000
of such general and refunding mortgage bonds remained
unsold, the Company also filed with the Commission a
Registration Statement on Form S-3 (File No. 33-50507) (the
"1993 Registration Statement") for the registration of
$282,500,000 aggregate par value and/or principal amount of
the Company's preferred stock and/or general and refunding
mortgage bonds under the Securities Act, and the 1993
Registration Statement has become effective. The combined
prospectus forming a part of the 1993 Registration Statement
and relating, pursuant to Rule 429 under the Securities Act,
to an aggregate of $350,000,000 aggregate par value and/or
principal amount of the Company's preferred stock and/or
general and refunding mortgage bonds (of which an aggregate
par value and/or principal amount of $_____________ of such
preferred stock and/or general and refunding mortgage bonds
remain unsold), including the Bonds at the time the 1993
Registration Statement became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus." In the event that the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any amendments, revisions or supplements to
the Basic Prospectus relating solely to General and
Refunding Mortgage Bonds other than the Bonds or relating
solely to shares of Preferred Stock) prior to the time of
effectiveness of this Underwriting Agreement, and with
respect to any documents filed by the Company pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the time the
1993 Registration Statement initially became effective and
up to the time of effectiveness of this Underwriting
Agreement (but excluding documents incorporated therein by
reference relating solely to General and Refunding Mortgage
Bonds other than the Bonds or relating solely to shares of
Preferred Stock), 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 1993
Registration Statement as it initially became effective and
as it may have been amended by any amendment thereto
included in the Basic Prospectus (including for these
purposes as an amendment any document incorporated by
reference in the Basic Prospectus), and the Basic Prospectus
as it shall be supplemented to reflect the terms of offering
and sale of the Bonds by a prospectus supplement (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. After the time of effectiveness of this
Underwriting Agreement and during the time specified in
Section 6(d), the Company will not file (i) any amendment to
the First 1992 Registration Statement, the Second 1992
Registration Statement or the Registration Statement (except
any amendment relating solely to General and Refunding
Mortgage Bonds other than the Bonds or relating solely to
shares of Preferred Stock) or supplement to the Prospectus
or (ii) prior to the time that the Prospectus is filed with,
or transmitted for filing to, the Commission pursuant to
Rule 424, any document which is to be incorporated by
reference in, or any supplement to (including the Prospectus
Supplement), the Basic Prospectus, in either case, without
prior notice to the Underwriters and to Winthrop, Stimson,
Putnam & Roberts ("Counsel for the Underwriters"), or any
such amendment or supplement to which said Counsel shall
reasonably object on legal grounds in writing. For purposes
of this Underwriting Agreement, any document which is filed
with the Commission after the time of effectiveness of this
Underwriting Agreement and incorporated by reference in the
Prospectus (except documents incorporated by reference
relating solely to General and Refunding Mortgage Bonds
other than the Bonds or relating solely to shares of
Preferred Stock) pursuant to Item 12 of Form S-3 shall be
deemed a supplement to the Prospectus.
(c) The First 1992 Registration Statement, the Second
1992 Registration Statement and the Registration Statement
at the respective times of their effectiveness, and the
Mortgage, at such times, fully complied, and the Prospectus,
when filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 and at the Closing Date
(hereinafter defined), as it may then be amended or
supplemented, will fully comply, in all material respects
with the applicable provisions of the Securities Act, 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 are or will be deemed to comply therewith. The
documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, on the date first filed
with the Commission pursuant to the Exchange Act, fully
complied or will fully comply in all material respects with
the applicable provisions of the Exchange Act and the rules
and regulations of the Commission thereunder or pursuant to
said rules and regulations are or will be deemed to comply
therewith. On the later of (i) their respective dates of
effectiveness 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 First 1992 Registration Statement,
the Second 1992 Registration Statement and the Registration
Statement did not, and on the date that any post-effective
amendment to the First 1992 Registration Statement, the
Second 1992 Registration Statement and the Registration
Statement became or becomes effective (but excluding any
post-effective amendment relating solely to General and
Refunding Mortgage Bonds other than the Bonds or relating
solely to shares of Preferred Stock), the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, as amended by any
such post-effective amendment, did not or will not, as the
case may be, contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. At the time the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 and at the Closing Date (as defined herein), the
Prospectus as it may 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 include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they are made, not misleading. The foregoing
representations and warranties in this paragraph (c) shall
not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for
use in connection with the preparation of the First 1992
Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus, as
they may be amended or supplemented, or to any statements
in, or omissions from, the statements of eligibility, as
either may be amended, under the Trust Indenture Act, of the
Trustees under the Mortgage.
(d) The issuance and sale of the Bonds and the
fulfillment of the terms of this Underwriting Agreement will
not result in a breach of any of the terms or provisions of,
or constitute a default under, the Mortgage or any other
financing agreement or instrument to which the Company is
now a party.
(e) Except as set forth or contemplated in the
Prospectus, as it may be amended or supplemented, the
Company possesses adequate franchises, licenses, permits,
and other rights to conduct its business and operations as
now conducted, and without any known conflicts with the
rights of others which could have a material adverse effect
on the Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Bonds as soon after the time of
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Bonds will be offered to the public at the initial
public offering price specified in the Prospectus Supplement plus
accrued interest thereon from _____________ ____, _____ to the
Closing Date (as defined herein).
SECTION 5. Time and Place of Closing. Delivery of the
Bonds and payment of the purchase price therefor by wire transfer
of, or check or checks payable in, New York Clearing House Funds
shall be made at the offices of Reid & Priest LLP, 40 West 57th
Street, New York, New York, at 10:00 A.M., New York time, on
____________ _____, ______ or at such other time on the same or
such other day as shall be agreed upon by the Company and [Lead
Underwriter], or as may be established in accordance with Section
11 herein. The hour and date of such delivery and payment are
herein called the "Closing Date."
The Bonds shall be delivered to the Underwriters in book-
entry form through the facilities of The Depository Trust Company
in New York, New York. The certificates for the Bonds shall be
in the form of one or more typewritten bonds in fully registered
form, in the aggregate principal amount of the Bonds, and
registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Bonds
available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon among the
Underwriters and the Company, or at such other time and/or date
as may be agreed upon among the Underwriters and the Company.
SECTION 6. Covenants of the Company. The Company covenants
and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company will
deliver to the Underwriters a copy of the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, as originally
filed with the Commission, and of all amendments thereto
relating to the Bonds, certified by an officer of the
Company to be in the form filed.
(b) The Company will deliver to the Underwriter(s) as
many copies of the Prospectus (and any amendments or
supplements thereto) as the Underwriter(s) may reasonably
request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant
to and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order
under the Securities Act with respect to the First 1992
Registration Statement, the Second 1992 Registration
Statement or the Registration Statement or the institution
of any proceedings therefor of which the Company shall have
received notice. The Company will use its best efforts to
prevent the issuance of any such stop order and to secure
the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are
required by law to deliver a prospectus, if any event
relating to or affecting the Company, or of which the
Company shall be advised by the Underwriters in writing,
shall occur which in the Company's opinion should be set
forth in a supplement or amendment to the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser of the
Bonds, the Company will amend or supplement, or cause to be
amended or supplemented, the Prospectus by either (i)
preparing and filing with the Commission and furnishing to
the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Prospectus, or (ii) making an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which will
supplement or amend the Prospectus, so that, as supplemented
or amended, it will not include an untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading.
Unless such event relates solely to the activities of the
Underwriters (in which case the Underwriters shall assume
the expense of preparing any such amendment or supplement),
the expenses of complying with this Section 6(d) shall be
borne by the Company until the expiration of nine months
from the initial effective date of the Registration
Statement, and such expenses shall be borne by the
Underwriters thereafter.
(e) The Company will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) covering a period of
at least twelve months beginning after the "effective date
of the registration statement" within the meaning of Rule
158 under the Securities Act, which earning statement shall
be in such form, and be made generally available to security
holders in such a manner, so as to meet the requirements of
the last paragraph of Section 11(a) of the Securities Act
and Rule 158 promulgated under the Securities Act.
(f) At any time within six months of the date hereof,
the Company will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Bonds for offer and sale under the "blue sky" laws of such
jurisdictions as the Underwriters may reasonably designate,
provided that the Company shall not be required to qualify
as a foreign corporation or dealer in securities, to file
any consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by it
to be unduly burdensome.
(g) The Company will, except as herein provided, pay
or cause to be paid all expenses and taxes (except transfer
taxes) in connection with (i) the preparation and filing of
the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and any
post-effective amendments thereto, (ii) the printing,
issuance and delivery of the Bonds and the preparation,
execution, printing and recordation of the Supplemental
Indenture, (iii) legal fees and expenses relating to the
qualification of the Bonds under the "blue sky" laws of
various jurisdictions and the determination of the
eligibility of the Bonds for investment under the laws of
various jurisdictions in an amount not to exceed $_______,
(iv) the printing and delivery to the Underwriters of
reasonable quantities of copies of the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, the preliminary
(a1nd any supplemental) blue sky survey and the prospectus
and any amendment or supplement thereto, except as otherwise
provided in paragraph (d) of this Section 6, (v) fees of the
rating agencies in connection with the rating of the Bonds,
and (vi) fees (if any) of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with its
review of the terms of the offering. Except as provided
above, the Company shall not be required to pay any amount
for 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, the Company will
reimburse the Underwriters for (i) the 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 General
and Refunding Mortgage Bonds without the consent of the
Underwriters until the earlier to occur of (i) the Closing
Date or (ii) the date of the termination of the fixed price
offering restrictions applicable to the Underwriters. The
Underwriters agree to notify the Company of such termination
if it occurs prior to the Closing Date.
(i) As soon as practicable after the Closing Date, the
Company will make all recordings, registrations and filings
necessary to perfect and preserve the lien of the Mortgage
and the rights under the Supplemental Indenture, and the
Company will use its best efforts to cause to be furnished
to the Underwriters a supplemental opinion of Wise Carter
Child & Caraway, Professional Association, addressed to the
Underwriters, stating that all such recordings,
registrations and filings have been made.
SECTION 7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Bonds
shall be subject to the accuracy on the date hereof and on the
Closing Date of the representations and warranties made herein on
the part of the Company and of any certificates furnished by the
Company and to the following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date as may be agreed upon
by the Company and the Underwriters.
(b) No stop order suspending the effectiveness of the
First 1992 Registration Statement, the Second 1992
Registration Statement or 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 of the Company, dated the
Closing Date and signed by the President or a Vice President
of the Company, to the effect that no such stop order has
been or is in effect and that no proceedings for such
purpose are pending before, or, to the knowledge of the
Company, threatened by, the Commission.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"),
authorizing the issuance and sale of the Bonds and the
execution of the Supplemental Indenture on the terms set
forth in, or contemplated by, this Underwriting Agreement.
(d) At the Closing Date, the Underwriters shall have
received from Wise Carter Child & Caraway, Professional
Association, general counsel for the Company, Friday,
Eldredge & Clark, special Arkansas counsel to the Company,
and Reid & Priest LLP, of counsel to the Company, 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 the
Underwriters with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus shall be
supplemented after being furnished to the Underwriters for
use in offering the Bonds, with changes therein to reflect
such supplementation.
(e) At the Closing Date, the Underwriters shall have
received from Counsel for the Underwriters, an opinion,
dated the Closing Date, substantially in the form set forth
in Exhibit 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 Company's independent
certified public accountants (the "Accountants"), a letter
dated the date hereof and addressed to you to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the financial
statements and financial statement schedules audited by them
and included or incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Exchange Act, and the related published rules and
regulations thereunder; (iii) if applicable, on the basis of
performing the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71,
Interim Financial Information, on the latest unaudited
financial statements included or incorporated by reference
in the Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, and the stockholder or
stockholders of the Company, since December 31, 1994, to a
specified date not more than five days prior to the date of
such letter or letters, 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 that 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 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 Exchange Act and the related
published rules and regulations thereunder; (B) any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally
accepted accounting principles; and (C) at a specified date
not more than five business days prior to the date of the
letter, there was any change in the capital stock or
long-term debt of the Company, or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
for declarations of dividends, for the repayment or
redemption of long-term debt, for the amortization of
premium or discount on long-term debt, for the redemption or
purchase of preferred stock for sinking fund purposes, for
any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial
development revenue bonds, or for changes or decreases as
set forth in such letter, identifying the same and
specifying the amount thereof; and (iv) stating that they
have compared specific dollar amounts, percentages of
revenues and earnings and other financial information
pertaining to the Company set forth in the Prospectus and
specified in Exhibit E hereto to the extent that such
amounts, numbers, percentages and information may be derived
from the general accounting records of the Company, and
excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in the letter, and found them to be in
agreement.
(g) At the Closing Date, the Underwriters shall have
received a certificate of the Company, dated the Closing
Date and signed by the President or a Vice President of the
Company, to the effect that (i) the representations and
warranties of the Company contained herein are true and
correct, (ii) 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 (iii) 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, such
Prospectus, as it may be amended or supplemented.
(h) The Underwriters shall have received duly executed
counterparts of the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five business
days prior to the Closing Date, the statements contained in
the letter delivered pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
Default (or an event which, with the giving of notice or the
passage of time or both, would constitute a Default) under
the Mortgage shall have occurred.
(k) Between the date hereof and the Closing Date,
neither Moody's Investors Service, Inc. nor Standard and
Poor's Ratings Group shall have lowered its rating of the
Company's outstanding General and Refunding Mortgage Bonds
or First Mortgage Bonds in any respect.
(l) Between the date hereof and the Closing Date, no
other event shall have occurred with respect to or otherwise
affecting the Company, which, in the reasonable opinion of
the Underwriters, materially impairs the investment quality
of the Bonds.
(m) All legal matters in connection with the issuance
and sale of the Bonds shall be satisfactory in form and
substance to Counsel for the Underwriters.
(n) The Company will furnish the Underwriters with
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 any other party, except as otherwise provided in
paragraph (g) of Section 6 and in Section 10.
SECTION 8. Conditions of the Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424(b) prior to 5:30 P.M., New York time, on the second
business day following the date of this Underwriting
Agreement, or such other time and date determined by the
Company and approved by the Underwriters.
(b) No stop order suspending the effectiveness of the
First 1992 Registration Statement, the Second 1992
Registration Statement or the Registration Statement shall
be in effect at or prior to the Closing Date, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date.
(c) At the Closing Date, there shall have been issued,
and there shall be in full force and effect, to the extent
legally required for the issuance and sale of the Bonds, an
order of the Commission under the 1935 Act authorizing the
issuance and sale of the Bonds and the execution of the
Supplemental Indenture on the terms set forth in, or
contemplated by, this Underwriting Agreement.
In case any of the conditions specified in this Section
shall not have been fulfilled, this Underwriting Agreement may be
terminated by the Company upon notice thereof to [Lead
Underwriter], provided that, in the case of paragraph (a) above,
the Company shall have used its best efforts to comply with the
requirements of Rule 424(b). Any such termination shall be
without liability of any party to any 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 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
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 First 1992 Registration
Statement, the Second 1992 Registration Statement or the
Registration Statement, as amended or supplemented, or the
omission or alleged omission to state therein a material
fact necessary to make the statements therein not
misleading, or upon an untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus (if used prior to the date the Prospectus is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424), or in the Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall
have been made), or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement
contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon, any such untrue statement or
alleged untrue statement, or any such omission or alleged
omission, if such statement or omission were 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 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 First 1992
Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus or
any amendment or supplement to any thereof or arising out
of, or based upon, statements in or omissions from that part
of the Second 1992 Registration Statement or the
Registration Statement which shall constitute the statements
of eligibility under the Trust Indenture Act of the
Trustees; and provided further, that the indemnity agreement
contained in this subsection shall not inure to the benefit
of any Underwriter or to the benefit of any person
controlling any Underwriter on account of any such losses,
claims, damages, liabilities, expenses or actions arising
from the sale of Bonds to any person in respect of the Basic
Prospectus or the Prospectus, as supplemented or amended
(excluding in both cases, however, any document then
incorporated or deemed incorporated by reference therein
pursuant to Item 12 of Form S-3), furnished by any
Underwriter to a person to whom any of the Bonds were sold,
insofar as such indemnity relates to any untrue or
misleading statement or omission made in the Basic
Prospectus or the Prospectus but eliminated or remedied
prior to the consummation of such sale in the Prospectus, or
any amendment or supplement thereto furnished pursuant to
Section 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 General and
Refunding Mortgage Bonds other than the Bonds or to shares
of Preferred Stock and any document 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 any of 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 First 1992 Registration Statement, the
Second 1992 Registration Statement or 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 the
Prospectus, as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, in each case, if (but
only if) such statement or omission were 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 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 of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement or the Prospectus, or any amendment
or supplement thereto.
(c) In case any action shall be brought, based upon
the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement, the
Basic Prospectus or the Prospectus (including amendments or
supplements thereto), against any party or parties in
respect of which indemnity may be sought pursuant to any of
the preceding paragraphs, such party or parties (hereinafter
called the indemnified party) shall promptly notify the
party or parties against whom indemnity shall be sought
hereunder (hereinafter called the indemnifying party) in
writing, and the indemnifying party shall have the right to
participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other
indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses.
If the indemnifying party shall elect not to assume the
defense of any such action, the indemnifying party shall
reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by such indemnified party.
Such indemnified party shall have the right to employ
separate counsel in any such action in which the defense has
been assumed by the indemnifying party and participate in
the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel has been specifically
authorized by the indemnifying party or (ii) the named
parties to any such action (including any impleaded parties)
include each of such indemnified party and the indemnifying
party and such indemnified party shall have been advised by
such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and
for this reason it is not desirable for the same counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the indemnifying
party shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable
judgment), which firm (or firms), in the case of any of the
Underwriters being the indemnified party, shall be
designated in writing by [Lead Underwriter]. 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.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable
to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Bonds
or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions
which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
proceeds from the offering (after deducting underwriting
discounts and commissions but before deducting expenses) to
the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus.
The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or by any of the Underwriters and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable to an indemnified party as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter 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 of, and the
representations and warranties and other agreements of the
Company contained in, this Underwriting Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or by or on
behalf of the Company or its directors or officers, or any of the
other persons referred to in Section 9 hereof and (ii) acceptance
of and payment for the Bonds and (b) the indemnity and
contribution agreements contained in Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Underwriting Agreement.
SECTION 11. Default of Underwriters. If either Underwriter
shall fail or refuse (otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder) to purchase and pay
for the principal amount of Bonds which it has agreed to purchase
and pay for hereunder, and the aggregate principal amount of
Bonds which such defaulting Underwriter agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Bonds, the other Underwriter shall be
obligated to purchase the Bonds which such defaulting Underwriter
agreed but failed or refused to purchase; provided that in no
event shall the principal amount of Bonds which any Underwriter
has agreed to purchase pursuant to Schedule I hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth
of such principal amount of Bonds without the written consent of
such Underwriter. If any Underwriter shall fail or refuse to
purchase Bonds and the aggregate principal amount of Bonds with
respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Bonds, the Company shall
have the right (a) to require the non-defaulting Underwriter to
purchase and pay for the respective principal amount of Bonds
that it had severally agreed to purchase hereunder, and, in
addition, the principal amount of Bonds that the defaulting
Underwriter shall have so failed to purchase up to a principal
amount thereof equal to one-ninth of the respective principal
amount of Bonds that such non-defaulting Underwriter had
otherwise agreed to purchase hereunder, and/or (b) to procure one
or more others, members of the NASD (or, if not members of the
NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales
to comply with the NASD's Rules of Fair Practice), to purchase,
upon the terms herein set forth, the principal amount of Bonds
that such defaulting Underwriter had agreed to purchase, or that
portion thereof that the remaining Underwriter shall not be
obligated to purchase pursuant to the foregoing clause (a). In
the event the Company shall exercise its rights under clause (a)
and/or (b) above, the Company shall give written notice thereof
to the Underwriters within 24 hours (excluding any Saturday,
Sunday, or legal holiday) of the time when the Company learns of
the failure or refusal of any Underwriter to purchase and pay for
its respective principal amount of Bonds, and thereupon the
Closing Date shall be postponed for such period, not exceeding
three business days, as the Company shall determine. In the
event the Company shall be entitled to but shall not elect
(within the time period specified above) to exercise its rights
under clause (a) and/or (b), the Company shall be deemed to have
elected to terminate this Underwriting Agreement. In the absence
of such election by the Company, this Underwriting Agreement
will, unless otherwise agreed by the Company and the non-
defaulting Underwriter, terminate without liability on the part
of any non-defaulting party except as otherwise provided in
paragraph (g) of Section 6 and in Section 10. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of its default under this Underwriting
Agreement.
SECTION 12. Termination. This Underwriting Agreement shall
be subject to termination by notice given by written notice from
[Lead Underwriter] to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended on the New
York Stock Exchange by the New York Stock Exchange, Inc., the
Commission or other governmental authority, (ii) minimum or
maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the New York Stock Exchange,
Inc., the Commission or other governmental authority, (iii) a
general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or any calamity or crisis
that, in the judgment of the Underwriters, is material and
adverse and (b) in the case of any of the events specified in
clauses (a) (i) through (iv), such event singly or together with
any other such event makes it, in the reasonable judgment of the
Underwriters, impracticable to market the Bonds. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Lead Underwriter] as provided above, if, in the
judgment of the Underwriters, the subject matter of any amendment
or supplement (prepared by the Company) to the Prospectus (except
for information relating solely to the manner of public offering
of the Bonds or to the activity of any Underwriter or
Underwriters or to the terms of any series of General and
Refunding Mortgage Bonds not included in the Bonds or to shares
of the Preferred Stock) filed or issued after the effectiveness
of this Underwriting Agreement by the Company shall have
materially impaired the marketability of the Bonds. Any
termination hereof, pursuant to this Section 12, shall be without
liability of any party to any 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 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 become effective at the time a fully-
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Bonds from the Underwriters.
SECTION 14. Notices. All communications hereunder shall be
in writing and, if to the Underwriters, shall be mailed or
delivered to [Lead Underwriter] (to the attention of its General
Counsel) at the address set forth at the beginning of this
Underwriting Agreement or, if to the Company, shall be mailed or
delivered to it at 308 East Pearl Street, Jackson, Mississippi
39201, 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,
MISSISSIPPI POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [LEAD UNDERWRITER]
By:
Name:
Title:
<PAGE>
SCHEDULE I
Mississippi Power & Light Company
$_____________________
General and Refunding Mortgage Bonds
______% Series due ______ __, _____
Name Amount
[LEAD UNDERWRITER] $______________
[LEAD UNDERWRITER]
$______________
_______________
Total $______________
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We are General Counsel for Mississippi Power & Light Company
(the "Company") and have acted in that capacity in connection
with the issuance and sale by the Company to you, pursuant to the
agreement effective ______ __, _____ (the "Underwriting
Agreement"), between the Company and you, of $________ in
aggregate principal amount of its General and Refunding Mortgage
Bonds, ____% Series due _____________ _____, ______ (the
"Bonds"), issued pursuant to the Company's Mortgage and Deed of
Trust, dated as of February 1, 1988, as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, including the _____ Supplemental Indenture
(the "Supplemental Indenture") dated as of __________ ____,
_____, (the Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage").
This opinion is rendered to you at the request of the Company.
We are familiar with the organization of the Company, the
Restated Articles of Incorporation and By-Laws of the Company,
both as amended, and the records of various corporate and other
proceedings relating to the authorization, issuance and sale of
the Bonds. We have participated in the preparation of or have
examined and are familiar with (a) the Mortgage; (b) the
Underwriting Agreement; (c) the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus filed under the
Securities Act; and (d) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (the application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration").
We have examined the orders of the Commission (or
appropriate evidence thereof) relating to the effectiveness of
the First 1992 Registration Statement, the Second 1992
Registration Statement, and the Registration Statement, the
qualification of the Mortgage under the Trust Indenture Act and
the Application-Declaration. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary in order to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to the originals of the documents submitted to
us as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company 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.
Upon the basis of our familiarity with the foregoing and
with the Company's properties and affairs generally, and subject
to the foregoing and to the further exceptions and qualifications
set forth below, we are of the opinion that:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) The Company is duly authorized by its Restated
Articles of Incorporation, as amended, to conduct the
utility business which it is described in the Prospectus as
conducting, and possesses adequate, valid and subsisting
franchises, certificates of public convenience and
necessity, licenses and permits in order to, and is duly
qualified to, conduct such business in the States of
Mississippi and Arkansas.
(3) The Company has good and sufficient title to the
properties described as owned by it in and as subject to the
lien of the Mortgage (except properties released under the
terms of the Mortgage), subject only to Excepted
Encumbrances as defined in the Mortgage and to minor defects
and encumbrances customarily found in properties of like
size and character that do not, in our opinion, materially
impair the use of such properties affected thereby in the
conduct of the business of the Company. All permanent
physical properties and franchises (other than those
expressly excepted) acquired by the Company after the date
of the Supplemental Indenture, will, upon such acquisition,
become subject to the lien of the Mortgage, subject,
however, to Excepted Encumbrances and to liens, if any,
existing or placed thereon at the time of the acquisition
thereof by the Company and except as limited by bankruptcy
law.
(4) The Mortgage constitutes a valid and direct lien
on all of the Mortgaged and Pledged Property (as defined in
the Mortgage), subject only to minor defects of the
character aforesaid and Excepted Encumbrances. The
description of the Mortgaged and Pledged Property set forth
in the Mortgage is adequate to constitute the Mortgage a
lien on the Mortgaged and Pledged Property. The filing for
recording of the Mortgage in the offices of the Chancery
Clerks of each County in Mississippi in which the Company
holds real property, and the recording of the Mortgage in
the office of the Circuit Clerk of Independence County,
Arkansas, which filings or recordings will be duly effected,
and the filing of Uniform Commercial Code Financing
Statements covering the personal property and fixtures
described in the Mortgage as subject to the lien thereof in
the offices of the Secretary of State of the State of
Mississippi, the Secretary of State of the State of
Arkansas, and the Secretary of State of the State of
Wyoming, which filings will be duly effected, are the only
recordings, filings, rerecordings and refilings required by
law in order to protect and maintain the lien of the
Mortgage on any of the property described therein and
subject thereto.
(5) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
which laws do not, in our opinion, make inadequate remedies
necessary for the realization of the benefits of such
security, and (ii) as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization 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) and is qualified under the
Trust Indenture Act, and no proceedings to suspend such
qualification have been instituted or, to our knowledge,
threatened by the Commission.
(6) The Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and are entitled to the benefit of the security
afforded by the Mortgage.
(7) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] insofar as
they purport to constitute summaries of the documents
referred to therein, or of the benefits purported to be
afforded by such documents (including, without limitation,
the lien of the Mortgage), constitute accurate summaries of
the terms of such documents and of such benefits in all
material respects.
(8) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(9) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, at the respective
times of their effectiveness, and the Prospectus, at the
time first filed with 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
Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we are not
passing) 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
First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement have
become and are effective under the Securities Act; and, to
the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(10) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to
become effective the Application-Declaration with respect to
the issuance and sale of the Bonds; to the best of our
knowledge, said order is in full force and effect; such
order is sufficient to authorize the issuance and sale of
the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent
or other order of any governmental body (other than in
connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement.
(11) The issuance and sale by the Company of the Bonds
and the execution, delivery and performance by the Company
of the Underwriting Agreement and the Mortgage (a) will not
violate any provision of the Company's Restated Articles of
Incorporation or By-laws, each as amended, (b) will not
violate any provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance on or security interest in (except as
contemplated by the Mortgage) any of the assets of the
Company pursuant to the provisions of, any mortgage,
indenture, contract, agreement or other undertaking known to
us (having made due inquiry with respect thereto) to which
the Company is a party or which purports to be binding upon
the Company or upon any of its assets, and (c) will not
violate any provision of any Mississippi law or regulation
applicable to the Company (other than the Mississippi
securities or "blue sky" laws, upon which we are not
passing) 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.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, 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 7
above. In connection with the preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement
or 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 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 belief as
to the financial statements or other financial or statistical
data included or incorporated by reference in the First 1992
Registration Statement, the Second 1992 Registration Statement,
the Registration Statement or the Prospectus, as to the parts of
the Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of the
Trustees under the Mortgage or as to the information contained in
the Prospectus under the caption ["Description of the New G&R
Bonds - Book-Entry G&R Bonds".]
We have examined the portions of the information contained
in the First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement that are
stated therein to have been made on our authority, and we believe
such information to be correct. We have also 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.
We are members of the Mississippi Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Arkansas, Wyoming and New York law, we have
relied, with your approval, in the case of Arkansas law, upon the
opinion of even date herewith addressed to us and to you of
Friday, Eldredge & Clark of Little Rock, Arkansas, in the case of
Wyoming law, upon the opinion of even date herewith addressed to
us and to the Company of Kline & Jenkins, of Cheyenne, Wyoming,
and, in the case of New York law, upon the opinion of even date
herewith of Reid & Priest LLP of New York, New York.
The opinion set forth above is solely for the benefit of the
addressees of this letter 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 and Wyoming
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 Friday, Eldredge & Clark]
_____ __, _____
WISE CARTER CHILD & CARAWAY
Professional Association
Post Office Box 651
Jackson, Mississippi 39205
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
In connection with the issuance and sale by Mississippi
Power & Light Company ("Company") of $_______ in aggregate
principal amount of its General and Refunding Mortgage Bonds,
____% Series due ______ __, ______ (the "Bonds"), pursuant to the
Company's Mortgage and Deed of Trust dated as of February 1,
1988, as heretofore amended and supplemented by all indentures
amendatory thereof and supplemental thereto including the _______
Supplemental Indenture, dated as of _____ __, ______ (the
Mortgage and Deed of Trust as so amended and supplemented being
hereinafter referred to as the "Mortgage"), we, as special
Arkansas counsel to the Company, have examined such documents,
records and certificates and have reviewed such questions of law
as we have deemed necessary and appropriate for the purpose of
this opinion. This opinion is rendered to you at the request of
the Company.
In order to render this opinion, we have assumed that the
Company does not own any real or personal property or other
facilities in the State of Arkansas, except for an undivided
twenty-five percent (25%) ownership interest in the Independence
Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail
customers in the State of Arkansas. We have also assumed that
the issuance and sale of the Bonds have had significant contacts
with the State of New York.
Based upon the foregoing and subject to the foregoing and to
the further exceptions and qualifications set forth below, we are
of the opinion that:
1. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws
of the State of Arkansas and holds adequate and subsisting
franchises, certificates of public convenience and
necessity, licenses and permits to permit it to conduct its
business as presently conducted in Arkansas.
2. The courts of Arkansas will enforce any provision
in the Mortgage, the Bonds and the Underwriting Agreement,
stipulating that the laws of the State of New York shall
govern the Mortgage, the Bonds and the Underwriting
Agreement, except to the extent that the validity or
perfection of the lien of the Mortgage, or remedies
thereunder, are governed by the laws of a jurisdiction other
than the State of New York, except, with respect to
enforcement of the Mortgage, as the same may be limited by
the laws of the State of Arkansas affecting the remedies for
the enforcement of the security provided for therein, which
laws do not, in our opinion, make inadequate remedies
necessary for the realization of the benefits of such
security.
3. There are no authorizations, approvals, consents or
orders of any governmental authority in the State of
Arkansas (other than in connection or compliance with the
provisions of the securities or "blue sky" laws as to which
no opinion is expressed herein) legally required for the
execution, delivery and performance by the Company of the
Underwriting Agreement or to permit the issuance and sale by
the Company of the Bonds pursuant to the Underwriting
Agreement.
4. Substantially all physical properties located in
the State of Arkansas (other than those expressly excepted)
which have been or hereafter may be acquired by the Company
have been or, upon such acquisition, will become subject to
the lien of the Mortgage, subject, however, to Excepted
Encumbrances (as defined in the Mortgage) and to liens,
defects, and encumbrances, if any, existing or placed
thereon at the time of the acquisition thereof by the
Company and except as limited by bankruptcy law.
5. The Company has good and sufficient legal right,
title and interest in and to the Mortgaged and Pledged
Property (as defined in the Mortgage) located in the State
of Arkansas free and clear of any lien or encumbrance except
for the lien of the Mortgage and for Excepted Encumbrances
(as defined in the Mortgage), and except for minor defects
and encumbrances customarily found in physical properties of
like size and character which do not, in our opinion,
materially impair the use of such properties affected
thereby in the conduct of the business of the Company. Our
opinion in the first sentence of this paragraph 5 is subject
to the following:
We have, with your consent, performed the following
procedures and relied upon the following:
(a) a Limited Title Search performed by
Independence County Abstract Company, Inc., covering
the period from September 10, 1981 to _____ __, _____;
(b) a review by Independence County Abstract Company,
Inc. of the Grantor/Grantee indices of volumes in the
real estate records of Independence County, Arkansas in
which transactions that would affect the Company's
title to its property located in such County would be
recorded; (c) a review of the Plaintiff/Defendant
indices of official records of the Circuit Court and
Chancery Court of Independence County, Arkansas and of
the United States District Court for the Eastern
District of the State of Arkansas, in each case for
civil suits currently pending therein; and (d) a
certificate of the Secretary of State of the State of
Arkansas reflecting the results of a search of the
records maintained by such official pursuant to Act 375
of the Acts of Arkansas of 1965 (the Arkansas
Transmitting Utility Act).
6. The description of the Mortgaged and Pledged
Property (as defined in the Mortgage) which is located in
the State of Arkansas, as set forth in the Mortgage, is
adequate to constitute a lien on such Mortgaged and Pledged
Property. The recording of the Mortgage among the land
records in the office of the Circuit Clerk of Independence
County, Arkansas, which recording will be duly effected, and
the filing of Uniform Commercial Code financing statements
covering the personal property and fixtures described in the
Mortgage subject to the lien thereof in the office of the
Secretary of State of the State of Arkansas, which filing
will be duly effected, are the only recordings, filings, re-
recordings or refilings required by Arkansas law in order to
protect and maintain the lien of the Mortgage on any
Arkansas property described therein and subject thereto.
We are members of the Arkansas Bar, and we express no
opinion on the laws of any jurisdiction other than the State of
Arkansas.
The opinion set forth above is solely for the benefit of the
addressees of this letter 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
Winthrop, Stimson, Putnam & Roberts and Reid & Priest LLP may
rely on this opinion as to all matters of Arkansas law.
Sincerely,
FRIDAY, ELDREDGE & CLARK
<PAGE>
EXHIBIT C
[Letterhead of Reid & Priest LLP]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
With reference to the issuance and sale by Mississippi Power
& Light Company (the "Company") to you, pursuant to the agreement
effective _____ __, _____ (the "Underwriting Agreement"), between
the Company and you, of $__________ in aggregate principal amount
of its General and Refunding Mortgage Bonds, ____% Series due
_____ __, _____ (the "Bonds"), issued under the Company's
Mortgage and Deed of Trust, dated as of February 1, 1988, as
heretofore amended and supplemented by all indentures amendatory
thereof and supplemental thereto, including the ______
Supplemental Indenture dated as of _____ __, _____________ (the
Mortgage and Deed of Trust as so supplemented being hereinafter
called the "Mortgage"), we advise you that we are of counsel to
the Company and in that capacity have participated in the
preparation of or have examined and are familiar with (1) the
Mortgage; (2) the First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement and the
Prospectus filed under the Securities Act; (3) the Underwriting
Agreement; and (4) the application-declaration, and all
amendments thereto, filed by the Company with the Commission
under the 1935 Act, with respect to the issuance and sale of the
Bonds (such application-declaration, as amended by all such
amendments, being hereinafter referred to as the "Application-
Declaration"). This opinion is rendered to you at the request of
the Company.
We have participated in the preparation of or reviewed the
corporate proceedings with respect to the issuance and sale of
the Bonds. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed
necessary to enable us to render this opinion. In such
examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals,
and the conformity to originals of the documents submitted to us
as certified or photostatic copies. We have not examined the
Bonds, except a specimen thereof, and we have relied upon a
certificate of Bank of Montreal Trust Company 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.
Based upon the foregoing, and subject to the foregoing and
to the further exceptions and qualifications set forth below, we
are of the opinion that:
(1) The Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein,
and (ii) as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization 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) and is 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 Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security
afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] 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 Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Except as to the financial statements and other
financial or statistical data included or incorporated by
reference therein, upon which we do not pass, the First 1992
Registration Statement, the Second 1992 Registration
Statement and the Registration Statement, at the respective
times of their effectiveness, and the Prospectus, at the
time first filed with 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
Second 1992 Registration Statement and the Registration
Statement that constitute the statements of eligibility of
the Trustees under the Mortgage, upon which we are not
passing) 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
First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement have
become and are effective under the Securities Act; and, to
the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
(6) An appropriate order has been entered by the
Commission under the 1935 Act granting and permitting to
become effective the Application-Declaration with respect to
the issuance and sale of the Bonds; to the best of our
knowledge, said order is in full force and effect; such
order is sufficient to authorize the issuance and sale of
the Bonds by the Company pursuant to the Underwriting
Agreement; and no further approval, authorization, consent
or other order of any governmental body (other than in
connection or compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction) is
legally required to permit the issuance and sale of the
Bonds by the Company pursuant to the Underwriting Agreement.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information contained or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, 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 preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with other counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information which gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement or
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 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
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement or the Prospectus, as to
the parts of the Second 1992 Registration Statement and the
Registration Statement that constitute the statements of
eligibility of the Trustees under the Mortgage or as to the
information contained in the Prospectus under the caption
["Description of the New G&R Bonds - Book-Entry G&R Bonds".]
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of any other state. As to all matters
of Mississippi and Wyoming law, we have relied upon the opinion
of even date herewith addressed to you by Wise Carter Child &
Caraway, Professional Association, of Jackson, Mississippi, the
Company's General Counsel, and as to all matters of Arkansas law,
we have relied upon the opinion of even date herewith addressed
to you by Friday, Eldredge & Clark, special Arkansas counsel to
the Company. We have not examined into and are not passing upon
matters relating to incorporation of the Company, titles to
property, franchises or the lien of the Mortgage.
The opinion set forth above is solely for the benefit of the
addressees of this letter 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 all matters of New York law in rendering
its opinion required to be delivered under the Underwriting
Agreement.
Very truly yours,
REID & PRIEST LLP
<PAGE>
EXHIBIT D
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_____ __, _____
[UNDERWRITERS]
c/o [LEAD UNDERWRITER]
[ADDRESS]
Ladies and Gentlemen:
We have acted as counsel for you as the several underwriters
of $________ in aggregate principal amount of General and
Refunding Mortgage Bonds, ____% Series due _____ ___, _____ (the
"Bonds"), issued by Mississippi Power & Light Company (the
"Company") under the Company's Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore amended and supplemented by
all indentures amendatory thereof and supplemental thereto,
including the _____ Supplemental Indenture dated as of _____ __,
____ (said Mortgage and Deed of Trust as so amended and
supplemented being hereinafter referred to as the "Mortgage"),
pursuant to the agreement between you and the Company effective
_____ __, _____ (the "Underwriting Agreement").
We are members of the New York bar 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 an
opinion of even date herewith addressed to you by Wise Carter
Child & Caraway, Professional Association, of Jackson,
Mississippi, General Counsel for the Company, as to the matters
covered in such opinion relating to Mississippi and Wyoming law,
and an opinion of Friday, Eldredge & Clark, of Little Rock,
Arkansas, special Arkansas counsel to the Company, as to the
matters covered in such opinion relating to Arkansas law. 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.
We have also examined such documents and satisfied ourselves
as to such other matters as we have deemed necessary in order to
enable us to express this opinion. As to various questions of
fact material to this opinion, we have relied upon
representations of the Company and statements in the First 1992
Registration Statement, the Second 1992 Registration Statement
and the Registration Statement. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to
the originals of the documents submitted to us as certified or
photostatic copies. We have not examined the Bonds, except a
specimen thereof, and we have relied upon a certificate of Bank
of Montreal Trust Company as to the 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, titles to property, franchises or the lien of the
Mortgage. 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 Mortgage has been duly and validly authorized
by all necessary corporate action on the part of the
Company, has been duly and validly executed and delivered by
the Company, is a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms, except (i) as the same may be limited by the laws of
the States of Mississippi, Arkansas and Wyoming, where the
property covered thereby is located, affecting the remedies
for the enforcement of the security provided for therein and
(ii) as the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization 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) and is 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 Bonds are legal, valid and binding obligations
of the Company enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefit of the security
purported to be afforded by the Mortgage.
(3) The statements made in the Prospectus under the
captions ["Description of the New G&R Bonds,"] 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 Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) An appropriate order has been entered by the
Commission under the 1935 Act, granting and permitting to
become effective the application-declaration, as amended,
filed by the Company with the Commission under the 1935 Act
with respect to the issuance and sale of the Bonds; to the
best of our knowledge, said order is in full force and
effect; such order is sufficient to authorize the issuance
and sale of the Bonds by the Company pursuant to the
Underwriting Agreement; and no further approval,
authorization, consent or other order of any governmental
body (other than in connection or compliance with the
provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required to permit the issuance and
sale of the Bonds by the Company pursuant to the
Underwriting Agreement.
(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 First 1992 Registration Statement, the Second 1992
Registration Statement and the Registration Statement, at
the respective times of their effectiveness, and the
Prospectus, at the time first filed with 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 Second 1992 Registration Statement and
the Registration Statement that constitute the statements of
eligibility of the Trustees under the Mortgage, upon which
we are not passing) 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 First 1992 Registration Statement, the Second
1992 Registration Statement and the Registration Statement
have become and are effective under the Securities Act; and,
to the best of our knowledge, no stop order suspending the
effectiveness of the First 1992 Registration Statement, the
Second 1992 Registration Statement or the Registration
Statement has been issued and no proceedings for a stop
order with respect thereto are pending or threatened under
Section 8(d) of the Securities Act.
In passing upon the forms of the First 1992 Registration
Statement, the Second 1992 Registration Statement, the
Registration Statement and the Prospectus, we necessarily assume
the correctness, completeness and fairness of the statements made
by the Company and information included or incorporated by
reference in the First 1992 Registration Statement, the Second
1992 Registration Statement, 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 preparation by the Company of the
First 1992 Registration Statement, the Second 1992 Registration
Statement, the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, with counsel for the Company, with the
independent certified public accountants of the Company who
audited or reviewed the financial statements included or
incorporated by reference in the First 1992 Registration
Statement, the Second 1992 Registration Statement and the
Registration Statement, and with your representatives. Our
review of the First 1992 Registration Statement, the Second 1992
Registration Statement, the Registration Statement and the
Prospectus and our discussions did not disclose to us any
information that gives us reason to believe that the First 1992
Registration Statement, the Second 1992 Registration Statement or
the Registration Statement or 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 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 First 1992 Registration Statement, the Second
1992 Registration Statement, the Registration Statement or the
Prospectus, as to the parts of the Second 1992 Registration
Statement and the Registration Statement that constitute the
statements of eligibility of the Trustees under the Mortgage or
as to the information contained in the Prospectus under the
caption ["Description of the New G&R Bonds - Book-Entry G&R
Bonds".]
This opinion is solely for the benefit of the addressees
hereof in connection with the Underwriting Agreement and the
transactions contemplated thereunder and may not be relied upon
in any manner by any other person or for any other purpose,
without our prior written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT E
ITEMS PURSUANT TO SECTION 7(f)(iv) OF THE
UNDERWRITING AGREEMENT FOR INCLUSION IN THE
LETTER OF THE ACCOUNTANTS REFERRED TO THEREIN
CAPTION PAGES ITEMS
Exhibit B-3
_______________, 1996
To prospective purchasers of Preferred Stock,
Stock, Cumulative, $100 Par Value of
Mississippi Power & Light Company
Gentlemen:
Mississippi Power & Light Company ("Company") expects
to issue and sell in one or more series at one time or from
time to time in the aggregate not to exceed 750,000 shares
of its Preferred Stock, Cumulative, $100 Par Value (the
"Stock"). The Company will receive proposals for all or
such portion of the Stock as may be designated by the
Company to prospective purchasers.
Enclosed please find copies of a prospectus dated
___________________ ("Prospectus") relating to
$__________________ aggregate par value of the Company's
Preferred Stock, a questionnaire to be used in furnishing
certain information to the Company and an Underwriting
Agreement for use in submitting a proposal. You may obtain
copies of the registration statement relating to the Stock
and of the documents incorporated by reference in the
prospectus by contacting _________________________
____________________________________________________________
_____.
The Company will give notice ("Notice") to two or more
of the following prospective purchasers: Morgan Stanley &
Co. Incorporated. Merrill Lynch & Co., Goldman, Sachs & Co.,
Salomon Brothers Inc., The First Boston Corporation, Smith
Barney Harris Upham & Co. Incorporated, Stephens Inc.,
Prudential Securities, Inc., Shearson Lehman Brothers, Inc.,
Morgan Keegan & Co., Inc., Bear, Stearns & Co., Inc., and
Robert W. Baird & Co. Incorporated at least two (2) hours
prior to the time proposals are to be submitted of (i) the
number of shares being offered; (ii) the initial dividend
payment date for the Stock and the date from which dividends
shall be cumulative; (iii) whether the terms of the Stock
will include a sinking fund, and if so, the terms thereof;
(iv) the date, time and location for the submission of
proposals; (v) the manner in which proposals are to be
submitted; and (vi) whether the redemption provisions
described in Appendix A hereto will be applicable to the
Stock and the terms of any other redemption provisions as
may be applicable. The Company will also make available
prior to the time proposals are to be submitted a
description of the procedures that will be used by the
Company to determine the winning proposal. Various basic
terms relating to the Stock are set forth in Appendix A
hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-1000),
is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Stock under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
MISSISSIPPI POWER & LIGHT COMPANY
By: _________________________________
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
MISSISSIPPI POWER & LIGHT COMPANY
Summary of Terms
Relating to the Purchase of Preferred Stock, Cumulative,
$100 Par Value
of a Particular Series
Number of Shares To be designated by the Company in the
Notice.
Par Value $100 per share
Dividend Rate The Dividend Rate, expressed as a
percentage of par value, shall be as set
forth in the Underwriting Agreement
submitted by the successful purchaser or
purchasers and shall be a multiple of
0.04% (1/25th of 1%).
Dividend Rights See the accompanying Prospectus relating
to the Stock.
Price to the Company Not less than $100.00 nor more than
$102.75 per share, plus accumulated
dividends, if any, at the Dividend Rate,
as set forth in the Underwriting
Agreement submitted by the successful
purchaser or purchasers.
Purchasers' In the event of a reoffering of the
Compensation Stock, the Company shall pay to the
successful purchaser or purchasers, for
its or their services in purchasing and
making a reoffering of the Stock, the
amount per share of compensation
specified in the Underwriting Agreement
submitted by such purchaser or
purchasers, provided that the proceeds
received by the Company from the sale of
the Stock, less the purchasers'
compensation, shall not be less than 95%
of the aggregate price to the Company for
the Stock.
Sinking Fund If the Notice so states, the Stock will
be subject to a sinking fund as set forth
in the Notice.
Redemption Provisions Unless otherwise stated in the Notice,
the following redemption provisions shall
be applicable: For the purpose of
determining the redemption prices of the
Stock, the term "purchase price" shall
mean the per share price (exclusive of
accumulated dividends, if any) to be paid
by the successful purchaser or purchasers
to the Company for the Stock.
(i) If the Stock is subject to a sinking
fund as designated by the Company in the
Notice, the redemption price per share of
the Stock shall be, if the date of
redemption is on or before the first day
of the calendar month in which the first
anniversary of the date of issue of the
Stock occurs, the purchase price per
share plus an amount equal to the annual
dollar amount per share of the dividend,
and thereafter such redemption price will
decline in each subsequent annual period
in equal decrements to par value, for and
during the annual period commencing with
the second day of the calendar month in
which the anniversary of the date of
issue of the Stock occurs and ending on
the date on which all shares of the Stock
are to be redeemed pursuant to the
mandatory requirements of the sinking
fund; in each case, plus unpaid
accumulated dividends to the date of
redemption.
(ii) If the Stock is not subject to a
sinking fund as designated by the Company
in the Notice, the redemption prices of
the Stock per share shall be the purchase
price per share plus an amount equal to:
(a) the annual dollar amount per share of
the dividend if the date of redemption is
on or before the first day of the
calendar month in which the fifth
anniversary of the date of issue of the
Stock occurs; (b) 75% of the annual
dollar amount per share of the dividend
thereafter through the first day of the
calendar month in which the tenth
anniversary of the date of issue of the
Stock occurs; (c) 50% of the annual
dollar amount per share of the dividend
thereafter through the first day of the
calendar month in which the fifteenth
anniversary of the date of issue of the
Stock occurs; or (d) 25% of the annual
dollar amount per share of the dividend
thereafter, in each case plus unpaid
accumulated dividends to the date of
redemption.
The Company may determine to limit for a
period of years as set forth in the
Notice its ability to redeem shares of
the Stock if such redemption is for the
purpose or in anticipation of refunding
such shares through the use, directly or
indirectly, of funds borrowed by the
Company or through the use, directly or
indirectly, of funds derived through the
issuance by the Company of stock ranking
prior to or on a parity with the Stock as
to dividends or assets, if such borrowed
funds have an effective interest cost to
the Company (computed in accordance with
generally accepted financial practice) or
such stock has an effective dividend cost
to the Company (so computed) of less than
the "effective dividend cost"* (stated as
a multiple of 0.0001 of 1%) to the
Company of the Stock.
If, in any case, a redemption price of
Stock shall not be a multiple of one
cent, such price shall be adjusted by
increasing it to the next higher multiple
of one cent.
If the foregoing redemption provisions
shall not be applicable, the Company will
specify in the Notice the applicable
redemption provisions, which could
include, for example, an absolute
prohibition on redemption for a period of
years or during such time that the
applicable series of Stock is
outstanding.
Liquidation Rights See the accompanying Prospectus relating
to the Stock.
Voting Rights See the accompanying Prospectus relating
to the Stock.
Registration No. 33-__________
Statement
Miscellaneous For further information regarding the
terms of the Stock, please refer to the
accompanying Prospectus relating to the
Stock.
The Underwriting Agreement submitted by
the successful purchaser or purchasers
shall, upon acceptance by the Company,
become effective as and constitute the
agreement between the Company and such
purchaser or purchasers covering the sale
and purchase of the Stock.
_______________________________
* (a) If the Stock is not subject to a sinking fund as
designated by the Company in the Notice, the "effective
dividend cost" will be determined by multiplying the
Dividend Rate by the aggregate par value of the Stock, and
dividing the product of such numbers by a number equal to
the amount of the proceeds to be received by the Company
from the sale of the Stock less the compensation, if any, to
be paid by the Company to the successful purchaser or
purchasers.
(b) If the Stock is subject to a sinking fund as designated
by the Company in the Notice, the "effective dividend cost"
will be determined as twelve times the monthly rate
necessary to discount payments to be made by the Company on
the Stock (dividends and mandatory sinking fund obligations,
including accumulated dividends, if any) to amounts which in
the aggregate equal the amount of the proceeds to be
received by the Company from the sale of the Stock less the
compensation, if any, to be paid by the Company to the
successful purchaser or purchasers. For purposes of this
calculation, the aggregate par value of the Stock shall be
deemed to be reduced from time to time by the mandatory
sinking fund obligations with respect to the Stock.
Exhibit B-5
[GOVERNMENTAL AUTHORITY]
to
___________________________________________,
Trustee
__________________
TRUST INDENTURE
__________________
Dated as of ________ __, ____
__________________
____________________ Bonds, ____ Series
(Mississippi Power & Light Company Project)
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Trust Indenture)
Page
PARTIES 1
RECITALS 1
Form of Bond 3
Form of Trustee's Certificate of Authentication 5
Form of Validation Certificate 5
Form of Assignment 10
GRANTING CLAUSE 11
ARTICLE I
DEFINITIONS 13
ARTICLE II
The Bonds
SECTION 2.01.
Authorized Amount of Bonds 13
SECTION 2.02.
Issuance of Bonds 13
SECTION 2.03.
Form of Bonds 14
SECTION 2.04.
Details, Execution and Payment 14
SECTION 2.05.
Authentication; Exchange, Transfer
and Ownership of Bonds 15
SECTION 2.06.
Delivery of Bonds; Application of Proceeds 17
SECTION 2.07.
Temporary Bonds 18
SECTION 2.08.
Mutilated, Destroyed or Lost Bonds 18
SECTION 2.09.
Destruction of Bonds 18
SECTION 2.10.
Book-Entry Only System 18
ARTICLE III
Redemption of Bonds Before Maturity
SECTION 3.01.
Redemption Dates and Prices 20
SECTION 3.02.
Notice of Redemption 21
SECTION 3.03.
Effect of Call for Redemption 22
SECTION 3.04.
Partial Redemption 22
SECTION 3.05.
Funds in Trust; Unclaimed Funds 23
ARTICLE IV
General Covenants
SECTION 4.01.
Payment of Principal, Redemption Premium
if any, and Interest 23
SECTION 4.02.
Performance of Covenants; County 23
SECTION 4.03. 24
Instruments of Further Assurance; Liens
and Encumbrances
SECTION 4.04.
Recordation 24
SECTION 4.05.
Rights Under Agreement 24
SECTION 4.06.
Prohibited Activities 24
ARTICLE V
Revenue and Funds
SECTION 5.01.
Source of Payment of Bonds 25
SECTION 5.02.
Creation of Bond Fund 25
SECTION 5.03.
Payments into the Bond Fund 25
SECTION 5.04.
Use of Moneys in the Bond Fund 26
SECTION 5.05.
Custody of the Bond Fund 26
SECTION 5.06.
Non-presentment of Bonds 26
SECTION 5.07.
Moneys to be Held in Trust 26
SECTION 5.08.
Repayment to the Company from Bond Fund 27
SECTION 5.09.
Creation and Use of the Rebate Fund 27
ARTICLE VI
Investments
SECTION 6.01.
Investment of Moneys 27
ARTICLE VII
Discharge of Indenture
SECTION 7.01.
Discharge of Indenture 29
ARTICLE VIII
Default Provisions and Remedies of Trustee
and Bondholders
SECTION 8.01.
Events of Default 30
SECTION 8.02.
Acceleration 31
SECTION 8.03.
Other Remedies 32
SECTION 8.04.
Legal Proceedings by Trustee 32
SECTION 8.05.
Right of Bondholders to Direct Proceedings 33
SECTION 8.06.
Appointment of Receivers 33
SECTION 8.07.
Waiver 33
SECTION 8.08.
Application of Moneys 34
SECTION 8.09.
Remedies Vested in the Trustee 35
SECTION 8.10.
Rights and Remedies of Bondholders 36
SECTION 8.11.
Termination of Proceedings 36
SECTION 8.12.
Waivers of Events of Default 37
SECTION 8.13.
Opportunity of County and Company to
Cure Defaults Under Section
8.01(c); Notice 37
ARTICLE IX
The Trust
SECTION 9.01.
Acceptance of the Trusts 37
SECTION 9.02.
Fees, Charges and Expenses of Trustee 40
SECTION 9.03.
Notice to Bondholders if Default Occurs 41
SECTION 9.04.
Intervention by Trustee 41
SECTION 9.05.
Successor Trustee 41
SECTION 9.06.
Resignation by Trustee 41
SECTION 9.07.
Removal of Trustee 42
SECTION 9.08.
Appointment of Successor Trustee by the
Bondholders; Temporary Trustee 42
SECTION 9.09.
Concerning Any Successor Trustee 42
SECTION 9.10.
Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent 43
SECTION 9.11.
Trustee and County Required to Accept
Directions and Actions of Company 43
ARTICLE X
Indentures Supplemental Hereto
SECTION 10.01.
Supplemental Indentures Not Requiring
Consent of Bondholders 43
SECTION 10.02.
Supplemental Indentures Requiring Consent
of Bondholders 44
SECTION 10.03.
Trustee Authorized to Join in Supplements;
Reliance on Counsel 45
ARTICLE XI
Amendment of Agreement
SECTION 11.01.
Amendments, etc., to Agreement Not
Requiring Consent of Bondholders 46
SECTION 11.02.
Amendments, etc., to Agreement Requiring
Consent of Bondholders 46
SECTION 11.03.
Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel 46
ARTICLE XII
Miscellaneous
SECTION 12.01.
Consents, etc., of Bondholders 47
SECTION 12.02.
Limitation of Rights 47
SECTION 12.03.
Severability 47
SECTION 12.04.
Notices 48
SECTION 12.05.
Trustee as Paying Agent and Bond Registrar 48
SECTION 12.06.
Payments Due on Sundays and Holidays 48
SECTION 12.07.
Counterparts 48
SECTION 12.08.
Applicable Provisions of Law 48
SECTION 12.09.
Captions 48
SECTION 12.10.
No Liability of County 49
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the _____ day of ________,
______, made and entered into by and between ___________, a
public body corporate and politic and a political subdivision of
the State of __________ (the "County"), and
______________________, a banking corporation duly organized,
existing and authorized to accept and execute trusts of the
character herein set out under the laws of the United States of
America, with its principal office in the __________________,
_________________, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
[Constitution and the laws of the State of Mississippi,
especially Sections 49-17-101 through 49-17-123, Mississippi Code
of 1972, as amended (hereinafter called the "Pollution Control
Act"), to acquire, purchase, construct, enlarge, expand and
improve facilities for eliminating, mitigating, and/or preventing
air and water pollution, to issue revenue bonds to defray the
cost of such facilities, and to execute an agreement with an
industry (as defined in the Pollution Control Act) for the sale
of such facilities to such industry]; and
[WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the County [has heretofore on
______ __, ____, issued $________ principal amount of its
___________ Bonds, Series __ (Mississippi Power & Light Company
Project) (the "Prior Bonds"), of which $_________ principal
amount is now outstanding, pursuant to a Trust Indenture dated as
of ________ __, ____, whereunder _______________ is trustee (the
"Prior Indenture"); and]
[WHEREAS, the Prior Bonds were issued to defray the cost of
acquisition, construction, installation and equipping of certain
air and water pollution control facilities (the "Project") at the
_______________________ (the "Plant") of Mississippi Power &
Light Company, a corporation authorized and existing under the
laws of the State of Mississippi and an "industry" as defined in
the Pollution Control Act (the "Company"), located at
_____________, ________________, _____________, within the
County; the Project was sold by the County to the Company
pursuant to a ____________________ Agreement between the County
and the Company dated as of __________ __, ____ (the "Prior
Agreement"); the Company is now the owner and operator of the
Plant and the Project;]
WHEREAS, at the request of the Company, the County proposes,
pursuant to [Sections 31-15-21 through 31-15-27, Mississippi Code
of 1972, as amended (the "Act"),] a resolution duly and validly
adopted by the County on ________ __, ____ (the "Issuing
Resolution") and this Indenture, to issue its ____________ Bonds,
________ Series (Mississippi Power & Light Company Project) in
the aggregate principal amount of $_________ (the "Bonds") for
the purpose of providing funds, which, together with other funds
to be made available therefor by the Company, will be sufficient
[to refund all of the Prior Bonds now outstanding, including
providing for the payment of any redemption premium due or to
become due thereon, interest to accrue to the selected redemption
date, any sinking fund maturities to become due prior to the
selected redemption date and all expenses in connection with such
refunding;] and
WHEREAS, the County has confirmed and continued the
installment sale of the Project to the Company pursuant to the
terms and conditions of [Facility] Agreement between the County
and the Company dated as of ______ __, ____ (the "Agreement"),
which fully [amends and restates the Prior Agreement,] and the
County proposes to [refund the Prior Bonds now outstanding]
pursuant to the terms and conditions set forth in this Indenture
by the issuance of the Bonds; and
WHEREAS, the Bonds in registered form and the Trustee's
Certificate of Authentication and [Clerk's] Registration and
Validation Certificates to be endorsed thereon are to be in
substantially the following form, with appropriate variations,
omissions and insertions as permitted or required by this
Indenture, to wit:
<PAGE>
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF ______________
__________________, _______________
_________________ BOND
____ SERIES
(MISSISSIPPI POWER & LIGHT COMPANY PROJECT)
No. R-_________$______________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
_________ __, ____
REGISTERED OWNER:
PRINCIPAL SUM:
KNOW ALL MEN BY THESE PRESENTS THAT [GOVERNMENTAL AUTHORITY]
(the "Issuer"), a body politic and corporate and a political
subdivision duly created and validly existing pursuant to the
laws and constitution of the State of ________ (the "State"), for
value received, promises to pay, solely from the source and as
hereinafter provided, to the registered owner named above, or
registered assigns, the principal sum specified above on the
maturity date specified above (or earlier as hereinafter referred
to) and in like manner and solely from the same source to pay
interest on said sum from the date determined as described in the
Indenture referred to on the reverse hereof at the rate of _____
per centum (__%) per annum, on __________ __, ____, and semi-
annually thereafter on _________ __ and _________ __ of each year
until the principal sum is paid or duly provided for. Interest
on the Bonds shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Principal of and redemption
premium, if any, and interest on this Bond are payable in lawful
money of the United States of America at the principal corporate
trust office of ___________________________, __________,
__________ ______, as paying agent and trustee under the
Indenture, or its successor in trust (the "Trustee"). Interest
hereon shall be payable to the person in whose name this Bond is
registered at the close of business on the fifteenth day of the
month preceding each interest payment date (whether or not such
date is a Business Day); such interest shall be paid by
clearinghouse check mailed to the person entitled thereto.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH [ON THE REVERSE HEREOF] OR [ON PAGES ____ THROUGH ____
HEREOF], WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH ABOVE THE EXECUTION AND AUTHENTICATION.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
that the issuance of this Bond and the issue of which it forms a
part do not exceed or violate any constitutional or statutory
limitation; and that provision has been made in the Indenture for
the deposit, but only from revenues thereunder pledged to the
payment of the principal of, redemption premium, if any, and
interest on this Bond and the issue of which it forms a part, of
moneys sufficient in amount for such purposes.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, [GOVERNMENTAL AUTHORITY], has caused
this Bond to be executed in its name on its behalf by the manual
or facsimile signature of the President of the Board of
Supervisors, its corporate seal or a facsimile thereof to be
hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of the
[Clerk of the Board of Supervisors] of [Governmental Authority],
all as of this ____ day of _____, _____.
[GOVERNMENTAL AUTHORITY]
[SEAL] By:
ATTEST:
By: ___________________________
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
DATED:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated in
and issued under the provisions of the within-mentioned
Indenture. A signed original of the Opinion of Bond Counsel,
________________, ___________, ____________, pertaining to the
Bonds is on file with the undersigned.
___________________________
as Trustee
By:___________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be printed on all Bonds)
VALIDATION CERTIFICATE
STATE OF ___________________________
COUNTY OF __________________________
I, the undersigned [Clerk of the Board of Supervisors and
Chancery Clerk of [Governmental Authority]] do hereby certify
that the within Bond has been validated and confirmed by [Decree
of the Chancery Court of [Governmental Authority]], rendered on
the __ day of ______, ____.
[facsimile or manual signature]
[SEAL] [Clerk, Board of Supervisors and
Chancery Clerk of [Governmental
Authority]]
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OF THE
FORM OF BOND OR ON SUPPLEMENTAL PAGES THEREOF)
This Bond is one of the Issuer's _________________ Bonds,
____ Series (Mississippi Power & Light Company Project)
aggregating $_____________ in principal amount (the "Bonds")
issued pursuant to the provisions of [Sections 31-15-21 through
31-15-27, Mississippi Code of 1972, as amended (the "Act") and
the Constitution of the State, for the purpose of providing
funds, which, together with other funds to be made available
therefor, will be used to refund all of the Issuer's outstanding
______________ Bonds, Series _____ (Mississippi Power & Light
Company Project) (the "Prior Bonds"). The Prior Bonds were
issued on ________ __, ____, to defray the cost of acquisition,
construction, installation and equipping of certain air and water
pollution control facilities (the "Project") at the
__________________ (the "Plant") of Mississippi Power & Light
Company (the "Company"), located at ________________________,
____________, __________, within the Issuer; the Project was sold
by the Issuer to the Company pursuant to a _________________
Agreement between the Issuer and the Company dated as of
__________ __, _______; the Company is the owner and operator of
the Plant and the Project. The Prior Bonds are refunded with the
proceeds of the Bonds and other funds provided by the Company,]
pursuant to an a [Facility] Agreement between the Issuer and the
Company dated as of ______ __, ____ (the "Agreement"). The Bonds
are issued under and are equally and ratably secured by and
entitled to the protection of a Trust Indenture dated as of even
date of the Agreement (the "Indenture") from the Issuer to the
Trustee. Reference is hereby made to the Indenture for a
description of the rights, limitation of rights, duties and
obligations of the Issuer, Trustee, Paying Agent and the holders
of the Bonds.
The Bonds are issuable as fully registered Bonds in the
denomination of $_______ or any integral multiple thereof. At
the principal corporate trust office of the Trustee, in the
manner and subject to the limitations, conditions and charges
provided in the Indenture, Bonds may be exchanged for an equal
aggregate principal amount of Bonds of authorized denominations,
bearing interest at the same rate and maturing on the same date.
The Bonds are subject to optional redemption by the Issuer
prior to maturity if the Company shall exercise its option to
prepay the purchase price for the Project as provided in Sections
8.1(b) through (e) of the Agreement, and shall so prepay the said
purchase price in which event the Bonds shall be redeemed in
whole by the Issuer at any time at the principal amount thereof
plus accrued interest to the redemption date but without premium.
The Bonds are also subject to optional redemption by the
Issuer at the direction of the Company, prior to maturity, on and
after ______ __, ____, in whole at any time or in part from time
to time and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, at the
redemption prices (expressed as percentages of principal amount)
set forth in the table below plus accrued interest to the
redemption date:
Optional
Redemption
Redemption Period Price
_____________ through __________ ____%
_____________ through __________ ____%
____________ and thereafter ___%
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
180 days after a final determination or final action referred to
below, at a redemption price equal to the principal amount
thereof plus accrued interest thereon to the date of redemption,
but without premium, if, as a result of any final determination
of a federal court or final action of the Internal Revenue
Service, in a proceeding in which the Company has received timely
notice of and has had an opportunity to participate at its
expense, it is determined that as a result of the failure of the
Company to observe any covenant, agreement or representation in
the Agreement or the Issuer to observe any covenant, agreement or
representation in the Indenture, the interest payable on the
Bonds is not excludable from gross income of a holder of a Bond
(other than a holder who is a "substantial user" or "related
person" within the meaning of Section 147(a) of the Internal
Revenue Code of 1986, as amended, and applicable regulations
promulgated thereunder (the "Code")) under Section 103 of the
Code. The Bonds shall be redeemed either in whole or in part in
such principal amount that the interest payable on the Bonds
remaining outstanding after such redemption would not be included
in the gross income of a holder thereof (other than a holder who
is a "substantial user" or "related person" within the meaning of
Section 147(a) of the Code and applicable regulations promulgated
thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to ______ __, ____, at a redemption price
equal to ____% of the principal amount being redeemed plus
accrued interest to the redemption date, if the Company shall
have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In the event Bonds are called for redemption as aforesaid,
notice thereof identifying the Bonds (or portions of Bonds) to be
redeemed and the applicable redemption price is to be given by
the Trustee not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for redemption by first class
mail, postage prepaid, to the registered owners of the Bonds, but
failure to mail such notice or any defect therein shall not
affect the validity of any proceedings for redemption of any Bond
as to which no failure or defect occurred. Notice of optional
redemption shall be conditioned upon the deposit of moneys with
the Trustee on or before the date fixed for redemption and such
notice shall be of no effect unless such moneys are so deposited.
On the date designated for redemption, notice having been given
and, in the case of an optional redemption, moneys for payment of
the redemption price and accrued interest being held by the
Trustee, all as provided in the Indenture, the Bonds or portions
of Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of such
Bonds or such portions thereof. On such date, interest on such
Bonds or such portions thereof so called for redemption shall
cease to accrue. Such Bonds or such portions thereof so called
for redemption shall cease to be entitled to any benefit or
security under the Indenture, and the holders or registered
owners thereof shall have no rights in respect of such Bonds or
such portions thereof so called for redemption except to receive
payment of the redemption price thereof and accrued interest so
held by the Trustee. If a portion of this Bond shall be called
for redemption, a new Bond in principal amount equal to the
unredeemed portion hereof will be issued in authorized
denominations to the registered owner upon the surrender hereof.
This Bond and the issue of which it forms a part are limited
special obligations of the Issuer, the principal of, redemption
premium, if any, and interest on which are payable solely out of
the revenues and receipts derived by the Issuer under the
Agreement (except to the extent paid out of moneys attributable
to the proceeds derived from the sale of the Bonds, or to
interest and realized profit from the temporary investment of
such proceeds, or to amounts paid by the Company). The Issuer
shall not be obligated to pay the principal of the Bonds,
redemption premium, if any, or the interest thereon or other
costs incident thereto except from the said revenues and
receipts. The Bonds shall never constitute an indebtedness or
pledge of the general credit of the Issuer within the meaning of
any State constitutional provision or statutory limitation of
indebtedness and shall never constitute nor give rise to a
pecuniary liability of the Issuer or a charge against the general
credit or taxing powers of the Issuer, the State or any political
subdivision thereof. The Indenture provides that moneys
sufficient for the prompt payment when due of the principal of,
redemption premium, if any, and interest on the Bonds are to be
paid to the Trustee for the account of the Issuer and deposited
in trust in the Bond Fund described therein, that the Company's
payment obligations under the Agreement have been duly assigned
for that purpose, and that the rights of the Issuer under the
Agreement (other than with respect to certain fees and
administrative expenses and indemnification of the Issuer against
certain costs and risks defined in the Agreement) have been
assigned to the Trustee to secure payment of such principal of,
redemption premium, if any, and interest under the Indenture.
The Indenture prescribes the manner in which it may be
discharged, including a provision that the Bonds shall be deemed
to be paid if Governmental Obligations, as defined therein,
maturing as to principal and interest in such amounts and at such
times as will provide sufficient funds to pay the principal of,
redemption premium, if any, and interest on the Bonds and all
fees and expenses of the Trustee, shall have been deposited with
the Trustee, after which, and upon the giving of notice in
accordance with the Indenture, the Bonds shall no longer be
secured by or be entitled to the benefits of the Indenture,
except for any such payment from such Governmental Obligations.
In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all of the
Bonds issued under the Indenture and then outstanding, together
with interest accrued thereon, may become or may be declared due
and payable before the stated maturity thereof, subject to
rescission of acceleration as provided in the Indenture.
The holder of this Bond shall have no right to institute any
action for the enforcement of the Indenture or for the execution
of any trust thereof, except as provided in the Indenture. The
Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the holders of the
Bonds at any time by the Issuer and the Trustee without the
consent of the holders of the Bonds, and in certain other cases
such modifications may be made only with the consent of the
holders of not less than a majority in aggregate principal amount
of the Bonds at the time outstanding, as set forth in the
Indenture. Any such consent or waiver by the holder of this Bond
shall be conclusive and binding upon such holder and upon all
future holders of this Bond and of any Bond issued upon the
exchange of this Bond whether or not notation of such consent or
waiver is made upon this Bond. The Indenture also contains
provisions permitting the Trustee to waive certain past defaults
thereunder.
This Bond is transferable by the registered owner hereof in
person or by his attorney or legal representative at the
principal corporate trust office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in
the Indenture and upon surrender and cancellation of this Bond.
Upon any such transfer the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange for this Bond a new
Bond or Bonds, registered in the name of the transferee, of
authorized denominations in aggregate principal amount equal to
the principal amount of this Bond, of the same maturity and
bearing interest at the same rate.
No covenant or agreement contained in this Bond or
the Indenture shall be deemed to be a covenant or agreement of
any officer or employee of the Issuer in his individual capacity,
and neither the members of the Issuer nor any official executing
this Bond shall be liable personally on this Bond or be subject
to any personal liability or accountability by reason of issuance
of this Bond. This Bond is issued with the intent that the laws
of the State of [Mississippi] shall govern its construction.
[FORM OF ASSIGNMENT]
(To be printed on all Bonds)
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - _____ Custodian _____ under Uniform
(cust) (minor)
Gifts to Minors Act ________________
(state)
Additional abbreviations may also be used though not in the
above list.
_________________________________________________
ASSIGNMENT
For value received,
hereby sell(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
(Please print or typewrite Name and
Address, including Zip Code, of Assignee)
the within Bond and hereby irrevocably constitute(s) and
appoint(s)
attorney, with full power of substitution in the premises, to
transfer this Bond on the books of the within mentioned
Registrar.
DATED _____________
Signature Guaranteed:
___________________________ ______________________________
NOTICE: Signature(s) must NOTE: The name signed to this
be guaranteed by a member assignment must correspond with
firm of the New York Stock the name of the payee as it
Exchange or a commercial appears upon the face of the
bank or trust company. within Certificate in every
particular, without alteration,
enlargement or change
whatsoever.
[END OF FORM OF BOND]
and
WHEREAS, all things necessary to make the Bonds, when
validated by the [Chancery Court of [Governmental Authority]],
authenticated by the Trustee and issued as provided in this
Indenture, the valid, binding and legal limited obligations of
the County according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the amounts
pledged to the payment of principal of, redemption premium, if
any, and interest on the Bonds and a valid assignment of the
rights of the County under the Agreement have been done and
performed, and the creation, execution and delivery of this
Indenture, and the creation, execution and issuance of the Bonds,
subject to the terms hereof, have in all respects been duly
authorized.
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and of the purchase and acceptance
of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the County in
hand paid by the Trustee at or before the execution and delivery
of this Indenture, the receipt of which is hereby acknowledged,
and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from
time to time be or become holders thereof, and in order to secure
the payment of all the Bonds at any time issued and outstanding
hereunder and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and in
order to secure the performance and observance of all the
covenants, agreements and conditions therein or herein contained;
the County has executed and delivered this Indenture; the County
does hereby grant, bargain, sell, convey, assign and pledge to
the Trustee all rights, title and interests of the County in the
Agreement, including all revenues and receipts received or to be
received thereunder (except for payments for indemnification
under Section 4.6 of the Agreement and payment of fees and
expenses under Section 7.4 of the Agreement), as security for the
payment of the Bonds and the interest and the redemption premium,
if any, thereon and as security for the satisfaction of any other
obligation assumed by it in connection with such Bonds; and it is
mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of all and
singular the present and future holders of the Bonds issued and
to be issued under this Indenture, without preference, priority
or distinction as to lien or otherwise, except as otherwise
hereinafter provided, of any one Bond over any other Bond, by
reason of priority in the issue, sale or negotiation thereof or
otherwise;
PROVIDED, HOWEVER, that if the County, its successors or
assigns shall pay or cause to be paid, the principal of,
redemption premium, if any, and interest on the Bonds due or to
become due thereon, at the times and in the manner mentioned in
the Bonds, and shall cause the payments to be made into the Bond
Fund as required under Article V hereof, or shall provide, as
permitted hereby, for the payment thereof by depositing with the
Trustee the entire amount due or to become due thereon pursuant
to the provisions of Article VII hereof, and shall perform all
the covenants and conditions required of it by this Indenture,
and shall pay or cause to be paid to the Trustee all sums of
money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture
and the rights hereby granted shall terminate and the Trustee
shall give such written instruments as are necessary to satisfy
the lien hereof; otherwise this Indenture to be and remain in
full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and secured
hereunder are to be issued, authenticated and delivered, and all
said property, rights and interest, including, without
limitation, the amounts hereby assigned and pledged, are to be
dealt with and disposed of subject to the terms of this
Indenture, and the County agrees with the Trustee and with the
respective holders and owners from time to time, of said Bonds,
or any part thereof, as follows:
ARTICLE I
DEFINITIONS
All words and phrases defined in Article I of the Agreement
shall have the same meaning in this Indenture. In addition to
other definitions herein contained, the following words and
phrases shall have the following meanings:
"bondholder" or "holder" or "owner of the Bonds" means the
registered owner of any Bond.
"default" and "event of default" mean any occurrence or
event specified in Section 8.01 hereof.
"outstanding" or "Bonds outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds cancelled after purchase in the open
market or because of payment at or redemption prior to
maturity;
(b) Bonds deemed paid as provided in Article VII
hereof; and
(c) Bonds in lieu of which other Bonds have been
authenticated under Section 2.08 hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No Bonds may be
issued under the provisions of this Indenture except in
accordance with this Article II.
SECTION 2.02. Issuance of Bonds. There shall be issued
under and secured by this Indenture Bonds of the County in the
aggregate principal amount of ___________________ Dollars
($________) for the purpose of providing funds, which, together
with other funds made available therefor by the Company, are
sufficient to [refund all of the outstanding Prior Bonds.] The
Bonds shall be designated "[Governmental Authority] _______
Bonds, ____ Series (Mississippi Power & Light Company Project),"
dated the ___ day of _________, _____ (or as otherwise provided
in this Indenture), shall bear interest from the date determined
pursuant to Section 2.04 hereof at the rate of ____ per centum
(__%) per annum, which interest shall be payable on _______ __,
____, and semi-annually thereafter on the __ day of _________ and
________ of each year until the principal sum is paid or duly
provided for, and shall thereupon be stated to mature, subject to
the right of prior redemption as hereinafter set forth, on the __
day of _______, ____.
The Bonds are and will continue to be payable as to
principal, redemption premium, if any, and interest solely out of
and secured by an irrevocable pledge of the revenues to be
derived from the sale of the Project, and any other sums which
may be received from or in connection with the Project, all as
provided in this Indenture; the Bonds will be limited special
obligations of the County and shall never constitute nor give
rise to any pecuniary liability of the County or a charge against
its general credit or taxing powers, nor shall the County be
obligated to pay the Bonds or the interest or redemption premium,
if any, thereon except from revenues to be derived from the sale
of the Project, and any other sums which may be received from or
in connection with the Project as provided for herein.
SECTION 2.03. Form of Bonds. The Bonds are issuable as
fully registered Bonds in denominations of $______ or any
multiple thereof. The Bonds shall be substantially in the form
hereinabove set forth, with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture, and may have endorsed thereon such legends or text as
may be necessary or appropriate to conform to any applicable
rules and regulations of any governmental authority or any usage
or requirement of law with respect thereto.
SECTION 2.04. Details, Execution and Payment. Each Bond
shall bear interest from the interest payment date next preceding
the date on which it is authenticated, unless authenticated prior
to ________ __, ____, in which event it shall bear interest from
_______ __, ____, and unless authenticated upon an interest
payment date, in which case it shall bear interest from such
interest payment date; provided, however, that if at the time of
authentication of any registered Bond interest is in default,
such Bond shall bear interest from the date to which interest has
been paid.
The Bonds shall be executed by the manual or facsimile
signature of the [President of the Board of Supervisors] of the
County and the seal of the County shall be affixed, impressed,
imprinted or otherwise reproduced thereon and attested by the
manual or facsimile signature of the [Clerk of said Board of
Supervisors.]
In case any officer whose signature or facsimile signature
shall appear on any Bonds shall cease to be such officer before
the delivery of such Bonds, such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he had remained in office until such
delivery, and also any Bond may be signed by or bear the
facsimile signature of such persons as at the actual time of the
execution of such Bond shall be the proper officers to sign such
Bond although at the date of such Bond such persons may not have
been such officers.
The principal of, redemption premium, if any, and the
interest on the Bonds shall be payable in any coin or currency of
the United States of America which on the respective dates of
payment thereof is legal tender for the payment of public and
private debts. The principal of and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee and Paying Agent, and payment of the interest on each
Bond shall be made by the Trustee on each interest payment date
to the person appearing on the registration books of the County
hereinafter provided for as the registered owner thereof on the
fifteenth day of the month preceding such interest payment date,
by check in clearinghouse funds mailed to such registered owner
at his address as it appears on such registration books. Payment
of the principal of all Bonds shall be made upon the presentation
and surrender of such Bonds as the same shall become due and
payable.
SECTION 2.05. Authentication; Exchange, Transfer and
Ownership of Bonds. Only such of the Bonds as shall have
endorsed thereon a certificate of authentication substantially in
the form hereinabove set forth, duly executed by the Trustee,
shall be entitled to any benefit or security under this
Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the
Trustee upon any such Bond shall be conclusive evidence that such
Bond has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an
authorized officer of the Trustee, but it shall not be necessary
that the same officer sign the certificate of authentication on
all of the Bonds that may be issued hereunder at any one time.
Subject to the provisions of Section 2.10 hereof:
(a) Bonds, upon surrender thereof at the principal
office of the Trustee, together with an assignment duly
executed by the registered owner or his attorney or
legal representative in such form as shall be
satisfactory to the Trustee, may, at the option of the
registered owner thereof, be exchanged for an equal
aggregate principal amount of Bonds of the same
maturity, of any denomination or denominations
authorized by this Indenture, and bearing interest at
the same rate and in the same form as the Bonds
surrendered for exchange.
(b) The County hereby authorizes the exchange of
Bonds at the principal office of the Trustee.
(c) The Trustee is hereby appointed as Bond
Registrar and as such shall keep books for the
registration and for the transfer of Bonds as provided
in this Indenture.
(d) Any Bond may be transferred only upon the
books kept for the registration and transfer of Bonds
upon surrender thereof to the Bond Registrar together
with an assignment duly executed by the registered
owner or his attorney or legal representative in such
form as shall be satisfactory to the Bond Registrar.
Upon any such transfer the County shall execute and the
Trustee shall authenticate and deliver in exchange for
such Bond a new Bond or Bonds, registered in the name
of the transferee, of any denomination or denominations
authorized by this Indenture in an aggregate principal
amount equal to the principal amount of such Bond, of
the same maturity and bearing interest at the same
rate.
(e) In all cases in which Bonds shall be exchanged
or Bonds shall be transferred hereunder, the County
shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in
accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or transfer
shall forthwith be cancelled by the Trustee. Such
transfers of registration or exchanges of Bonds shall
be without charge to holders of such Bonds, but any
taxes or other governmental charge required to be paid
with respect to such exchange or transfer shall be paid
by the holder of the Bond, and such charge shall be
paid before any such new Bond shall be delivered.
Neither the County nor the Trustee shall be required to
make any such exchange or transfer of Bonds during the
fifteen (15) days immediately preceding the selection
of Bonds for such redemption or after such Bonds or any
portion thereof has been selected for redemption.
(f) Any registered owner of any Bond is hereby
granted power to transfer absolute title thereto by
assignment thereof to a bona fide purchaser for value
(present or antecedent) without notice of prior
defenses or equities or claims of ownership enforceable
against his assignor or any person in the chain of
title and before the maturity of such Bond. Every
prior holder or owner of any Bond shall be deemed to
have waived and renounced all of his equities or rights
therein in favor of every such bona fide purchaser, and
every such bona fide purchaser shall acquire absolute
title thereto and to all rights represented thereby.
(g) At reasonable times and under reasonable
regulations established by the Trustee, the list of
registered owners of the Bonds may be inspected and
copied by the Company or by holders or owners (or a
designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such
possession or ownership and the authority of such
designated representative to be evidenced to the
satisfaction of the Trustee.
SECTION 2.06. Delivery of Bonds; Application of Proceeds.
Upon the execution and delivery of this Indenture, the County
shall execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver them to the purchasers thereof
as directed by the County as hereinafter in this Section 2.06
provided.
Prior to the delivery by the Trustee of any such Bonds there
shall be filed with the Trustee:
(a) A copy, certified by the [Clerk of the
Board of Supervisors] of the County, of the resolution
adopted by said [Board of Supervisors] authorizing the
execution and delivery of the Agreement and authorizing
the execution of this Indenture and the issuance of the
Bonds.
(b) An original duly executed counterpart of
the Agreement and an original duly executed counterpart
of this Indenture.
(c) A request and authorization to the
Trustee on behalf of the County, signed by the
[President of the Board of Supervisors] of the County,
to authenticate and deliver the Bonds to the purchasers
therein identified upon payment to the Trustee but for
the account of the County, of a sum specified in such
request and authorization. The proceeds of such
payment shall be paid over to the Trustee; and
deposited or transferred as follows:
(i) To the Trustee for deposit in the Bond
Fund, a sum equal to the accrued interest, if any,
paid by the original purchasers of the Bonds; and
[(ii) To the trustee for the Prior Bonds, the
balance of such proceeds.]
SECTION 2.07. Temporary Bonds. Until definitive Bonds are
ready for delivery, there may be executed, and upon request of
the County the Trustee shall authenticate and deliver, in lieu of
definitive Bonds and subject to the same limitations and
conditions, temporary printed, engraved, lithographed or
typewritten Bonds, in the form of fully registered Bonds in
denominations of $________ or any multiple thereof, as the County
by resolution may provide, substantially of the tenor hereinabove
set forth and with such appropriate omissions, insertions and
variations as may be required.
If temporary Bonds shall be issued, the County shall cause
the definitive Bonds to be prepared and to be executed and
delivered to the Trustee, and the Trustee, upon presentation to
it at its principal office of any temporary Bond, shall cancel
the same and authenticate and deliver in exchange therefor at the
principal office of the Trustee, without charge to the holder
thereof, a definitive Bond or Bonds of an equal aggregate
principal amount, of the same maturity and bearing interest at
the same rate as the temporary Bond surrendered. Until so
exchanged the temporary Bonds shall in all respects be entitled
to the same benefit and security of this Indenture as the
definitive Bonds to be issued and authenticated hereunder.
SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In case
any Bond secured hereby shall become mutilated or be destroyed or
lost, the County shall cause to be executed, and the Trustee
shall authenticate and deliver, a new Bond of like date and tenor
in exchange and substitution for and upon the cancellation of
such mutilated Bond, or in lieu of and in substitution for such
Bond, if any, destroyed or lost, upon the holder's paying the
reasonable expenses and charges of the County and the Trustee in
connection therewith and, in the case of a Bond destroyed or
lost, the holder's filing with the Trustee evidence satisfactory
to it and to the County that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the County and the
Trustee indemnity satisfactory to them.
SECTION 2.09. Destruction of Bonds. Whenever any
outstanding Bonds shall be delivered to the Trustee upon the
cancellation thereof pursuant to this Indenture, upon payment of
the principal amount represented thereby or for replacement of a
mutilated Bond pursuant to Section 2.08 hereof, such Bonds shall
be promptly cancelled and destroyed by the Trustee and
counterparts of a certificate of destruction evidencing such
destruction shall be furnished by the Trustee to the County and
the Company.
Section 2.10. Book-Entry Only System. Upon issuance of the
Bonds, one fully-registered Bond will be registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Securities Depository") in the aggregate principal amount of the
Bonds. So long as Cede & Co. is the registered owner of the
Bonds, as nominee of the Securities Depository, references herein
to the holders of the Bonds or registered owner of the Bonds
shall mean Cede & Co. and shall not mean the beneficial owners of
the Bonds.
The Letter of Representations in substantially the form
attached hereto as Exhibit A, with such changes, omissions,
insertions and revisions as the Clerk of the Board of Supervisors
of the County and the Trustee may approve at any time, is hereby
approved, and the County and the Trustee shall execute and
deliver such Letter of Representations. The approval of the
County and the Trustee of any changes, omissions, insertions and
revisions to the Letter of Representations shall be conclusively
established by the execution of the Letter of Representations by
[Clerk of the Board of Supervisors] of the County and the
Trustee.
Transfers of beneficial ownership interests in the Bonds
will be accomplished by book entries made by the Securities
Depository, and, in turn by the participants in the Securities
Depository (the "Participants") who act on behalf of the indirect
participants in the Securities Depository (the "Indirect
Participants") and the beneficial owners of the Bonds. For each
transfer and exchange of beneficial ownership in the Bonds, the
beneficial owner may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in
relation thereto.
The Trustee and the County shall recognize the Securities
Depository or its nominee, Cede & Co., as the owner of the Bonds
for all purposes, including notices and voting. Conveyance of
notices and other communications by the Securities Depository to
Participants and by such Participants to Indirect Participants,
and by Participants and Indirect Participants to beneficial
owners of the Bonds will be governed by arrangements among the
Securities Depository, the Participants and the Indirect
Participants, subject to any statutory and regulatory
requirements as may be in effect from time to time.
NEITHER THE COUNTY NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH RESPECT
TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT; (ii)
THE PAYMENT BY THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL AMOUNT OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS; (iii) THE DELIVERY TO THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED
TO BE GIVEN TO HOLDERS OF THE BONDS UNDER THE TERMS OF THIS
INDENTURE; (iv) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR
(v) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by
giving notice to the Trustee and discharging its responsibilities
with respect thereto under the applicable law. In such event, or
in the event the County at the request of the Company elects to
use a similar book-entry system with another securities
depository, there may be a successor securities depository (all
references to the Securities Depository include any such
successor). The County at the request of the Company may also
determine to discontinue participation in the system of book-
entry transfer through the Securities Depository at any time by
giving reasonable notice to the Securities Depository. If the
book-entry system is terminated, Bond certificates will be
delivered to the beneficial owners, at the expense of the
Company, as provided herein. The beneficial owners of the Bonds,
upon registration of certificates held in the beneficial owners'
names, will then become the registered owners of the Bonds and
registration, transfer and exchange of the Bonds by such owners
will be governed by Section 2.05 herein.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. The Bonds are
subject to optional redemption by the County prior to maturity,
if the Company shall exercise its option to prepay the purchase
price for the Project as provided in Sections 8.1(b) through (e)
of the Agreement, and shall so prepay the said purchase price in
which event the Bonds shall be redeemed in whole by the County at
any time at the principal amount thereof plus accrued interest to
the redemption date but without premium.
The Bonds are also subject to optional redemption prior to
maturity by the County, at the direction of the Company, prior to
maturity, on and after _____ __, ____, in whole at any time or in
part from time to time and if in part, by lot or in such other
manner as may be determined by the Trustee to be fair and
equitable, at the redemption prices (expressed as percentages of
principal amount) set forth in the table below plus accrued
interest to the redemption date:
Optional
Redemption
Redemption Period Price
____________ through ____________ ___%
____________ through ____________ ___%
____________ and thereafter ___%
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
180 days after a final determination or final action referred to
below, at a redemption price equal to the principal amount
thereof plus accrued interest thereon to the date of redemption,
but without premium, if, as a result of any final determination
of a federal court or final action of the Internal Revenue
Service, in a proceeding in which the Company has received timely
notice of and has had an opportunity to participate at its
expense, it is determined that as a result of the failure of the
Company to observe any covenant, agreement or representation in
the Agreement or the Issuer to observe any covenant, agreement or
representation in this Indenture, the interest payable on the
Bonds is not excludable from gross income of a holder of a Bond
(other than a holder who is a "substantial user" of the Project
or "related person" within the meaning of Section 147 of the
Internal Revenue Code of 1986, as amended, and applicable
regulations promulgated thereunder (the "Code")) under Section
103 of the Code. The Bonds shall be redeemed, whether in whole
or in part, in such principal amount that the interest payable on
the Bonds remaining outstanding after such redemption would not
be included in the gross income of a holder thereof (other than a
holder who is a "substantial user" or "related person" within the
meaning of Section 147(a) of the Code and applicable regulations
promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the County at the direction of the Company, in whole but not in
part, at any time prior to ________ __, ____, at a redemption
price equal to ____% of the principal amount being redeemed plus
accrued interest to the redemption date, if the Company shall
have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
If less than all of the Bonds shall be called for
redemption, the particular Bonds or portions of registered Bonds
to be redeemed shall be selected by the Trustee by lot or in such
other manner as the Trustee in its discretion may determine;
provided, however, that the portion of any registered Bond to be
redeemed shall be in the principal amount of $____ or some
multiple thereof, and that, in selecting Bonds for redemption,
the Trustee shall treat each Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such
registered Bond by $____.
SECTION 3.02. Notice of Redemption. At least thirty (30)
days but not more than sixty (60) days before the redemption date
of any Bonds the Trustee shall cause a notice of any such
redemption, either in whole or in part, to be mailed, postage
prepaid, to all registered owners of Bonds to be redeemed in
whole or in part at their addresses as they appear on the
registration books hereinabove provided for, but failure so to
mail any such notice shall not affect the validity of the
proceedings for such redemption. Each such notice shall set
forth the date fixed for redemption, the redemption price to be
paid and, if less than all of the Bonds then outstanding shall be
called for redemption, the distinctive numbers and letters, if
any, of such Bonds to be redeemed and, in the case of Bonds to be
redeemed in part only, the portion of the principal amount
thereof to be redeemed. In case any Bond is to be redeemed in
part only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon
surrender of such Bond, a new Bond in principal amount equal to
the unredeemed portion of such Bond will be issued.
If at the time of giving of notice of an optional redemption
there shall not have been deposited with the Trustee moneys
sufficient to redeem all the Bonds called for redemption, such
notice shall state that it is conditioned upon the deposit of the
redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no
effect unless such moneys are so deposited. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
SECTION 3.03. Effect of Call for Redemption. On the date
so designated for redemption, moneys for payment of the
redemption price and accrued interest to the redemption date
being held by the Trustee in trust for the holders of the Bonds
or portions thereof to be redeemed, all as provided in this
Indenture, the Bonds or portions of Bonds so called for
redemption shall become and be due and payable at the redemption
price provided for redemption of such Bonds or portions of Bonds
on such date, interest on the Bonds or portions of Bonds so
called for redemption shall cease to accrue, such Bonds or
portions of Bonds shall cease to be entitled to any benefit or
security under this Indenture, and the holders or registered
owners of such Bonds or portions of Bonds shall have no rights in
respect thereof except to receive payment of the redemption price
thereof and accrued interest to the redemption date and, to the
extent provided in Section 3.04 of this Article, to receive Bonds
for any unredeemed portions of Bonds.
SECTION 3.04. Partial Redemption. In case part but not all
of an outstanding Bond shall be selected for redemption, the
registered owner thereof or his attorney or legal representative
shall present and surrender such bond to the Trustee for payment
of the principal amount thereof so called for redemption, and the
County shall execute and the Trustee shall authenticate and
deliver to or upon the order of such registered owner or his
attorney or legal representative, without charge therefor, for
the unredeemed portion of the principal amount of the Bond so
surrendered, a Bond of the same maturity and bearing interest at
the same rate.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All moneys
which the Trustee shall have withdrawn from the Bond Fund or
shall have received from any other source and set aside, or
deposited with the paying agents, for the purpose of paying any
of the Bonds hereby secured, either at the maturity thereof or
upon call for redemption, shall be held in trust for the
respective holders of such Bonds. But any moneys which shall be
so set aside or deposited by the Trustee and which shall remain
unclaimed by the holders of such Bonds for a period of six (6)
years after the date on which such Bonds shall have become due
and payable shall upon request in writing be paid to the Company
and, thereafter, the holders of such Bonds shall look only to the
Company for the payment thereof and then only to the extent of
the amount so received without any interest thereon, and the
County, the Trustee shall have no responsibility with respect to
such moneys.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal, Redemption Premium, if
any, and Interest. The County covenants that it will promptly
pay the principal of, redemption premium, if any, and interest on
every Bond issued under this Indenture at the place, on the dates
and in the manner provided herein and in said Bonds according to
the true intent and meaning thereof, but only from the revenues
and receipts specifically pledged herein for such purposes.
SECTION 4.02. Performance of Covenants; County. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The County covenants that it is
duly authorized under the Constitution and laws of the State of
[Mississippi,] including particularly and without limitation the
Act, to issue the Bonds and to execute this Indenture, to assign
and pledge the Agreement, the amounts payable under the Agreement
and to pledge the amounts hereby pledged in the manner and to the
extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of
this Indenture has been duly and effectively taken, and that the
Bonds in the hands of the holders and owners thereof are and will
be valid and enforceable obligations of the County according to
the terms thereof and hereof.
SECTION 4.03. Instruments of Further Assurance; Liens and
Encumbrances. The County covenants that it will do, execute,
acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indenture or indentures
supplemental hereto and such further acts, instruments and
transfers as the Trustee may reasonably require for the better
pledging and assigning unto the Trustee all and singular the
purchase price installments and any other income and other moneys
pledged hereby to the payment of the principal of and interest
and redemption premium, if any, on the Bonds. The County further
covenants that it will not create or suffer to be created any
lien, encumbrance or charge upon its interest in the Agreement,
including purchase price installments or any other income from
the Agreement; provided, however, that nothing in this Section
4.03 shall require the County to pay or cause to be discharged,
or make provision for, any such lien, encumbrance or charge so
long as the validity thereof shall be contested in good faith and
by appropriate legal proceedings.
SECTION 4.04. Recordation. The Company is obligated
pursuant to Section 9.7 of the Agreement to take all actions that
at the time and from time to time may be necessary (or, in the
opinion of the Trustee, may be necessary) to perfect, preserve,
protect and secure the interests of the County and the Trustee,
or either, in and to the revenues and receipts receivable by the
County pursuant to the Agreement, including, without limitation,
the filing of all financing and continuation statements that may
be required under the [Mississippi] Uniform Commercial Code. The
County and the Trustee covenant that they will execute all
documents necessary to permit the Company to fulfill its
obligations under said Section 9.7 of the Agreement.
SECTION 4.05. Rights Under Agreement. The Agreement, a
duly executed counterpart of which has been filed with the
Trustee, sets forth the covenants and obligations of the County
and the Company, including provisions that subsequent to the
issuance of Bonds and prior to their payment in full or provision
for payment thereof in accordance with the provisions thereof the
Agreement may not be amended, changed, modified, altered or
terminated (other than as provided therein) without the
concurring written consent of the Trustee, and reference is
hereby made to the same for a detailed statement of said
covenants and obligations of the Company thereunder; and the
County agrees that the Trustee in its own name or in the name of
the County may enforce all rights of the County and all
obligations of the Company under and pursuant to the Agreement
for and on behalf of the Bondholders, whether or not the County
is in default hereunder.
SECTION 4.06. Prohibited Activities. The County and the
Trustee covenant that neither of them shall take any action or
suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
Issuer and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations of the
County to make payments hereunder in respect of the principal of,
redemption premium, if any, and interest on such Bonds. Such
Bonds are not general obligations of the County but are limited
obligations payable solely from revenues and receipts derived
from the sale of the Project and as authorized by the Act and
provided herein.
The payments to be made by the Company under the Agreement
are to be paid directly to the Trustee for the account of the
County and deposited in the Bond Fund. Such payments shall be
sufficient in amount to provide for, and are pledged to secure,
the payment of the principal of, redemption premium, if any, and
interest on the Bonds.
SECTION 5.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "[Governmental Authority] Bonds, ____ Series
(Mississippi Power & Light Company Project) Bond Fund" (the "Bond
Fund"). Moneys deposited therein shall be used to pay the
principal of, redemption premium, if any, and interest on the
Bonds as provided in this Indenture.
SECTION 5.03. Payments into the Bond Fund. There shall be
deposited into the Bond Fund any accrued interest received from
the sale of the Bonds. In addition, there shall be deposited
into the Bond Fund, as and when received, (i) all purchase price
payments and the interest thereon made pursuant to the Agreement;
and (ii) all other moneys received by the Trustee under and
pursuant to any of the provisions of the Agreement which are
required, or which are accompanied by directions from the Company
that such moneys are, to be paid into the Bond Fund. The County
hereby covenants and agrees that, so long as any of the Bonds are
outstanding, it will deposit, or cause to be paid to the Trustee
for deposit in the Bond Fund for its account, sufficient sums
from revenues and receipts derived from the sale of the Project,
whether or not under and pursuant to the Agreement, promptly to
meet and pay the principal of, redemption premium, if any, and
interest on the Bonds as the same become due and payable;
provided, however, that nothing herein shall be construed as
requiring the County to use any funds or revenues from any source
other than receipts and revenues derived from the sale of the
Project.
SECTION 5.04. Use of Moneys in the Bond Fund. Except as
provided in Section 5.08 hereof, moneys in the Bond Fund shall be
used solely for the payment of the principal of, redemption
premium, if any, and interest on the Bonds.
SECTION 5.05. Custody of the Bond Fund. The Bond Fund
shall be in the custody of the Trustee but in the name of the
County, and the County hereby authorizes and directs the Trustee
to withdraw sufficient funds from the Bond Fund to pay the
principal of, redemption premium, if any, and interest on the
Bonds as the same become due and payable for the purpose of
paying said principal of, redemption premium, if any, and
interest, which authorization and direction the Trustee hereby
accepts.
SECTION 5.06. Non-presentment of Bonds. In the event any
Bond shall not be presented for payment when the principal
thereof becomes due, whether at stated maturity, upon redemption,
or otherwise, if funds sufficient to pay such Bond shall have
been made available to the Trustee for the benefit of the holder
thereof, all liability of the Issuer to the holder thereof for
the payment of such Bond shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such funds, without liability for interest
thereon, for the benefit of the holder of such Bond for a period
of six years after such due date (or, if shorter, the period
ending on the date immediately preceding the date that such funds
would escheat to the State of Mississippi), at which time such
funds shall be transferred, upon written request from a Company
Representative to the Company which shall hold such funds without
liability for interest thereon, for the benefit of the holder of
such Bond who shall thereafter be restricted exclusively to a
claim against the Company for any claim of whatever nature on his
part with respect to said Bond.
SECTION 5.07. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for the
account of the Bond Fund under any provision of this Indenture or
the Agreement shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of the Bonds, notice of the redemption of which has
been duly given and for moneys deposited with or paid to the
Trustee pursuant to Article VII hereof, shall, while held by the
Trustee, constitute part of the trust estate and be subject to
the security interest created hereby.
SECTION 5.08. Repayment to the Company from Bond Fund. Any
amounts remaining in the Bond Fund after payment in full of the
principal of, redemption premium, if any, and interest on the
Bonds and the fees and expenses of the Trustee and all other
amounts required to be paid hereunder shall belong and be paid to
the Company.
SECTION 5.09. Creation and Use of the Rebate Fund. There
is hereby created and established a special fund to be designated
"[Governmental Authority] ________ Bonds, ____ Series
(Mississippi Power & Light Company Project) Rebate Fund" (the
"Rebate Fund") which shall be held by the Trustee, in trust, for
the benefit of the County to secure payment to the United States
Government of all amounts to become due to the United States
Government under the rebate requirements set forth in Section
148(f) of the Code and to facilitate compliance by the Issuer,
the Trustee, and the Company with the provisions of the Company's
Tax Certificate and Covenants pertaining to the Bonds (the
"Certificate"). Capitalized terms and phrases used in this
Section and not otherwise defined in this Indenture, shall have
the meaning given to those terms in the Certificate.
The Trustee shall apply any moneys in the Rebate Fund in
accordance with written instructions from the Company. The
Company is obligated, pursuant to the Certificate, to give such
instructions to the Trustee in accordance with the Certificate.
The County and the Trustee shall not make or agree to make
any payments or participate in any non-arms-length transaction
which would have the effect of reducing the earnings on
investments, thereby reducing the amount required to be rebated
to the United States under Section 148(f) of the Code and
regulations thereunder.
The Rebate Fund shall not provide further security for the
Bonds.
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Moneys. Except as otherwise
provided in this Article VI, any moneys held as part of the Bond
Fund shall be invested and reinvested by the Trustee, subject to
applicable provisions of law, only as directed from time to time
by the Company in writing, including, without limitation, in
direct obligations of, or obligations guaranteed by or other
obligations (including repurchase agreements) fully secured by
direct obligations of, the United States of America or
obligations of the Federal National Mortgage Association, the
Federal Intermediate Credit Banks, Federal Banks for
Cooperatives, Federal Land Banks, Federal Home Loan Bank,
Government National Mortgage Association, Export-Import Bank of
the United States, United States Postal Service, Tennessee Valley
Authority or any other agency or corporation which is or may
hereafter be created by or pursuant to an Act of the Congress of
the United States as an agency or instrumentality thereof; or
direct obligations of, or obligations guaranteed by, any state of
the United States which is rated in the two highest ratings by a
recognized national rating service in Municipal Bonds; or Public
Housing Bonds, Temporary Notes, or Preliminary Loan Notes, fully
secured by contracts with the United States; or negotiable or non-
negotiable certificates of deposit, time deposits or bankers
acceptances issued by the Trustee or any bank, trust company or
national banking association which is located in the United
States of America (including branch offices of foreign banks) or
in any foreign country and which has a capital stock and surplus
aggregating at least $10,000,000; provided, however, that the
negotiable or non-negotiable certificates of deposit, time
deposits, or bankers acceptances of any bank, trust company or
national association may not exceed $100,000 if the aggregate
capital stock and surplus is less than $25,000,000; or commercial
paper rated by Moody's National Credit Office P-1 and S&P's A-1.
Such certificates of deposit, time deposits or bankers
acceptances may be purchased directly or indirectly from such a
bank, trust company or national banking association including the
Trustee; including in each case any hereafter issued obligations
or certificates. Each investment shall have a maturity not
exceeding the time within which the funds invested therein are
required to be available. The Trustee may, as directed in
writing by the Company, and to the extent required for payments
from the Bond Fund shall, sell any such obligation at any time,
and the proceeds of such sale, and of all payments at maturity
and upon redemption of such investments, shall be held in the
Bond Fund in which such obligations were held. The Trustee shall
not be held liable for any loss incurred by reason of such sale.
Such investments shall be made pursuant to written direction of
the Company by its authorized officer (being any Vice President,
the Treasurer, any Assistant Treasurer or the Company
Representative) to the Trustee. Any such investments shall be
held by or under the control of the Trustee and shall be deemed
at all times a part of the Bond Fund for which they were made.
The interest accruing on, any profit realized from, and any loss
resulting from, investment of moneys shall be credited or
charged, as the case may be, to the Bond Fund in which the
investment was made. The Trustee covenants to follow the
investment directions of the Company and shall not be held liable
for any loss resulting from such investment. The County further
covenants and represents to and for the benefit of the purchasers
of the Bonds that no use will be made of the proceeds from the
issue and sale of the Bonds which, on the basis of the facts,
estimates and circumstances now known and reasonably expected to
be in existence on the date of issue of the Bonds, would cause
the Bonds to be classified as of the date of issue as "arbitrage
bonds" within the meaning of Section 148 of the Code. Pursuant
to such covenant, the County obligates itself to comply
throughout the term of the Bonds with the requirements of Section
148 of the Code.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Indenture. When the principal
of, redemption premium, if any, and interest on all of the Bonds
shall have been paid, or deemed paid as provided in this Article,
and if the County shall not then be in default under any of its
other obligations under the terms of this Indenture, and if the
Company shall have caused to be paid to the Trustee all other
sums of money due or to become due according to the provisions
hereof (or shall have made arrangements satisfactory to the
Trustee for such payment) and shall not then be in default under
any of its obligations under the terms of the Agreement, then
this Indenture and the lien created hereby shall be discharged
and satisfied, and thereupon the Trustee shall execute and
deliver to the Issuer such instruments in writing as shall be
requisite to cancel and discharge the Agreement and to evidence
the discharge and cancellation of this Indenture; provided,
however, that the Trustee shall remain obligated to hold in trust
any amounts then remaining in the Bond Fund and to pay to the
holders of the Bonds any amounts held by the Trustee for the
payment of the principal of, redemption premium, if any, and
interest on the Bonds according to the provisions of Section 5.04
hereof and to pay any remaining amounts to the Company as
provided in Article V hereof.
Any Bond shall be deemed to be paid within the meaning of
this Article when delivered to the Trustee for cancellation or
when payment of the principal of, redemption premium, if any, and
interest thereon to the due date thereof (whether at maturity, or
upon redemption, or otherwise) either (a) shall have been made or
caused to be made in accordance with the terms thereof, or (b)
shall have been provided by depositing with the Trustee, for such
payment, (i) moneys sufficient to make such payment or (ii)
moneys and/or Governmental Obligations maturing as to principal
and interest in such amounts and at such times as will insure the
availability of sufficient moneys to make such payment, provided
that all necessary and proper fees, compensation and expenses of
the Trustee pertaining to the Bonds with respect to which such
deposit is made shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. At such times
as a Bond shall be deemed to be paid hereunder, as aforesaid, it
shall no longer be secured by or entitled to the benefits of this
Indenture, except for the purposes of any such payment from such
moneys or Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (b)
of the immediately preceding paragraph shall be deemed a payment
of such Bonds as aforesaid until (1) proper notice of redemption
of such Bonds shall have been given in accordance with Article
III hereof, or in the event said Bonds are not by their terms
subject to redemption within the next succeeding sixty days,
until the Company shall have given the Trustee on behalf of the
County, in form satisfactory to the Trustee, irrevocable
instructions to give proper notice of such redemption and to
notify, as soon as practicable, the holders of the Bonds in
accordance with Article III hereof that the deposit required by
(b) above has been made with the Trustee and that said Bonds are
deemed to have been paid in accordance with this Article and
stating such maturity or redemption date upon which moneys are to
be available for the payment of the principal of and redemption
premium, if any, on said Bonds, plus interest, or (2) the stated
maturity of such Bonds. Any moneys so deposited with the Trustee
as provided in this Article VII, only at the written direction or
telecopy direction confirmed in writing of the Company, may also
be invested and reinvested in Governmental Obligations maturing
in the amounts and times as hereinbefore set forth, and all
income from all Governmental Obligations in the hands of the
Trustee pursuant to this Article which is not required for the
payment of the Bonds and interest and redemption premium thereon
with respect to which such moneys shall have been so deposited,
shall be deposited in the Bond Fund as and when realized and
collected for use and application as are other moneys deposited
in that Fund; provided, in addition, that the Trustee shall have
received the opinion of Bond Counsel to the effect that such
deposit does not adversely effect the exclusion of the interest
on the Bonds from gross income for purposes of federal income
taxation.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 8.01. Events of Default. Each of the
following events shall constitute and be referred to in this
Indenture as an "event of default":
(a) default in the due and punctual payment of
any interest on any Bond hereby secured and outstanding and
the continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of
the principal of and redemption premium, if any, on any Bond
hereby secured and outstanding, whether at the stated
maturity thereof, or upon proceedings for the unconditional
redemption thereof, or upon the maturity thereof by
acceleration;
(c) default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the County and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of any aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the County, or the Company on behalf of the
County, within such period and is being diligently pursued;
or
(d) the occurrence of an "event of default" under
Section 7.1(c) or (d) of the Agreement.
The term "default" as used in clauses (a), (b) and (c)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "event of default" as hereinabove
provided.
SECTION 8.02. Acceleration. Upon the occurrence of an
event of default specified in paragraphs (a), (b) or (d) of
Section 8.01 hereof, the Bonds and any interest accrued thereon,
shall, without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in the same manner as notice of redemption under 3.02
hereof.
If, after the principal of the Bonds has become due and
payable, all arrears of interest and interest on overdue
installments of interest (if lawful) at the rate per annum borne
by the Bonds and the principal and redemption premium, if any, on
all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable
under this Indenture except the principal of, and interest on,
the Bonds which by such acceleration shall have become due and
payable upon the Bonds, are paid by the County, and the County
pays the reasonable charges of the Trustee, the bondholders and
any trustee appointed under law, including the Trustee's
reasonable attorney's fees, then, and in every such case, the
Trustee shall annul such acceleration and its consequences, and
such annulment shall be binding upon all holders of Bonds issued
hereunder; but no such annulment shall extend to or affect any
subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of such annulment
notice pursuant to this paragraph to the County.
SECTION 8.03. Other Remedies. If any event of default
occurs and is continuing, except as otherwise provided in Section
9.11 hereof, the Trustee may pursue any available remedy by suit
at law or in equity to enforce the payment of the principal of
and redemption premium, if any, and interest on the Bonds then
outstanding hereunder, then due and payable, and enforce each and
every right granted to it under the Agreement and any supplements
or amendments thereto for the benefit of the bondholders. In
exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
bondholders.
SECTION 8.04. Legal Proceedings by Trustee. If any event
of default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the holders of
twenty-five percent in principal amount of all Bonds then
outstanding and receipt of indemnity to its satisfaction shall,
in its own name as Trustee:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the bondholders,
including the right to require the County to enforce any
rights under the Agreement and to require the County to
carry out any other provisions of this Indenture for the
benefit of the bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the County to
account as if it were the trustee of an express trust for
the bondholders; or
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the bondholders.
No remedy conferred upon or reserved to the Trustee or to
the bondholders by the terms of this Indenture is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or event of default shall impair any such right
or power or shall be construed to be a waiver of any such default
or event of default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or event of default hereunder,
whether by the Trustee or by the bondholders, shall extend to or
shall affect any subsequent default or event of default or shall
impair any rights or remedies consequent thereon.
SECTION 8.05. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds then
outstanding shall have the right, at any time, by an instrument
or instruments in writing executed and delivered to the Trustee,
to direct the method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder, provided, that such
direction shall not be otherwise than in accordance with the
provisions of law or of this Indenture.
SECTION 8.06. Appointment of Receivers. Upon the
occurrence of an event of default, and upon the filing of a suit
or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the bondholders under this
Indenture, the Trustee shall be entitled, as a matter of right,
to the appointment of a receiver or receivers of the trust
estate, with such powers as the court making such appointment
shall confer.
SECTION 8.07. Waiver. Upon the occurrence of an event of
default, to the extent that such rights may then lawfully be
waived, neither the County, nor the State of [Mississippi,] nor
any political subdivision thereof, nor anyone claiming through or
under any of them, shall set up, claim, or seek to take advantage
of any appraisement, valuation, stay, extension or redemption
laws now or hereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the County, for itself and all
who may claim through or under it, hereby waives, to the extent
that it lawfully may do so, the benefit of all such laws.
SECTION 8.08. Application of Moneys. All moneys received
by the Trustee pursuant to any right given or action taken under
the provisions of this Article VIII shall, after payment of the
costs and expenses of the proceedings resulting in the collection
of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, including but not limited to
payments for and expenses of third party professionals, be
deposited in the Bond Fund and all moneys in the Bond Fund shall
be applied as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons entitled
thereto of the unpaid principal of and redemption
premium, if any, on any of the Bonds which shall have
become due (other than Bonds matured or called for
redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), in the
order of their due dates, with interest on such Bonds
from the respective dates upon which they became due
and, if the amount available shall not be sufficient to
pay in full Bonds due on any particular date, together
with such interest, then to the payment ratably,
according to the amount of principal due on such date,
to the persons entitled thereto without any
discrimination or privilege.
THIRD - Payment of interest on and principal of
the Bonds, and to the redemption of Bonds in accordance
with the provisions of Article V.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to
the payment of the principal and interest then due upon the
Bonds, without preference or priority of principal over
interest or of interest over principal, or of any
installment of interest over any other installment of
interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal and
interest, to the persons entitled thereto without any
discrimination or privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if such acceleration shall
thereafter have been rescinded and annulled under the
provisions of this Article VIII then, subject to the
provisions of subsection (b) of this Section 8.08 in the
event that the principal of all the Bonds shall later become
due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of subsection (a)
of this Section 8.08.
Whenever moneys are to be applied pursuant to the provisions
of this Section 8.08, such moneys shall be applied at such times,
and from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest payment
date unless it shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the
amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the
fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of, redemption premium, if any, and
interest on all Bonds have been paid under the provisions of this
Section 8.08 and all expenses and charges of the Trustee have
been paid, any balance remaining in the Bond Fund shall be paid
to the Company as provided in Section 5.11 hereof.
SECTION 8.09. Remedies Vested in the Trustee. All rights
of action (including the right to file proof of claims) under
this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any holders of the Bonds; and
any recovery of judgment shall subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the holders of
the outstanding Bonds.
SECTION 8.10. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless also a default has occurred of which the Trustee has been
notified as provided in Section 9.01(h) hereof, or of which by
said subsection it is deemed to have notice, nor unless also such
default shall have become an event of default and the holders of
not less than twenty-five percent in aggregate principal amount
of Bonds then outstanding shall have made written request to the
Trustee and shall have offered it reasonable opportunity either
to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in their own name or
names, nor unless also they have offered to the Trustee indemnity
as provided in Section 9.01(l) hereof, nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his or
their action or to enforce any right hereunder except in the
manner herein provided, and that all proceedings at law or in
equity shall be instituted, had and maintained in the manner
herein provided and for the equal and ratable benefit of the
holders of all Bonds then outstanding. Nothing in this Indenture
contained shall, however, affect or impair the right of any
bondholder to enforce the payment of the principal of, redemption
premium, if any, and interest on any Bond at and after the
maturity thereof, or the obligation of the County to pay the
principal of, redemption premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at
the time, place, from the source and in the manner expressed in
the Bonds.
SECTION 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, or otherwise, and
such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely, then and in
every such case the County and the Trustee shall be restored to
their former positions and rights hereunder; and all rights,
remedies and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
SECTION 8.12. Waivers of Events of Default. The Trustee
may in its discretion waive any event of default hereunder and
its consequences and rescind any acceleration of maturity of
principal, and shall do so upon the written request of the
holders of (a) not less than two-thirds in principal amount of
all the Bonds then outstanding in respect of which default in the
payment of principal and/or interest exists, or (b) more than one-
half in principal amount of all Bonds then outstanding in the
case of any other default; provided, however, that there shall
not be waived (i) any event of default in the payment of the
principal of any outstanding Bonds at the date of maturity
specified therein or (ii) any default in the payment when due of
the interest on any such Bonds unless prior to such waiver or
rescission, all arrears of interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds in respect of
which such default shall have occurred on overdue installments of
interest or all arrears of payments of principal when due, as the
case may be, and all expenses of the Trustee in connection with
such default shall have been paid or provided for, and in cases
of any such waiver or rescission, or in case any proceeding taken
by the Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and in
every such case the County, the Trustee and the bondholders shall
be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to
any subsequent or other default, or impair any right consequent
thereon.
SECTION 8.13. Opportunity of County and Company to Cure
Defaults Under Section 8.01(c); Notice. With regard to any
alleged default concerning which notice is given to the County
and the Company under the provisions of Section 8.01(c), the
County hereby grants the Company full authority for the account
of the County to perform any covenant or obligation alleged in
said notice to constitute a default, in the name and stead of the
County with full power to do any and all things and acts to the
same extent that the County could do and perform any such things
and acts and with power of substitution.
In the event that the Trustee fails to receive any purchase
price installment when due under the Agreement, the Trustee shall
immediately give notice by overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Trustee, prior to the occurrence of an event
of default and after the curing of all events of default
which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture. In case an event of default has occurred (which
has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be
answerable for the conduct of the same in accordance with
the standard specified above, and shall be entitled to
advice of counsel concerning all matters of trusts hereof
and the duties hereunder, and may in all cases pay such
reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney (who may be the
attorney or attorneys for the County or the Company if
selected or retained prior to the occurrence of a default),
approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in
reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for
the recording or re-recording, filing or re-filing of this
Indenture, or any other instrument required by this
Indenture to secure the Bonds, or for insuring the Project
or collecting any insurance moneys, or for the validity of
the execution by the County of this Indenture or of any
supplements hereto or instruments of further assurance, or
for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby, or for the value
or title of the Project or otherwise as to the maintenance
of the security hereof.
(d) The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The
Trustee may become the owner of Bonds secured hereby with
the same rights which it would have if it were not the
Trustee. To the extent permitted by law, the Trustee may
also receive tenders and purchase in good faith Bonds from
itself, including any department, affiliate or subsidiary,
with like effect as if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it
to be genuine and correct and to have been signed or sent by
the proper person or persons. Any action taken by the
Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making
such request or giving such authority or consent is the
owner of any Bond, shall be conclusive and binding upon all
future owners of the same Bond and upon owners of Bonds
issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument,
paper or proceeding, the Trustee shall be entitled to rely
upon a certificate signed by the County Representative or
the Company Representative as sufficient evidence of the
facts therein contained; and, prior to the occurrence of a
default of which the Trustee has been notified as provided
in subsection (h) of this Section 9.01, or of which by said
subsection it is deemed to have notice, the Trustee shall
also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same. The Trustee
may accept a certificate of the [Clerk of the Board of
Supervisors] of the County under its seal to the effect that
a resolution in the form therein set forth has been adopted
by said County as conclusive evidence that such resolution
has been duly adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty, and it shall not be answerable for other than its
negligence or willful default.
(h) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the County to cause to be made any of the
payments to the Trustee required to be made by Article IV
hereof or the failure of the County or the Company to file
with the Trustee any document required by this Indenture or
the Agreement to be so filed subsequent to the issuance of
the bonds, unless the Trustee shall be specifically notified
in writing of such default by the County or by the holders
of at least twenty-five percent in aggregate principal
amount of Bonds then outstanding; and all notices or other
instruments required by this Indenture to be delivered to
the Trustee, must, in order to be effective, be delivered at
the principal office of the Trustee, and in the absence of
such notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully
to inspect all books, papers and records of the County
pertaining to the Bonds, and to take such memoranda from and
in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, which the Trustee in its discretion may deem
desirable for the purpose of establishing the right of the
County to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in this
Indenture, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all
expenses to which it may be put and to protect it against
all liability, except liability which is adjudicated to have
resulted from its negligence or willful default by reason of
any action so taken.
(m) All moneys received by the Trustee or any paying
agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they
were received but need not be segregated from other funds
except to the extent required by law. Neither the Trustee
nor any paying agent shall be under any liability for
interest on any moneys received hereunder except such as may
be mutually agreed upon.
SECTION 9.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement from the
Company for reasonable fees for its services rendered hereunder
and all advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an event of default, but only upon an event
of default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of, redemption
premium, if any, and interest on any Bond upon the trust estate
for the foregoing fees, charges and expenses incurred by it
respectively.
SECTION 9.03. Notice to Bondholders if Default Occurs. If
a default occurs of which the Trustee is by Section 9.01(h)
hereof required to take notice or if notice of default be given
as provided in Section 9.01(h), then the Trustee shall promptly
give written notice thereof by certified mail or telecopier
communication to each registered owner of Bonds then outstanding
and to each holder of Bonds then outstanding shown by the list of
bondholders required by the terms of Section 2.05 hereof to be
kept at the office of the Trustee, such notice to be given on the
next business day if Company defaults on an installment payment
under the Agreement.
SECTION 9.04. Intervention by Trustee. In any judicial
proceeding to which the County is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of the owners of the Bonds, the Trustee may
intervene on behalf of bondholders and shall do so if requested
in writing by the owners of at least twenty-five percent of the
aggregate principal amount of Bonds then outstanding. The rights
and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
SECTION 9.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party, shall be and become successor
Trustee hereunder and vested with all of the title to the trust
estate and all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without
the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 9.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving thirty days' written notice to the County and
by registered or certified mail to each registered owner of Bonds
then outstanding, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a
successor Trustee pursuant to Section 9.08 hereof. Such notice
to the County may be served personally or sent by registered
mail.
SECTION 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent instruments
in writing delivered to the Trustee and to the County, and signed
by the owners of a majority in aggregate principal amount of
Bonds then outstanding.
SECTION 9.08. Appointment of Successor Trustee by the
Bondholders; Temporary Trustee. In case the Trustee hereunder
shall resign or be removed, or be dissolved, or shall be in
course of dissolution or liquidation, or otherwise become
incapable of acting hereunder, or in case it shall be taken under
the control of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
County at the direction of the Company. The County shall publish
notice of such appointment once in each of two consecutive
calendar weeks in a newspaper or financial journal of general
circulation among dealers in municipal securities in the Borough
of Manhattan, City and State of New York. If the County fails to
make such appointment promptly, a successor may be appointed by
the owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 9.08 shall be a trust
company or bank in good standing having a reported capital and
surplus of not less than $6,000,000, if there be such an
institution willing, qualified and able to accept the trusts upon
reasonable and customary terms.
SECTION 9.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its predecessor and also to the County an
instrument in writing accepting such appointment hereunder, and
thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its
predecessors; but such predecessor shall, nevertheless, on the
written request of the County, or of its successor, execute and
deliver an instrument transferring to such successor Trustee all
the estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee hereunder
to its or his successor. Should any instrument in writing from
the County be required by any successor Trustee for more fully
and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the County.
The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this
Article IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the costs thereof.
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent. In the event of a
change of Trustee, the Trustee which has resigned or been removed
shall cease to be Bond Registrar and custodian of the Rebate Fund
and the Bond Fund and paying agent for principal and interest of
the Bonds and the successor Trustee shall become such Bond
Registrar, custodian and paying agent.
SECTION 9.11. Trustee and County Required to Accept
Directions and Actions of Company. Whenever after a reasonable
request by the Company the County shall fail, refuse or neglect
to give any direction to the Trustee or to require the Trustee to
take any action which the County is required to have the Trustee
take pursuant to the provisions of the Agreement or the
Indenture, the Company as agent of the County may give any such
direction to the Trustee or require the Trustee to take any such
action, and the Trustee is hereby irrevocably empowered and
directed to accept such direction from the Company as sufficient
for all purposes of the Indenture. The Company shall have the
right as agent of the County to cause the Trustee to comply with
any of the Trustee's obligations under the Indenture to the same
extent that the County is empowered so to do.
Certain actions or failures to act by the County under the
Indenture may create or result in an event of default under the
Indenture and the Company, as agent of the County, may, to the
extent permitted by law, perform any and all acts or take such
action as may be necessary for and on behalf of the County to
prevent or correct said event of default and the Trustee shall
take or accept such performance by the Company as performance by
the County in such event.
The County hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do all
things and perform all acts provided, and to the extent so
provided, by this Section 9.11.
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The County and the Trustee may with the
prior consent of the Company and with an opinion of Bond Counsel
to the effect that such action will not impair the exclusion of
the interest on the Bonds from gross income for purposes of
federal income taxation, but without the consent of, or notice
to, any of the bondholders, enter into an indenture or indentures
supplemental to this Indenture as shall not be inconsistent with
the terms and provisions hereof for any one or more of the
following purposes:
(a) to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such
manner as shall not in the opinion of the Trustee impair the
security hereof or adversely affect the bondholders;
(b) to grant to or confer upon the Trustee for the
benefit of the bondholders any additional rights, remedies,
powers or authorities that may lawfully be granted to or
conferred upon the bondholders or the Trustee;
(c) to add additional covenants of the County, or to
surrender any right or power herein conferred upon the
County;
(d) to subject to this Indenture additional revenues,
properties or collateral; and
(e) to modify, amend or supplement this Indenture or
any indenture supplemental hereto in such manner as to
permit the qualification hereof and thereof under the Trust
Indenture Act of 1939 or any similar federal statute
hereafter in effect or to permit the qualification of the
Bonds for sale under the securities laws of any of the
states of the United States, and, if they so determine, to
add to this Indenture or any indenture supplemental hereto
such other terms, conditions and provisions as may be
permitted by said Trust Indenture Act of 1939 or similar
federal statute.
SECTION 10.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by
Section 10.01 hereof and subject to the terms and provisions
contained in this Section 10.02, and not otherwise, the holders
of not less than a majority in aggregate principal amount of the
Bonds then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the Trustee for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any indenture
supplemental hereto; provided, however, that nothing in this
Section 10.02 contained shall permit, or be construed as
permitting (i) an extension of the maturity date of the principal
of or the interest on any Bond issued hereunder, (ii) a reduction
in the principal amount of, or redemption premium on, any Bond or
Bonds or the rate or rates of interest thereon, or (iii) a
reduction in the aggregate principal amount of the Bonds required
for consent to such supplemental indenture.
If at any time the County shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section 10.02, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to be published
as shall be requested by the County and in any event one time in
a newspaper or financial journal of general circulation among
dealers in municipal securities in the Borough of Manhattan, City
and State of New York. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal office of the
Trustee for inspection by all bondholders. If, within sixty days
or such longer period as shall be prescribed by the County
following the final publication of such notice, the holders of
not less than a majority in aggregate principal amount of the
Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained herein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the County from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture as in this
Section 10.02 permitted and provided, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and
without the necessity for notation on the outstanding bonds.
If, because of the temporary or permanent suspension of the
publication or general circulation of any newspaper or for any
other reason, it is impossible or impractical to publish any
notice required in this Section 10.02, then such publication in
lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of notice.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article X which affects the
rights of the Company shall not become effective unless and until
the Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen days prior to the
publication of notice of the proposed execution of such
supplemental indenture as provided in this Section 10.02. The
Company shall be deemed to have consented to the execution and
delivery of any such supplemental indenture if the Trustee
receives a letter or other instrument signed by an authorized
officer of the Company expressing consent.
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel. The Trustee is authorized to join with the
County in the execution and delivery of any supplemental
indenture permitted by this Article X and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such supplemental indenture is so
permitted and has been duly authorized by the County and that all
things necessary to make it a valid and binding supplemental
indenture have been done.
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, etc., to Agreement Not Requiring
Consent of Bondholders. The County and the Trustee shall,
without the consent of or notice to the bondholders, consent to
any amendment, change or modification of the Agreement as may be
(i) required by the provisions of the Agreement or this
Indenture, (ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) in connection with the Project so as to
more precisely identify the same or substitute or add additional
facilities acquired in accordance with the provisions of the
Agreement, or (iv) in connection with any other change therein
which, in the judgment of the Trustee, is not to the prejudice of
the Trustee or the holders of the Bonds; provided, however, that
as a condition of such consent, there may be required an opinion
of Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
SECTION 11.02. Amendments, etc., to Agreement Requiring
Consent of Bondholders. Except for the amendments, changes or
modifications as provided in Section 11.01 hereof, neither the
County nor the Trustee shall consent to any other amendment,
change or modification of the Agreement without publication of
notice and the written approval or consent of the holders of not
less than a majority in aggregate principal amount of the Bonds
at the time outstanding given and procured as in this Section
11.02 provided. If at any time the County and the Company shall
request the consent of the Trustee to any such proposed
amendment, change or modification of the Agreement, the Trustee
shall, upon being satisfactorily indemnified with respect to
expenses, cause notice of such proposed amendment, change or
modification to be published in the same manner as provided by
Section 10.02 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file with the Trustee
for inspection by all bondholders.
SECTION 11.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to
join with the County in the execution and delivery of any
amendment permitted by this Article XI and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such amendment is so permitted and
has been duly authorized by the County and that all things
necessary to make it a valid and binding agreement have been
done.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and executed
by the bondholders may be in any number of concurrent writings of
similar tenor and may be signed or executed by such bondholders
in person or by agent appointed in writing. Proof of the
execution of any such consent, request, direction, approval,
objection or other instrument or of the writing appointing any
such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the purposes of
this Indenture, and shall be conclusive in favor of the Trustee
with regard to any action taken by it under such request or other
instrument, namely the fact and date of the execution by any
person of any such writing may be proved by the certificate of
any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing
such writing acknowledged before him the execution thereof, or by
an affidavit of any witness to such execution. For all purposes
of this Indenture and of the proceedings for the enforcement
hereof, such person shall be deemed to continue to be the holder
of such Bond until the Trustee shall have received notice in
writing to the contrary.
SECTION 12.02. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds, is
intended or shall be construed to give to any person or company
other than the Company, the parties hereto, and the holders of
the Bonds, any legal or equitable right, remedy or claim under or
in respect of this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof are intended to be
and are for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein provided.
SECTION 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
SECTION 12.04. Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered
or certified mail, postage prepaid, or sent by telegram,
addressed as follows: If to the County, at _________, _________
_____; if to the Trustee, at ________________, ________,
___________ _____, Attention: Corporate Trust Administration
Department; and if to the Company at 308 East Pearl Street,
Jackson, Mississippi 39201, Attention: Treasurer. A duplicate
copy of each notice required to be given hereunder by either the
County or the Trustee shall also be given to the Company, and a
duplicate copy of each notice required to be given hereunder by
the Trustee to either the County or the Company shall also be
given to the other. The County, the Company and the Trustee may,
by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 12.05. Trustee as Paying Agent and Bond Registrar.
The Trustee is hereby designated and agrees to act as paying
agent and as Bond Registrar for and in respect to the Bonds.
SECTION 12.06. Payments Due on Sundays and Holidays. In
any case where the date of maturity of interest on or principal
of Bonds or the date fixed for redemption of any Bonds shall be
in the city of payment a Sunday or a legal holiday or a day on
which banking institutions are authorized by law to close, then
payment of interest or principal (and redemption premium, if any)
need not be made on such date but may be made on the next
succeeding business day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no
interest on such payment shall accrue for the period after such
date.
SECTION 12.07. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 12.08. Applicable Provisions of Law. This
Indenture shall be governed by and construed in accordance with
the laws of the State of [Mississippi.]
SECTION 12.09. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of
this Indenture.
SECTION 12.10. No Liability of County. No breach or
violation of any covenant, agreement or undertaking contained in
this Indenture shall impose any pecuniary liability upon the
County or any charge upon its general credit or against its
taxing powers, but the County shall nonetheless be obligated with
respect to, and liable to the extent of, revenues and receipts
specifically pledged herein.
<PAGE>
IN WITNESS WHEREOF, [GOVERNMENTAL AUTHORITY], has caused
this Indenture to be executed by the [President of its Board of
Supervisors,] and its seal to be hereunto affixed, attested by
the [Clerk of said Board,] and __________________, as Trustee,
has caused this Indenture to be executed and its corporate seal
to be hereunto affixed and attested, all by its duly authorized
officers, all as of the date first above written.
[GOVERNMENTAL AUTHORITY]
By:
__________________________
Attest:
_____________________________
________________________________,
TRUSTEE
By:
Attest:
_____________________________
<PAGE>
STATE OF ______________
COUNTY OF _____________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _____,
____, within my jurisdiction, the within named ________________
and __________________, duly identified before me, who
acknowledged that they are _______ and _______, respectively, of
the [Board of Supervisors] of [Governmental Authority], a County,
and that for and on behalf of said County, and as its act and
deed, they executed and sealed the above and foregoing
instrument, after first having been duly authorized by said
County so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF ____________________ SS.:
COUNTY OF ___________________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _____,
____, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of _______________________, and that for and on
behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
Exhibit B-6
[GOVERNMENTAL AUTHORITY]
AND
MISSISSIPPI POWER & LIGHT COMPANY
__________________
[FACILITY] AGREEMENT
__________________
Dated as of ________ __, ____
__________________
_____________________ Bonds, ____ Series
(Mississippi Power & Light Company Project)
<PAGE>
[FACILITY] AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this [Facility Agreement.)
Page
PARTIES 1
PREAMBLES 1
ARTICLE I
DEFINITIONS 2
ARTICLE II
Representations
SECTION 2.1. Representations by the County 4
SECTION 2.2. Representations by the Company 5
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; [Redemption of Prior Bonds]
SECTION 3.1. Construction and Equipping of the
Project 6
SECTION 3.2. Agreement to Issue Bonds;
Application of Bond Proceeds 6
[SECTION 3.3. Agreement to Redeem Prior Bonds] 6
SECTION 3.4. Disbursement of [Proceeds of Prior Bonds] 7
SECTION 3.5. Special Arbitrage Covenants 7
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement 7
SECTION 4.2. Sale of the Project Confirmed 7
SECTION 4.3. Use of the Project 8
SECTION 4.4. Purchase Price and Other Amounts
Payable 8
SECTION 4.5. Payments Assigned 9
SECTION 4.6. Indemnity Against Claims 9
SECTION 4.7. Maintenance of Project by Company 10
SECTION 4.8. Insurance Required 10
SECTION 4.9. Obligation of the Company Unconditional 10
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability
by the County 11
SECTION 5.2. Inspection of Books 11
SECTION 5.3. Company to Maintain its Corporate
Existence; Conditions Under Which
Exceptions Permitted 11
SECTION 5.4. Further Assurances and Corrective
Instruments 12
SECTION 5.5. County Representative 12
SECTION 5.6. Company Representative 12
SECTION 5.7. County's and Trustee's Access
to Project 12
SECTION 5.8. Non-Arbitrage Covenant 13
SECTION 5.9. Tax Exempt Status of Bonds 13
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease 13
SECTION 6.2. Redemption of Bonds 14
SECTION 6.3. Assignment and Pledge of Rights under the
Agreement 14
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined 14
SECTION 7.2. Remedies on Default 16
SECTION 7.3. No Remedy Exclusive 16
SECTION 7.4. Agreement to Pay Attorneys' Fees and
Expenses 17
SECTION 7.5. No Additional Waiver Implied by One
Waiver 17
SECTION 7.6. Remedial Rights Assigned to Trustee 17
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options 17
SECTION 8.2. Notice of Prepayment 19
SECTION 8.3. Relative Position of this Article and
Indenture 19
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices 19
SECTION 9.2. Binding Effect 20
SECTION 9.3. Severability 20
SECTION 9.4. Amounts Remaining in the Bond Fund 20
SECTION 9.5. Amendments, Changes and Modifications 20
SECTION 9.6. Execution in Counterparts 20
SECTION 9.7. Recording and Filing 20
SECTION 9.8. Applicable Law 21
SECTION 9.9. No Charge Against County's Credit 21
SECTION 9.10. Captions 21
Signatures and Seals 22
Exhibit A
Acknowledgments
<PAGE>
THIS [FACILITY] AGREEMENT (hereinafter called the
"Agreement") made and entered into as of ______ __, ____, by and
between [Governmental Authority], a public body corporate and
politic and a political subdivision of the State of [Mississippi]
(the "County"), and Mississippi Power & Light Company (the
"Company"), a corporation organized and existing under the Laws
of the State of Mississippi.
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
constitution and the laws of the State of [Mississippi,
especially Sections 49-17-101 through 49-17-123, Mississippi Code
of 1972, as amended (hereinafter called the "Pollution Control
Act"),] to acquire, purchase, construct, enlarge, expand and
improve facilities for eliminating, mitigating, and/or preventing
air and water pollution, to issue revenue bonds to defray the
cost of such facilities, and to execute an agreement with an
industry [(as defined in the Pollution Control Act)] for the sale
of such facilities to such industry; and
WHEREAS, the Company is an industry as defined in the
[Pollution Control Act;] and
[WHEREAS, pursuant to and in accordance with the provisions
of the [Pollution Control Act,] the County has heretofore on
_______ __, ____, issued $_____________ principal amount of its
_____________ Bonds, Series ___ (Mississippi Power & Light
Company Project) (the "Prior Bonds"), of which $_________
principal amount is now outstanding, pursuant to a Trust
Indenture dated as of __________ __, ____, whereunder
________________ is trustee (the "Prior Indenture"); and]
[WHEREAS, the Prior Bonds were issued] to defray the cost of
acquisition, construction, installation and equipping of certain
air and water pollution control facilities (the "Project") at the
____________________ (the "Plant") of the Company, located at
__________________, [Mississippi,] within __________________,
[Mississippi;] [the Project was sold by the County to the Company
pursuant to a ___________ Agreement between the County and the
Company dated as of ________, __, ____, (the "Prior Agreement");
the Company is now the owner and operator of the Plant and the
Project; and]
WHEREAS, at the request of the Company, the County proposes,
pursuant to [Sections 31-15-21 through 31-15-27, Mississippi Code
of 1972, as amended (the "Act"),] and a resolution duly and
validly adopted by the County on _____ ____, ____ (the "Issuing
Resolution"), to issue its _________________________ Bonds, _____
Series (Mississippi Power & Light Company Project) in the
aggregate principal amount of $___________ (the "Bonds") for the
purpose of providing funds, which, together with other funds
available therefor to be provided by the Company, [will be
sufficient to refund all of the Prior Bonds now outstanding,
including providing for the payment of any redemption premium due
or to become due thereon, interest to accrue to the selected
redemption date, any sinking fund maturities to become due prior
to the selected redemption date and all expenses in connection
with such refunding;] and
[WHEREAS, the County proposes to confirm and continue the
installment sale of the Project to the Company pursuant to the
terms and conditions of this [Facility] Agreement, which fully
amends and restates the Prior Agreement, and the County proposes
to refund the Prior Bonds pursuant to the terms and conditions
set forth in this Agreement by the issuance of the Bonds; and]
WHEREAS, the Issuer has received all authorizations,
approvals and consents required to be obtained prior to the
issuance of the Bonds; and
WHEREAS, the Company has received all authorizations,
approvals and consents required to be obtained prior to its entry
into this Agreement; and
[WHEREAS, the County and the Company desire to amend and
restate the Prior Agreement in its entirety and each of its
provisions by the [Facility] Agreement;]
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
Definitions
["Act" means Sections 31-15-21 through 31-15-27, Mississippi
Code of 1972, as amended.]
"Agreement" means this [Facility] Agreement and any
amendments and supplements thereto.
"Bonds" means the bonds of the County issued pursuant to
Section 2.02 of the Indenture.
"Bond Fund" means the fund created in Section 5.02 of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended,
including the regulations promulgated thereunder.
"Company" means Mississippi Power & Light Company, a
Mississippi corporation, and its successors and assigns and any
surviving, resulting or transferee corporation as provided in
Section 5.3 hereof.
"Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate
furnished to the County and the Trustee containing the specimen
signature of such person and signed on behalf of the Company by
the President or any Vice President of the Company. Such
certificate may designate an alternate or alternates. The
Company Representative may be an employee of the Company.
"Company's Tax Certificate and Covenants" means the
Company's Tax Certificate and Covenants and the Certificate of
Company Official With Respect To Projects Financed With The
[Prior Bonds] And Certain Other Matters, which is made an exhibit
thereto.
"County" means _______________, _____, a political
subdivision of the State of _______.
"County Representative" means the person at the time
designated to act in behalf of the County by written certificate
furnished to the Company and the Trustee containing the specimen
signature of such person and signed on behalf of the County by
the [President or Clerk of the Board of Supervisors] of the
County. Such certificate may designate an alternate or
alternates. The County Representative may be an employee of the
County.
"First Mortgage" means the Mortgage and Deed of Trust dated
as of September 1, 1944, as heretofore and hereafter supplemented
and amended, between the Company and Irving Trust Company (Bank
of New York, Successor) and Frederick G. Herbst (W. T.
Cunningham, successor), as trustees, securing first mortgage
bonds of the Company heretofore or which may hereafter be issued
thereunder.
"G&R Mortgage" means the Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore and hereafter supplemented
and amended, between the Company and Bank of Montreal Trust
Company and Z. George Klodnicki (Mark F. McLaughlin, successor),
as trustees, securing general and refunding mortgage bonds of the
Company heretofore or which may hereafter be issued thereunder.
"Government Obligations" means (a) direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged, or (b)
obligations issued by a person controlled or supervised by and
acting as an instrumentality of the United States of America, the
payment of the principal of, premium, if any, and interest on
which is fully and unconditionally guaranteed as a full faith and
credit obligation by the United States of America.
"Indenture" means the Trust Indenture dated as of _______
__, ____, between the County and __________________, as Trustee,
pursuant to which the Bonds are authorized to be issued and the
interest of the County in this Agreement and in the revenues and
receipts received by the County in respect of the Project as in
this Agreement provided are to be pledged and assigned, and any
indenture supplemental thereto.
"Permitted Encumbrances" means, as of any particular time,
(i) liens for taxes not then delinquent, (ii) this Agreement and
the Indenture, (iii) utility, access and other easements and
rights of way, restrictions and exceptions that the Company
Representative certifies will not interfere with the operation of
or impair the value of the Project, (iv) any mechanic's,
laborer's, materialman's, supplier's or vendor's lien or right in
respect thereof if payment is not yet due and payable, (v) such
minor defects, irregularities, encumbrances, easements, rights of
way, and clouds on title as normally exist with respect to
property similar in character to the Project and as do not, in
the opinion of counsel for the Company, materially impair the
property affected thereby for the purpose for which it was
acquired or is held by the County and (vi) the lien of the First
Mortgage and of the G&R Mortgage and excepted encumbrances as
therein defined.
"Plant" means the Company's ________________________ located
in the County.
["Pollution Control Act" means Sections 49-17-101 through 49-
17-123, Mississippi Code of 1972, as amended.]
"Project" means the [air and water pollution control]
facilities described in Exhibit A, as amended or revised, and the
Improvements thereto as permitted and installed pursuant to [the
Prior Agreement or] this Agreement.
"Trustee" means the trustee at the time serving as such
under the Indenture.
ARTICLE II
Representations
SECTION 2.1. Representations by the County. The County
represents and warrants that:
(a) The County is a political subdivision of the
State of ___________. Under the provisions of the
[Pollution Control Act,] the County has the power to enter
into the transactions contemplated by this Agreement and to
carry out its obligations hereunder. The County is duly
authorized to execute and deliver this Agreement. The
County agrees that it will do or cause to be done all things
necessary to preserve and keep in full force and effect its
existence.
(b) [The County through issuance of the Prior
Bonds provided funds for the acquiring, constructing,
installing and equipping of the Project, and has sold the
Project to the Company, which sale is hereby confirmed.]
(c) The County will, upon the request and at the
expense of the Company, cause the execution and delivery
from time to time to the Company of such further instruments
of conveyance as the Company deems to be necessary to effect
or evidence the conveyance to the Company of good and
marketable title to the Project, or any portion thereof,
subject only to Permitted Encumbrances.
(d) The County has authorized the issuance of not
exceeding $_______________ aggregate principal amount of its
Bonds on the terms set forth in the Indenture for the
purpose of providing funds which, together with other funds
available therefor to be provided by the Company, will be
sufficient to [refund the Prior Bonds.]
(e) The County has not assigned, and will not,
except as otherwise required by mandatory provisions of law,
assign its interest in this Agreement other than to secure
the Bonds.
SECTION 2.2. Representations by the Company. The
Company represents and warrants that:
(a) The Company is a corporation duly
incorporated and in good standing under the laws of the
State of Mississippi, has power to enter into, and to
perform and observe the agreements and covenants on its part
contained in, this Agreement and by proper corporate action
has duly authorized the execution and delivery of this
Agreement.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement will conflict with or
constitute a breach of or default under the Company's
corporate charter or any agreement or instrument to which
the Company is a party or by which it is bound.
([c) The Air and Water Pollution Control
Commission of the State of Mississippi on _______, __, ____,
found and certified that the Project is necessary and that
the design thereof will result in the elimination,
mitigation and/or prevention of air and water pollution.]
(d) The statements of fact and representations
made by the Company in the Company's Tax Certificate and
Covenants in connection with the determination of the tax-
exempt status of the interest on the Bonds are true and
correct in all material respects.
(e) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Agreement which
require said approval, and no consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
(f) The Company has good and marketable title to
the Project, free and clear of all claims, liens and
encumbrances other than Permitted Encumbrances.
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; [Redemption of Prior Bonds]
SECTION 3.1 Construction and Equipping of the Project.
[The County and the Company agree that the Project has been
acquired, constructed, installed and equipped.]
SECTION 3.2. Agreement to Issue Bonds; Application of Bond
Proceeds. In order to provide funds for the payment of the cost
of [refunding the $_______ principal amount of Prior Bonds
presently outstanding,] the County will issue and sell the Bonds
as and when requested by the Company, and shall deliver the
proceeds thereof as follows:
(a) To the Trustee for deposit in the Bond Fund, a sum
equal to the accrued interest, if any, paid by the original
purchasers of the Bonds; and
[(b) To the trustee for the Prior Bonds, the balance of
such proceeds.]
[SECTION 3.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the trustee for the Prior Bonds, in funds
available to the Trustee on ______ __, ____, the day immediately
preceding the redemption date of the Prior Bonds, for deposit
into the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay the principal of,
redemption premium and accrued interest due on the Prior Bonds,
to the extent that the amount delivered by the County pursuant to
Section 3.2(b) hereof is insufficient for such purpose. Unless
and until the deposit required by the preceding sentence of this
Section 3.3 shall have been timely made, all covenants, terms,
conditions and representations of the Company contained in the
Prior Agreement, including but not limited to Sections 4.4 and
4.7, shall remain in full force and effect as against the
Company, notwithstanding the entering into of this Agreement.]
[SECTION 3.4. Disbursement of Proceeds of Prior Bonds. The
Company represents and certifies that all proceeds of the Prior
Bonds have been disbursed as provided in the Prior Agreement.]
SECTION 3.5. Special Arbitrage Covenants. The Company
further covenants and represents to and for the benefit of the
purchasers of the Bonds that, on the basis of the facts,
estimates and circumstances now known and reasonably expected to
be in existence on the date or dates of issue of the Bonds, no
use will be made of the proceeds from the issue and sale of the
Bonds which would cause the Bonds to be classified as of the date
or dates of their issue as arbitrage bonds within the meaning of
Section 148 of the Code. The Company further covenants and
agrees to pay timely on behalf of the County Rebatable Arbitrage
(as defined in the Company's Tax Certificate and Covenants dated
and delivered on the date of issuance of the Bonds) to the United
States Government in accordance with the provisions of the Tax
Certificate in order to maintain continuous compliance with
Section 148 of the Code.
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the Bonds shall have been fully paid or provision
made for such payment.
SECTION 4.2. Sale of the Project Confirmed. In further
consideration of the Company's agreement to pay the purchase
price, payable in installments as set forth in this Agreement,
the County has conveyed and vested in the Company all of the
right, title and interest of the County in the Project.
SECTION 4.3. Use of the Project. The County hereby
covenants and agrees that it will not take any action, other than
pursuant to the exercise of its rights under Section 7.2 of this
Agreement, to prevent the Company from having possession and
enjoyment of the Project during the term of this Agreement and
will, at the request of the Company, and at the Company's cost,
cooperate with the Company in order that the Company may have
possession and enjoyment of the Project.
SECTION 4.4. Purchase Price and Other Amounts Payable.
During the term of this Agreement, the Company will pay to the
Trustee (in funds which will be immediately available funds on
the day when payment is due) for deposit into the Bond Fund as
the purchase price for the Project an amount equal to the
aggregate principal amount of the Bonds, and as interest on the
purchase price of the Project an amount equal to the interest and
premium (if any) on the Bonds, all of which shall be payable at
the times and in the amounts as follows: on the day when payment
thereof is due, commencing with the first interest payment date
on the Bonds and continuing thereafter until the principal of,
premium (if any) and interest on the Bonds shall have been fully
paid (or provision for the payment thereof shall have been made
in accordance with the Indenture), the Company shall pay amounts
as interest on, or as interest on and principal of, the purchase
price of the Project, as the case may be, which will be equal to
the amounts payable on such date, respectively, as interest on,
or as interest on premium (if any) and principal of, the Bonds,
as the case may be whether at the stated maturity or by mandatory
redemption thereof as provided in the Indenture, or on any other
date when the principal shall become, or be required to become,
due; provided, however, that no partial prepayment of the
purchase price of the Project and interest thereon pursuant to
Section 8.1 hereof shall limit the Company's obligation to pay
the amount of purchase price and interest thereon which, together
with such prepayment, shall equal the principal of, premium (if
any) and interest on the outstanding Bonds. In the event there
are available moneys in the Bond Fund on any payment date, such
moneys shall be credited against the purchase price or interest
payment then due, first in respect of interest on the purchase
price and then to the extent of remaining moneys, in respect of
principal of the purchase price.
The Company shall not be obligated to make any further
purchase price payments under this Section and the Company's
obligation to make purchase payments under this Section 4.4 shall
be deemed satisfied at any time that the entire principal,
premium (if any) and interest on the Bonds shall have been fully
paid in accordance with their terms, or any time that there shall
be in the Bond Fund an amount sufficient to pay, retire and
redeem all outstanding Bonds in accordance with the provisions of
the Indenture (including, without limiting the generality of the
foregoing, principal, interest to maturity or earliest applicable
redemption date, as the case may be, redemption premiums (if
any), expenses of redemption and Trustee's and paying agents'
fees).
The Company will also pay when due and payable (i) all
reasonable fees, expenses and charges of the Trustee and The
Depository Trust Company, (ii) all reasonable and necessary
expenses incurred by the County with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or Indenture, and (iii) any expenses in connection with
any registration or redemption of the Bonds.
SECTION 4.5. Payments Assigned. It is agreed that all
payments to be made by the Company pursuant to Section 4.4 of
this Agreement and all rights and interest of the County under
this Agreement (except for the County's rights under the last
paragraph of Section 4.4 and under Sections 4.6 and 7.4 hereof
and any rights of the County to receive notices, certificates,
requests, directions and other communications hereunder), are
assigned to the Trustee. The Company assents to such assignment
and hereby agrees that its obligation to make such payments shall
be absolute, irrevocable and unconditional and shall not be
subject to cancellation, termination or abatement, or to any
defense or any right of set-off, counterclaim or recoupment
arising out of any breach under this Agreement, the Indenture or
otherwise by the County or the Trustee or any other party, or out
of any indebtedness or liability at any time owing to the Company
by the County. The Company hereby agrees to pay to the Trustee
all of said payments payable by the Company pursuant to Section
4.4 of this Agreement at the times and in the amounts specified
herein, whether or not the Plant or the Project, or any portion
thereof, shall have been completed or shall have been destroyed
by fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain, and that there shall be no abatement of or diminution in
any such payments by reason thereof, whether or not the Plant or
the Project shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Plant or the Project, or for any other
reason.
SECTION 4.6. Indemnity Against Claims. The Company will
indemnify the County and the Trustee against claims arising out
of ownership and operation of the Project. The Company will also
pay and discharge and will indemnify and hold harmless the County
from any lien or charge upon payments by the Company to the
County hereunder. If any such claim is asserted, or any such
lien or charge upon payments, or any such taxes, assessments,
impositions or other charges, are sought to be imposed, the
County or the Trustee, as the case may be, will give prompt
notice to the Company, and the Company shall have the sole right
and duty to assume, and will assume, the defense thereof, with
full power to litigate, compromise or settle the same in its sole
discretion.
SECTION 4.7. Maintenance of Project by Company. The
Company agrees that at all times during the term of this
Agreement it will, so long as the Plant remains in operation,
maintain, preserve and keep the Project or cause the Project to
be maintained, preserved and kept with the appurtenances and
every part and parcel thereof, in good repair, working order and
condition and that it will from time to time make or cause to be
made all necessary and proper repairs, replacements and renewals;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project. In any instance where the Company determines that any
portion of the Project has become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, the Company may remove
such portion of the Project and sell, trade-in, exchange or
otherwise dispose of such removed portion without any
responsibility or accountability to the County, Trustee or the
Bondholders thereof.
SECTION 4.8. Insurance Required. The Company agrees to
insure the Project in such amounts and in such manner as its
similar properties are usually insured against loss or damage of
the kinds usually insured against by it, and to carry liability
insurance with respect to the Project in such amounts and in such
manner as are carried by it with respect to similar properties.
SECTION 4.9. Obligation of the Company Unconditional. The
obligation of the Company to make the payments pursuant to this
Agreement and to perform and observe the other agreements on its
part contained herein shall be absolute, irrevocable and
unconditional, and the Company's obligation to make payments
pursuant to Section 4.4 of this Agreement shall be further
subject to the provisions of Section 4.5 of this Agreement. Until
such time as the principal of, premium, if any, and interest on
the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture,
the Company (i) will not suspend or discontinue any payments
pursuant to this Agreement, (ii) will perform and observe all its
other agreements contained in this Agreement and (iii) except as
provided in Article VIII, will not terminate this Agreement for
any cause including, without limiting the generality of the
foregoing, loss of title to (or the temporary use of) the Project
by virtue of the exercise by others of the power of eminent
domain, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Project,
commercial frustration of purpose, any change in the tax or other
laws of the United States of America or of the State of
[Mississippi] or any political subdivision of either thereof or
any failure of the County to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing
contained in this Section 4.7 shall be construed to release the
County from the performance of any of the agreements on its part
herein contained; and, in the event the County shall fail to
perform any such agreement on its part, the Company may institute
such action against the County as the Company may deem necessary
to compel performance or recover its damages for nonperformance
so long as such action shall not violate the agreements on the
part of the Company contained in the preceding sentence, and in
no event shall the Company be entitled to any diminution of the
amounts payable under Section 4.4 hereof. The Company may,
however, at its own cost and expense and in its own name or in
the name of the County, prosecute or defend any action or
proceeding or take any other action involving third persons which
the Company deems reasonably necessary in order to insure, secure
or protect its right of possession, occupancy and use of the
Project, and in such event the County hereby agrees to cooperate
fully with the Company and to take all action necessary to effect
the substitution of the Company for the County in any such action
or proceeding if the Company shall so request.
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability by the
County. The County makes no warranty, either express or implied,
as to the Project or that it will be suitable for the Company's
purposes or needs.
SECTION 5.2. Inspection of Books. The County and the
Trustee shall be permitted, at all reasonable times, to examine
the books and records of the Company with respect to the Bonds.
SECTION 5.3. Company to Maintain its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees
that during the term of this Agreement it will maintain its
corporate existence and qualification to do business in the State
of Mississippi [and Arkansas], will not dissolve or otherwise
dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one
or more other corporations to consolidate with or merge into it;
provided, that the Company may, without violating the agreements
contained in this Section 5.3, consolidate with or merge into
another domestic corporation (i.e., a corporation incorporated
and existing under the laws of one of the States of the United
States of America or under the laws of the United States of
America) or permit one or more other corporations to consolidate
with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an
entirety and thereafter dissolve; provided, in the event the
Company is not the surviving, resulting or transferee
corporation, as the case may be, that the surviving, resulting or
transferee corporation assumes, accepts and agrees in writing to
pay and perform all of the obligations of the Company herein and
is a Mississippi corporation or is qualified to do business in
the State of Mississippi [and Arkansas] as a foreign corporation
or appoints an agent for service of process in the State of
Mississippi [and Arkansas].
SECTION 5.4. Further Assurances and Corrective Instruments.
The County and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of
this Agreement.
SECTION 5.5. County Representative. Whenever under the
provisions of this Agreement the approval of the County is
required or the County is required to take some action at the
request of the Company, such approval shall be made or such
action shall be taken by the County Representative to the extent
permitted by law; and the Company and the Trustee shall be
authorized to act on any such approval or action and the County
shall have no complaint against the Company or the Trustee as a
result of any such action taken.
SECTION 5.6. Company Representative. Whenever under the
provisions of this Agreement the approval of the Company is
required or the Company is required to take some action at the
request of the County, such approval or such request shall be
made by the Company Representative; and the County or the Trustee
shall be authorized to act on any such approval or request and
the Company shall have no complaint against the County or the
Trustee as a result of any such action taken.
SECTION 5.7. County's and Trustee's Access to Project. The
County and the Trustee shall have the right, upon appropriate
prior notice to the Company, to have reasonable access to the
Project during normal business hours for the purpose of making
examinations and inspections of the same; provided, however, that
the foregoing shall not require the Company to permit inspection
of any properties or records to an extent which would require the
Company to reveal any of its proprietary information or trade
secrets.
SECTION 5.8. Non-Arbitrage Covenant. The Company and the
County covenant that they shall take no action, nor shall the
Company direct or approve the Trustee's taking any action or
making any investment or use of the proceeds of the Bonds, which
would cause the Bonds to be "arbitrage bonds" within the meaning
of Section 148 of the Code, including any proposed or final
regulations thereunder that may be applicable to the Bonds at the
time of such action, investment or use.
SECTION 5.9. Tax Exempt Status of Bonds. The Company
covenants and agrees that it shall not take or authorize or
permit any action to be taken, and has not taken or authorized or
permitted any action to be taken, which adversely affects the
exclusion of interest on the Bonds from gross income for purposes
of federal income taxes pursuant to Section 103 of the Code.
Without limiting the generality of the foregoing, the Company
further covenants and agrees as follows:
(a) No changes have been or will be made in the
Project which in any way adversely affect the exclusion of
interest on any of the Bonds from gross income for purposes
of federal income taxation pursuant to Section 103 of the
Code;
(b) No action shall be taken that will cause the Bonds
to be "federally guaranteed" as defined in Section 149(b) of
the Code; and
(c) No portion of the proceeds of the Bonds in excess
of 2% of the proceeds thereof (within the meaning of Section
147(g) of the Code) will be used to finance costs of
issuance of the Bonds.
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease. This Agreement may be
assigned, and the Project may be sold or leased as a whole or in
part, by the Company without the necessity of obtaining the
consent of either the County or the Trustee, subject, however, to
the condition that no assignment, sale or leasing (other than
pursuant to Section 5.3 hereof) shall relieve the Company from
primary liability for any of its obligations hereunder, and in
the event of any such assignment, sale or leasing, the Company
shall continue to remain primarily liable for payments of the
amounts specified in Section 4.4 to the same extent as though no
assignment or lease had been made. Furthermore, any assignee of
the Company's interest in this Agreement shall assume the
obligations of the Company hereunder to the extent of the
interest assigned, and the Company shall, promptly upon the
making of any assignment, furnish or cause to be furnished to the
County and to the Trustee a true and complete copy of each such
assignment and assumption of obligations.
SECTION 6.2. Redemption of Bonds. Upon the Company's
deposit of moneys in the Bond Fund in an amount sufficient to
redeem Bonds then subject to redemption, the County, at the
request of the Company, shall forthwith take all steps necessary
under the applicable redemption provisions of the Indenture to
effect redemption of all or part of the then outstanding Bonds,
as may be specified by the Company, on the redemption date
specified by the Company; provided that, the date of any such
redemption shall not be less than forty-five (45) days from the
date each such redemption request is given, unless the County
shall agree to a shorter period.
SECTION 6.3. Assignment and Pledge of Rights Under the
Agreement. The County shall assign its rights under this
Agreement and shall pledge any moneys receivable under this
Agreement to the Trustee as security for payment of the principal
of, premium, if any, and interest on the Bonds.
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined. The following
shall be "events of default" under this Agreement and the terms
"event of default" or "default" shall mean, whenever they are
used in this Agreement, any one or more of the following events:
(a) Failure by the Company to pay when due the
amounts required to be paid pursuant to the first paragraph
of Section 4.4 of this Agreement, which failure shall have
resulted in an "event of default" under Section 8.01(a) or
(b) of the Indenture.
(b) Failure by the Company to pay when due any
other amount required to be paid under this Agreement or to
observe and perform any other covenant, condition or
agreement on its part to be observed or performed, other
than as referred to in subsection (a) of this Section 7.1,
for a period of ninety (90) days after written notice,
specifying such failure and requesting that it be remedied,
is given to the Company by the County or the Trustee, unless
the County and the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the County and the
Trustee will not unreasonably withhold their consent to an
extension of such time if corrective action is instituted by
the Company within the applicable period and is being
diligently pursued.
(c) The expiration of a period of sixty (60) days
following the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the
Company under the United States Bankruptcy Code or any other
applicable Federal or State law of a similar nature, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of or for
the Company or any substantial part of its property, or
ordering the winding up or liquidation of its affairs unless
during such period such decree, order or appointment of a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official shall be vacated or
shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect.
(d) The commencement by the Company of a voluntary
case, or the institution by it of proceedings, to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization, arrangement or relief under
the United States Bankruptcy Code or any other applicable
Federal or State law of a similar nature, or the consent or
acquiescence by it to the filing of any such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any substantial
part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action.
The foregoing provisions of this Section 7.1 are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements on its
part herein contained, other than the obligations on the part of
the Company contained in Article IV hereof, the Company shall not
be deemed in default during the continuance of such inability.
The term "force majeure" as used herein shall mean, without
limitation, the following: acts of God; strikes; lockouts or
other industrial disturbances; acts of public enemies; orders of
any kind of the government of the United States or of the State
of [Mississippi] or any of their departments, agencies or
officials, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraints of government and people; civil disturbances;
explosions; breakage or accident to machinery, transmission
lines, pipes or canals; partial or entire failure of utilities;
or any other cause or event not reasonably within the control of
the Company. The Company agrees, however, to remedy with all
reasonable dispatch the cause or causes preventing the Company
from carrying out its agreements; provided, that the settlement
of strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is in the judgment of
the Company unfavorable to the Company.
SECTION 7.2. Remedies on Default. As provided in Section
7.6 hereof, whenever any event of default referred to in Section
7.1 hereof shall have occurred and be continuing, and further
upon the condition that the Bonds shall have become due and
payable pursuant to any provision of the Indenture:
(a) Payments required to be paid pursuant to
Section 4.4 of this Agreement shall, without further action,
become and be immediately due and payable.
(b) The Trustee shall have access to and may
inspect, examine and make copies of the books and records
and any and all accounts, data and income tax and other tax
returns of the Company.
(c) The Trustee may take whatever action at law
or in equity may appear necessary or desirable to collect
the amounts referred to in (a) above, then due and
thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the
Company under this Agreement.
Any amounts collected pursuant to action taken under this Section
7.2 shall be paid into the Bond Fund and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture), to the Company.
SECTION 7.3. No Remedy Exclusive. No remedy herein
conferred upon the Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon default shall impair
any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient.
SECTION 7.4. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should default under any of the
provisions of this Agreement and the County or the Trustee should
employ attorneys or incur other expenses for the collection of
amounts payable hereunder or the enforcement or performance or
observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees that it will on
demand therefor pay to the County or the Trustee the reasonable
fees of such attorneys and such other expenses so incurred by the
County or the Trustee.
SECTION 7.5. No Additional Waiver Implied by One Waiver.
In the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights in
and under this Agreement to the Trustee under the Indenture, the
Issuer shall have no power to waive any default hereunder by the
Company without the consent of the Trustee.
SECTION 7.6. Remedial Rights Assigned To Trustee. Upon the
execution and delivery of the Indenture, the Trustee shall have
the exclusive right to exercise all rights and remedies granted
by this Article VII in the same manner and under the limitations
and conditions that the Trustee is entitled to exercise rights
and remedies upon the occurrence of an event of default pursuant
to Article VIII of the Indenture.
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options. The Company shall have, and is
hereby granted, options to prepay the purchase price for the
Project in whole and to cancel or terminate this Agreement, and
to prepay the purchase price of the Project in part, as follows:
(a) At any time, so long as the Company is not in
default under this Agreement, the Company may prepay (i) the
entire purchase price together with accrued interest thereon
and terminate this Agreement, by paying moneys to the
Trustee for deposit in the Bond Fund which, after crediting
against the purchase price and accrued interest thereon the
amount then on deposit in the Bond Fund, will be equal to an
amount sufficient, or by delivering Government Obligations
or certificates of deposit of a qualified depository of the
State of [Mississippi] fully secured by Government
Obligations to the Trustee for deposit in the Bond Fund, the
principal of and the interest on which when due, after
crediting against the purchase price and accrued interest
thereon the amount then on deposit in the Bond Fund, will be
equal to an amount sufficient to pay the principal of all
Bonds to be outstanding on a date selected for redemption
(which date, under the Indenture, must be on or after ______
__, ____), interest to accrue on said Bonds to said date,
the redemption premium, if any, payable upon said date and
by paying or making provision for paying all fees and
expenses of the Trustee and any paying agents accrued or to
accrue to said date and by making arrangements satisfactory
to the Trustee for the giving at the appropriate time of the
required notice of redemption calling all Bonds to be
outstanding on said date of redemption; or (ii) part of the
purchase price and the County agrees that the Trustee may
accept such prepayments of purchase price payments when the
same are tendered by the Company; all purchase price
payments so prepaid under this part (ii) shall be paid to
the Trustee for deposit in the Bond Fund and credited
against the purchase price and interest obligation provided
in Section 4.4 hereof, or shall be used for the redemption
if the Bonds are then subject to redemption, or, at the
election of the Company, purchase of outstanding Bonds in
the manner and to the extent provided in the Indenture;
(b) If the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason, the Company may
prepay the entire purchase price and accrued interest
thereon and terminate this Agreement as hereinbefore
provided;
(c) If the Company shall have determined that the
continued operation of the Project is impracticable,
uneconomical or undesirable due to (i) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Project, or other liabilities or burdens with respect
to the Project or the operation thereof, (ii) changes in
technology, in environmental standards or legal requirements
or in the economic availability of materials, supplies,
equipment or labor or (iii) destruction of or damage to all
or part of the Project, the Company may prepay the entire
purchase price and accrued interest thereon and terminate
this Agreement as hereinafter provided;
(d) If all or substantially all of the Project or
the Plant, shall have been condemned or taken by eminent
domain, the Company may prepay the entire purchase price and
accrued interest thereon and terminate this Agreement as
hereinbefore provided;
(e) If the operation of the Project or the Plant
shall have been enjoined or shall have otherwise been
prohibited by an order, decree, rule or regulation of any
court or of any federal, state or local regulatory body,
administrative agency or other governmental body, the
Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as
hereinbefore provided.
The amount payable by the Company in the event of its
exercise of the right of accelerated payment of the purchase
price and interest pursuant to paragraphs (b), (c), (d) and (e)
of this Section 8.1 shall be the sum of (i) an amount of money to
be paid into the Bond Fund which, after crediting against such
amount the amount then on deposit in the Bond Fund and available
for such purpose, will be sufficient to retire and redeem at the
principal amount thereof all the outstanding Bonds on the date on
which such Bonds will be redeemed, including without limitation,
principal, all interest accrued or to accrue to the date of
redemption and redemption expenses but without premium, plus (ii)
an amount of money equal to the Trustee's and paying agents' fees
and expenses under the Indenture, and the expenses of the County
approved by the Company, accrued and to accrue until such final
payment and redemption of the Bonds.
SECTION 8.2. Notice of Prepayment. To exercise an option
granted in or to consummate a prepayment pursuant to this Article
VIII, the Company shall give written notice to the County and the
Trustee at least fifteen (15) days before the Trustee is required
to give notice of such prepayment which notice shall specify
therein the date of closing of the prepayment, which date shall
be not less than 45 days nor more than 90 days from the date the
notice is mailed and, in case of redemption of the Bonds, the
Company shall make arrangements satisfactory to the Trustee for
the giving of the required notice of redemption.
SECTION 8.3. Relative Position of this Article and
Indenture. The rights and options granted to the Company in
Section 8.1 hereof shall be and remain prior and superior to the
Indenture and may be exercised or shall be fulfilled, as the case
may be, whether or not the Company is in default hereunder,
provided that such default will not result in nonfulfillment of
any condition to the exercise of any such right or option.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the County, at
the office of the ________________, _________________,
_______________, _______ ______; if to the Company, at 308 East
Pearl Street, Jackson, Mississippi 39201; and if to the Trustee,
at __________________, ________, ______ ____, Attention:
Corporate Trust Department. A duplicate copy of each notice,
certificate or other communication given hereunder by either the
County or the Company or the other shall also be given to the
Trustee. The County, the Company and the Trustee may, by notice
given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications
shall be sent.
SECTION 9.2. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the County, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Sections 5.3, 6.1 and 6.3 hereof.
SECTION 9.3. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
SECTION 9.4. Amounts Remaining in the Bond Fund. Any
amounts remaining in the Bond Fund upon expiration or sooner
termination of the terms of this Agreement, after payment in full
of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and the fees
and expenses of the Trustee and any paying agents in accordance
with the Indenture, shall belong to and be paid to the Company by
the Trustee.
SECTION 9.5. Amendments, Changes and Modifications.
Subsequent to the issuance of the Bonds and prior to their
payment in full (or provision for the payment thereof having been
made in accordance with the provisions of the Indenture), this
Agreement may not be effectively amended, changed, modified,
altered or terminated except with the prior written consent of
the Trustee (which shall not be unreasonably withheld) and in
accordance with the Indenture.
SECTION 9.6. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 9.7. Recording and Filing. The Company shall take
all actions that at the time and from time to time may be
necessary (or, in the opinion of the Trustee, may be necessary)
to perfect, preserve, protect and secure the interests of the
County and the Trustee, or either, in and to the receipts,
revenues and other amounts derived under this Agreement with
respect to the Project, including, without limitation, the filing
of all financing and continuation statements that may be required
under the [Mississippi] Uniform Commercial Code.
SECTION 9.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of [Mississippi.]
SECTION 9.9. No Charge Against County's Credit. This
Agreement shall inure to the benefit of and shall be binding upon
the County, the Company and their respective successors and
assigns, but no breach of any provision hereof shall ever
constitute or give rise to a pecuniary liability of the County,
or a charge against its general credit or taxing powers nor shall
the county be obligated hereunder except with respect to the
proper application of the proceeds to be derived from the sale of
the Bonds and the revenue and receipts to be derived by it from
the sale of the Project or any part thereof.
SECTION 9.10. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Agreement.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
<PAGE>
IN WITNESS WHEREOF, the County and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective seals to be hereunto affixed and attested by
their duly authorized officers, all as of the date first written.
[GOVERNMENTAL AUTHORITY]
By:
___________________________
Attest:
_________________________________
MISSISSIPPI POWER & LIGHT COMPANY
By:
Attest:
______________________________
<PAGE>
Exhibit A to
[Facility] Agreement
Between [Governmental Authority]
and Mississippi Power & Light Company
DESCRIPTION OF PROJECT
<PAGE>
STATE OF ____________ SS.:
COUNTY OF ___________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _______,
____, within my jurisdiction, the within named _________________
and __________________, duly identified before me, who
acknowledged that they are _______________ and ___________,
respectively, of the _________________ of _____________,
_____________, a County, and that for and on behalf of said
County, and as its act and deed, they executed and sealed the
above and foregoing instrument, after first having been duly
authorized by said County so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
<PAGE>
STATE OF LOUISIANA SS.:
PARISH OF _____________
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this ____ day of _______,
____, within my jurisdiction, the within named
______________________________ and _____________________________,
duly identified before me, who acknowledged that they are
______________________________ and _____________________________,
respectively, of Mississippi Power & Light Company, and that for
and on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
Exhibit B-8
____________, 1996
To prospective purchasers
of the Debentures of
Mississippi Power & Light Company
Gentlemen:
Mississippi Power & Light Company ("Company") expects to
issue and sell in one or more series at one time or from
time to time not to exceed $75,000,000 aggregate principal
amount of its unsecured Debentures ("Debentures"). The
Company will receive proposals for the purchase of all or
such portion of the Debentures as may be designated by the
Company to prospective purchasers.
Enclosed please find copies of a prospectus dated
__________________ relating to the Debentures, a
questionnaire to be used in furnishing certain information
to the Company and an Underwriting Agreement for use in
submitting a proposal. You may obtain copies of the
registration statement relating to the Debentures and of the
documents incorporated by reference in the prospectus by
contacting
____________________________________________________________
___________.
The Company will give notice ("Notice") to two or more of
the following prospective purchasers: Morgan Stanley & Co.
Incorporated, Merrill Lynch & Co., Salomon Brothers Inc.,
The First Boston Corporation, Smith Barney, Harris Upham &
Co. Incorporated, Stephens Inc., Bear, Stearns & Co., Inc.,
UBS Securities Inc., Prudential Securities, Inc., Morgan
Keegan & Co., Inc., Shearson Lehman Brothers, Inc., J. P.
Morgan Securities Inc., Goldman, Sachs & Co., A. G. Edwards
& Sons, Inc., Chase Securities Inc. and J. C. Bradford & Co.
at least two (2) hours prior to the time proposals are to be
submitted of (i) the principal amount of the Debentures
being offered, (ii) the date on which such Debentures will
be issued, (iii) the maturity date of such Debentures, (iv)
the date from which interest will accrue, (v) the range
within which the price offered to the Company by the
prospective purchasers of the Debentures would be
acceptable, (vi) whether the Company will provide, or will
permit prospective purchasers to provide, an insurance
policy for the payment of the principal of and/or interest
on the Debentures being offered and, if such an insurance
policy will be provided by the Company, the terms thereof,
(vii) the date, time and location for the submission of
proposals, (viii) the manner in which proposals are to be
submitted, (ix) whether the redemption provisions described
in Appendix A hereto will be applicable to the Debentures
being offered and the terms of any other redemption
provisions that may be applicable and (x) whether the
dividend covenant described in Appendix A hereto will be
applicable to the Debentures being offered. The Company
will also make available to prospective purchasers, prior to
the time proposals are to be submitted, a description of the
procedures that will be used by the Company to determine the
winning proposal. Various basic terms relating to the
Debentures are set forth in Appendix A hereto.
Winthrop, Stimpson, Putnam & Roberts, One Battery Park
Plaza, New York, N.Y. 10004 (telephone number 212-858-
1000), is acting as purchasers' counsel. Should you wish to
discuss the legal aspects of the offering or the fees and
disbursements of such counsel, please contact David P.
Falck, Esq. of that firm. Such counsel have prepared a
preliminary memorandum with respect to the qualification of
the Debentures under the "blue sky" laws of various
jurisdictions. Copies of this memorandum may be obtained
from Mr. Falck.
Very truly yours,
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
William J. Regan, Jr.
Vice President and Treasurer
<PAGE>
APPENDIX A
MISSISSIPPI POWER & LIGHT COMPANY
Summary of Terms
Relating to the Purchase of Debentures of a Particular
Series
Principal Amount To be designated by the Company in the
Notice.
Date of Issuance To be designated by the Company in the
Notice.
Date of Maturity To be designated by the Company in the
Notice.
Date from which
Interest will To be designated by the Company in the
Accrue Notice.
Interest Rate The annual interest rate shall be as set
forth in the Underwriting Agreement
submitted by the successful underwriter
or underwriters and shall be a multiple
of 0.125% (1/8th of 1%).
Insurance If the Company determines to provide, or
to permit prospective purchasers to
provide, an insurance policy for the
payment of the principal of and/or
interest on one or more series of the
Debentures, the Company will so state in
the Notice. If such an insurance policy
is to be provided by the Company, the
terms thereof will be described in the
Notice.
Sinking Fund See the accompanying prospectus relating
to the Debentures.
Dividend Covenant, if If specified in the Notice, the Company
any will covenant in substance that, so long
as any Debentures of the particular
series being offered remain outstanding,
it will not pay any cash dividends on
common stock after a selected date close
to the date of the original issuance of
such series of Debentures (other than
certain dividends that may be declared by
the Company prior to the original
issuance of such series of Debentures)
except from credits to earned surplus
after such selected date plus an amount
of up to $345 million and plus such
additional amounts as shall be approved
by the Securities and Exchange
Commission.
Price to Company The price shall be as set forth in the
Underwriting Agreement submitted by the
successful purchaser or purchasers and
shall be within a range of not more than
five percentage points (as designated by
the Company in the Notice), which range
shall be within 95% and 105% of the
principal amount, plus accrued interest
at the rate set forth in such
Underwriting Agreement.
Redemption Provisions Unless otherwise stated in the Notice,
the following redemption provisions shall
be applicable: For the purpose of
determining the redemption prices of the
Debentures: (a) the term "annual
redemption period" shall mean the twelve
month period beginning (1) on the first
day of the calendar month in which the
Debentures are issued in each calendar
year, beginning with the calendar year in
which the Debentures are issued, and
ending on the last day of the preceding
calendar month of the next succeeding
calendar year; except that, if the
Debentures are issued in the month of
January, and bear interest from the first
day of January, then ending on the last
day of December in the same calendar
year, or (2) if the Debentures bear
interest from the 15th day of the month
in which the Debentures are issued, then
beginning on the 15th day of said month,
and ending on the 14th day of the same
calendar month of the next succeeding
calendar year; (b) the term "stated
interest rate" shall mean the stated
interest rate per annum to be set forth
in the Debentures (stated as a percentage
of the principal amount thereof), as
specified in the successful proposal; (c)
the term "initial public offering price"
shall mean the single fixed price (stated
as a percentage of the principal amount
of the Debentures and exclusive of
accrued interest) at which the Debentures
are to be initially offered for sale to
the public by the successful purchaser or
purchasers, as specified by them at the
time of the acceptance of the successful
proposal and as set forth in the
supplement to the Prospectus relating to
the Debentures to be filed with the
Securities and Exchange Commission
following the acceptance of the
successful proposal; provided, however,
that if the successful purchaser or
purchasers shall specify at the time of
the acceptance of the successful proposal
that they do not intend to make a public
offering of the Debentures at a single
fixed price, the term "initial public
offering price" shall mean the price
(stated as a percentage of the principal
amount of the Debentures and exclusive of
accrued interest) to be paid by the
successful purchaser or purchasers to the
Company for the Debentures; (d) the term
"initial unadjusted premium" shall mean
the amount (stated as a percentage of the
principal amount of the Debentures and
before the adjustment provided for below)
by which the initial public offering
price plus the stated interest rate shall
exceed 100% of the principal amount of
the Debentures; (e) the term "applicable
fraction" shall mean a fraction, the
numerator of which shall be one and the
denominator of which shall be the lesser
of (i) 24 or (ii) two less than the
number of years from the date of the
Debentures to their stated maturity;
provided, however, that the denominator
shall never be less than four; and (f)
the term "date of issue" shall mean the
day of the calendar month in which the
Debentures are issued from which interest
accrues.
The general redemption prices of the
Debentures shall be, for and during the
first annual redemption period, 100% of
their principal amount plus the initial
unadjusted premium: for and during each
annual redemption period thereafter until
the annual redemption period for which
the general redemption price shall be
reduced to 100% of their principal amount
without premium, 100% of their principal
amount plus a premium equal to the
initial unadjusted premium, less an
amount equal to the applicable fraction
of the initial unadjusted premium
multiplied by the number of annual
redemption periods which shall have
passed between the date of issue and the
date fixed for redemption; and for and
during each annual redemption period
thereafter, 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption; provided,
however, that the general redemption
prices shall never be less than the
special redemption prices. The Company
may determine to limit for a period of
years set forth in the Notice its ability
to redeem the Debentures under
circumstances where general redemption
prices would be applicable, if such
redemption is for the purpose or in
anticipation of refunding such Debentures
through the use, directly or indirectly,
of funds borrowed by the Company at an
effective interest cost to the Company
(computed in accordance with generally
accepted financial practice) of less than
the "effective interest cost" (stated as
a multiple of 0.0001% (1/10,000th of 1%),
of the Debentures. The "effective cost"
will be the yield based on the date of
maturity of the Debentures, the interest
rate to be borne thereby and the price to
the Company (exclusive of accrued
interest) for the Debentures.
For the purpose of determining the
special redemption price applicable for
and during any annual redemption period
of the
Debentures which are to be reoffered at a
single fixed price, the stated interest
rate to be borne by such Debentures, a
term equal to the number of years from
the beginning of each such redemption
period to the stated maturity, and the
basic yield of such Debentures shall be
used. The term "basic yield" for such
purpose shall mean the percentage yield,
computed to at least eight decimal places
and calculated on the basis of (a) the
initial public offering price, (b) the
stated interest rate and (c) the date of
maturity of such Debentures. The special
redemption price of such Debentures
applicable for and during any annual
redemption period shall be such price as
will produce a yield equal to the basic
yield, except that for and during any
annual redemption period for which the
general redemption price of such
Debentures shall be 100% of their
principal amount without premium, the
special redemption price shall be 100% of
their principal amount without premium,
and except that, if the initial public
offering price is 100% of the principal
amount of such Debentures or less, the
special redemption price of such
Debentures during each annual redemption
period shall be 100% of their principal
amount without premium; in each case
together with accrued interest to the
date fixed for redemption. The special
redemption price applicable for and
during any annual redemption period of
such Debentures which are not reoffered
at a single fixed price shall be 100% of
their principal amount without premium,
together with accrued interest to the
date fixed for redemption.
If, in any case, other than the initial
general and special redemption prices, a
redemption price computed as hereinabove
set forth shall not be a multiple of
0.01% (1/100 of 1%) and if the remainder
of dividing such price by .01% is greater
than .5, the price shall be rounded up to
the next higher multiplier of .01%;
otherwise it shall be rounded down to the
next lower multiple of .01%.
If the foregoing redemption provisions
shall not be applicable, the Company will
specify in the Notice the applicable
redemption provisions, which could
include, for example, an absolute
prohibition on redemption for a period of
years or for the life of the Debentures.
Registration No. 33-__________
Statements
Miscellaneous For further information regarding the
terms of the Debentures, please refer to
the accompanying Prospectus relating to
the Debentures.
The Underwriting Agreement submitted by
the successful purchaser or purchasers
shall, upon acceptance by the Company,
become effective as and constitute the
agreement between the Company and such
purchaser or purchasers covering the sale
and purchase of the Debentures.
Exhibit B-9
[FORM OF DEBENTURE UNDERWRITING AGREEMENT]
MISSISSIPPI POWER & LIGHT COMPANY
$____________________
______% Debentures due _____________ ___, _____
UNDERWRITING AGREEMENT
_______________ ____, ______
[Underwriters]
c/o [Lead Underwriter]
[Address]
Ladies & Gentlemen:
The undersigned, Mississippi Power & Light Company, a
Mississippi corporation (the "Company"), proposes to issue and
sell severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided)
an aggregate of $_________________ principal amount of the
Company's ______% Debentures due _____________ ___, _____ (the
"Debentures"), as follows:
SECTION 1. Purchase and Sale. On the basis of the
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall
issue and sell to each of the Underwriters and each Underwriter
shall purchase from the Company at the time and place herein
specified, severally and not jointly, the respective principal
amounts of the Debentures set forth opposite the name of such
Underwriter in Schedule I attached hereto at _____% of the
principal amount of the Debentures plus accrued interest thereon
from ____________ ___, _____, to the Closing Date (as defined
herein).
SECTION 2. Description of Debentures. The Debentures
shall be issued under and pursuant to an Indenture dated as of
____________ ___, _____ (the "Indenture") between the Company and
______________________, 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
Mississippi, is in good standing and duly qualified to do
business in 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-___________) for the registration of
$_______________ 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
$_______________ 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 possesses adequate franchises, licenses,
permits, and other rights to conduct its business and operations
as now conducted, and without any known conflicts with the rights
of others which could have a material adverse effect on the
Company.
SECTION 4. Offering. The Company is advised by the
Underwriters that they propose to make a public offering of their
respective portions of the Debentures as soon after the
effectiveness of the Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Debentures will be offered to the public at the initial
public offering price specified in the Prospectus Supplement plus
accrued interest thereon from _____________ ___, _____ to the
Closing Date.
SECTION 5. Time and Place of Closing. Delivery of the
Debentures and payment of the purchase price therefor by wire
transfer of 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 _____________ ___, _____,
or at such other time on the same or such other day as shall be
agreed upon by the Company and [Lead Underwriter], or as may be
established in accordance with Section 11 herein. The hour and
date of such delivery and payment are herein called the "Closing
Date."
The Debentures shall be delivered to the Underwriters
in book-entry form through the facilities of The Depository Trust
Company in New York, New York. The certificates for the
Debentures shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Debentures, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Debentures available to the Underwriters for checking
not later than 2:30 P.M., New York time, on the last business day
preceding the Closing Date at such place as may be agreed upon
among 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 the Underwriters as
many copies of the Prospectus (and any amendments or supplements
thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed
with, or transmitted for filing to, the Commission pursuant to
and in compliance with Rule 424(b) and will advise [Lead
Underwriter] promptly of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which the Company
shall have received notice. The Company will use its best
efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof if issued.
(d) During such period of time after this Underwriting
Agreement has become effective as the Underwriters are required
by law to deliver a prospectus, if any event relating to or
affecting the Company, or of which the Company shall be advised
by the Underwriters in writing, shall occur which in the
Company's opinion should be set forth in a supplement or
amendment to the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser of the 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 and printing 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 $___________, (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 $____________, 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 the
Underwriters with the approval of Counsel for the Underwriters,
and (ii) if the Prospectus shall be supplemented after being
furnished to the Underwriters for use in offering the 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) if applicable, 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 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, for the redemption or purchase of
preferred stock for sinking fund purposes, for any increases in
long-term debt in respect of previously issued pollutional
control, solid waste disposal or industrial or development
revenue bonds, 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) 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.
(h) The Underwriters shall have received duly executed
counterparts of the Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing Date,
confirming, as of a date not more than five days prior to the
Closing Date, the statements contained in the letter delivered
pursuant to Section 7(f) hereof.
(j) Between the date hereof and the Closing Date, no
event shall have occurred with respect to or otherwise affecting
the Company, or Entergy Corporation and its various direct and
indirect subsidiaries taken as a whole as it affects the Company,
which in the reasonable opinion of the Underwriters materially
impairs the investment quality of the Debentures.
(k) Between the date hereof and the Closing Date
neither Moody's Investors Service, Inc. nor Standard & Poor's
Ratings Group shall have lowered its rating of the Company's
outstanding debt securities in any respect.
(l) All legal matters in connection with the issuance
and sale of the Debentures shall be satisfactory in form and
substance to Counsel for the Underwriters.
(m) 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 [Lead
Underwriter]. 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
were 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 were 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 [Lead Underwriter] if, prior to that time,
(i) trading in securities on the New York Stock Exchange shall
have been generally suspended, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by the New York Stock Exchange, the Commission or
other governmental authority, (iii) a general banking moratorium
shall have been declared by Federal or New York State
authorities, or (iv) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the reasonable judgment of [Lead
Underwriter], impracticable to market the Debentures. Any
termination hereof, pursuant to this Section 12, shall be without
liability of either party to the other party, except as otherwise
provided in paragraph (g) of Section 6 and in Section 10.
SECTION 13. Miscellaneous. THIS UNDERWRITING AGREEMENT
SHALL BE A NEW YORK CONTRACT AND ITS VALIDITY AND INTERPRETATION
SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Underwriting Agreement shall become effective when a fully
executed copy thereof is delivered to the Company and to [Lead
Underwriter]. This Underwriting Agreement may be executed in any
number of separate counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of
which, taken together, shall constitute but one and the same
agreement. This Underwriting Agreement shall inure to the
benefit of each of the Company, the Underwriters and, with
respect to the provisions of Section 9, each director, officer
and other persons referred to in Section 9, and their respective
successors. Should any part of this Underwriting Agreement for
any reason be declared invalid, such declaration shall not affect
the validity of any remaining portion, which remaining portion
shall remain in full force and effect as if this Underwriting
Agreement had been executed with the invalid portion thereof
eliminated. Nothing herein is intended or shall be construed to
give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of any
provision in this Underwriting Agreement. The term "successor"
as used in this Underwriting Agreement shall not include any
purchaser, as such purchaser, of any Debentures from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Lead Underwriter] at the address set forth at
the beginning of this Underwriting Agreement (to the attention of
its General Counsel), if to the Company, shall be mailed or
delivered to it at 308 East Pearl Street, Jackson, Mississippi
39201, 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,
MISSISSIPPI POWER & LIGHT COMPANY
By:
Name:
Title:
Accepted as of the date first above written:
[Underwriters]
By: [Lead Underwriter]
By:
Name:
Title:
<PAGE>
SCHEDULE I
Mississippi Power & Light Company
______% Debentures due ____________ ___, _____
Name Amount
[Underwriters] $_____________
$_____________
_____________
Total $_____________
<PAGE>
EXHIBIT A
[Letterhead of Wise Carter Child & Caraway]
______________ __, _____
[Underwriters]
c/o [Lead Underwriter]
[Address]
Ladies and Gentlemen:
We, together with Reid & Priest LLP, of New York, New
York, have acted as counsel for Mississippi Power & Light Company
(the "Company") in connection with the issuance and sale by it
pursuant to the Underwriting Agreement, effective _________ __,
______ (the "Underwriting Agreement"), between the Company and
you, of $___________ in aggregate principal amount of its %
Debentures due ___________ ___, _____ (the "Debentures"), issued
pursuant to an Indenture dated as of _____________ ___, ______
(the "Indenture") between the Company and __________________, 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 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 under the laws of the State of Mississippi,
is duly authorized by its Restated Articles of Incorporation, as
amended, to conduct the utility business which it is described as
conducting in the Prospectus and possesses adequate, valid and
subsisting franchises, certificates of public convenience and
necessity, licenses and permits in order to conduct such business
in the States of Mississippi and Arkansas.
(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
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 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 Restated Articles of
Incorporation or By-laws, each as amended, (b) will not violate
or conflict with any provision of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any of the assets of the
Company pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking known to us (having made
due inquiry with respect thereto) to which the Company is a party
or which purports to be binding upon the Company or upon any of
its respective assets, and (c) will not violate any provision of
any Mississippi law or regulation applicable to the Company
(other than the Mississippi securities or blue-sky laws, upon
which we are not passing) 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]
__________ __, _____
[Underwriters]
c/o [Lead Underwriter]
[Address]
Ladies and Gentlemen:
We, together with Wise Carter Child & Caraway,
Professional Association, of Jackson, Mississippi, have acted as
counsel for Mississippi Power & Light Company (the "Company") in
connection with the issuance and sale by it pursuant to the
Underwriting Agreement, effective ____________ __, ______ (the
"Underwriting Agreement"), between the Company and you, of
$_________________ in aggregate principal amount of its %
Debentures due _____________ ___, ______ (the "Debentures"),
issued pursuant to an Indenture dated as of _____________ ____,
______ (the "Indenture") between the Company and _____________
_____, 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 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 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 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
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]
___________ __, _____
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 Mississippi Power
& Light Company (the "Company") in connection with the issuance
and sale by it, pursuant to the Underwriting Agreement, effective
_________ __, _____ (the "Underwriting Agreement") between the
Company and the underwriter named therein of $_______________ in
aggregate principal amount of its % Debentures due ___________
___, _____ (the "Debentures"), issued pursuant to a Trust
Indenture dated as of ____________________, _____ (the
"Indenture") between the Company and ____________ _______, as
Trustee (the "Trustee"). This opinion is rendered to you at the
request of the Company.
In order to render this opinion, we have assumed that
the Company does not own any real or personal property or other
facilities in the State of Arkansas, except for an undivided
twenty-five percent (25%) ownership interest in the independent
Steam Electric Station at Newark, Arkansas, and that the Company
does not maintain any service territory or serve any retail
customers in the State of Arkansas.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the
State of Arkansas and holds adequate and subsisting franchises,
certificates of public convenience and necessity, licenses and
permits to permit it to conduct its business as presently
conducted in Arkansas.
(2) 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]
_____________ __, ______
[Underwriters]
c/o [Lead Underwriter]
[Address]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of $_____________ in aggregate principal amount of
the % Debentures due ________________ ___, _____ (the
"Debentures"), issued by Mississippi Power & Light Company (the
"Company") under an Indenture dated as of ____________ ___, _____
(the "Indenture") between the Company and _____________________,
as Trustee (the "Trustee"), pursuant to the agreement between you
and the Company effective _______________ __, _____ (the
"Underwriting Agreement").
We are members of the Bar of the State of New York and,
for purposes of this opinion, do not hold ourselves out as
experts on the laws of any jurisdiction other than the State of
New York and the United States of America. We have, with your
consent, relied upon opinions of even date herewith addressed to
you [(or upon which it is stated that you may rely)] of [Friday,
Eldredge & Clark and] Wise Carter Child & Caraway, Professional
Association, as to all matters of [Arkansas and] Mississippi
law[, respectively,] related to this opinion. We have reviewed
said opinions and believe that they are satisfactory. We have
also reviewed the opinion of Reid & Priest LLP required by
Section 7(d) of the Underwriting Agreement, and we believe said
opinion to be satisfactory.
In our capacity as your counsel, we have examined such
documents and have satisfied ourselves as to such other matters
as we have deemed necessary in order to enable us to render this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company and
statements in the Registration Statement hereinafter mentioned.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of the documents
submitted to us as certified or photostatic copies, and the
correctness of all statements of fact contained in all such
original or copied documents. We have not examined the
Debentures except a specimen thereof, and we have relied upon a
certificate of the Trustee as to the due authentication and
delivery 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 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 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
Securities and Exchange Commission
November 17, 1995
Page 4
[LETTERHEAD OF WISE CARTER CHILD & CARAWAY]
November 17, 1995
(601) 968-5563
EXHIBIT F-1
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to the application-declaration on Form U-1
(File No. 70-8719) ("Application-Declaration"), filed by
Mississippi Power & Light Company ("Company") with the Securities
and Exchange Commission ("Commission") under the Public Utility
Holding Company Act of 1935, as amended, ("Act") contemplating,
among other things, (a) the issuance and sale by the Company in a
combined aggregate principal amount not to exceed $535,000,000 of
(i) one or more series of its general and refunding mortgage
bonds ("Bonds") under its Mortgage and Deed of Trust, dated
February 1, 1988 ("Mortgage"), as amended and supplemented,
including one or more supplemental indentures thereto under which
the Bonds are to be issued, and/or (ii) one or more series of its
debentures ("Debentures") under either a debenture indenture or a
subordinated debenture indenture; (b) the issuance and sale by
the Company (i) through one or more special purpose subsidiaries
of the Company, of one or more series of preferred securities of
such subsidiary having a stated liquidation preference ("Entity
Interests"), where the issuance shall involve the issuance of one
or more series of the Company's junior subordinated debentures
("Entity Subordinated Debentures") under an entity subordinated
debenture indenture to such special purpose subsidiaries, each
series of such Entity Subordinated Debentures to be in an amount
not to exceed the amount of the respective series of Entity
Interests plus an equity contribution by the Company (the Entity
Subordinated Debentures issued to evidence such Entity Interests
and such equity contribution not to be included in the aggregate
amount of $535,000,000 included in (a) above), and where the
payment of distributions and amounts due upon liquidation of such
entity or redemption of the Entity Interests may be guaranteed by
the Company and/or (ii) of one or more new series of the
Company's preferred stock, cumulative, $100 par value ("Preferred
Stock") (such Entity Interests and Preferred Stock to be issued
in a combined aggregate stated amount not to exceed $75,000,000);
(c) the entering into arrangements for the issuance and sale of
tax-exempt revenue bonds ("Tax-Exempt Bonds") in an aggregate
principal amount not to exceed $35,000,000, including the
possible issuance and pledge of one or more series of the
Company's general and refunding mortgage bonds ("Collateral
Bonds") in an aggregate principal amount not to exceed
$38,500,000 as security for the Tax-Exempt Bonds, such principal
amount of Collateral Bonds not to be included in the amount of
Bonds set forth in subsection (a)(i) above; and/or (d) the
proposed acquisition by the Company of all or a portion of
certain series of outstanding tax-exempt bonds issued for the
Company's benefit ("Outstanding Securities"), all as more fully
described in said Application-Declaration, we advise as follows:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Mississippi.
2. All action necessary to make valid the participation by the
Company in the said proposed transactions will have been taken
when:
(a) the Application-Declaration shall have
been granted and permitted to become effective in
accordance with the applicable provisions of the
Act;
(b) appropriate final action shall have been
taken by the Board of Directors and/or an
authorized officer of the Company with respect to
the proposed transactions;
(c) the supplemental indentures, debenture
indenture, subordinated debenture indenture,
entity subordinated debenture indenture,
facilities agreement and each of the other
agreements referred to in the Application-
Declaration related to the proposed transactions
described therein shall have been duly executed
and delivered by each of the proposed parties
thereto; and
(d) the Bonds, Debentures, Preferred Stock,
Entity Subordinated Debentures and/or Tax-Exempt
Bonds (including, if applicable, Collateral Bonds)
shall have been appropriately issued and delivered
for the consideration contemplated.
3. When the foregoing steps shall have been taken and in the
event the proposed transactions are otherwise consummated (i) in
accordance with the Application-Declaration and the related order
or orders of the Commission, (ii) within the limits specified in
the Company's Mortgage, as supplemented and as proposed to be
further supplemented, and the Company's Restated Articles of
Incorporation, as amended and as proposed to be further amended,
and (iii) in accordance with the appropriate resolutions of the
Board of Directors and certificates of the authorized officer(s)
of the Company:
(a) all state laws which relate or are
applicable to the participation by the Company in
the proposed transactions (other than the so-
called "blue-sky" laws, or similar laws, upon
which we do not pass herein) will have been
complied with;
(b) the Bonds, Debentures, Entity
Subordinated Debentures and/or Collateral Bonds
will be valid and binding obligations of the
Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting enforcement of
mortgagees' and other creditors' rights;
(c) the Preferred Stock will be validly
issued, fully paid and non-assessable, and the
holders thereof will be entitled to the rights and
privileges appertaining thereto set forth in the
Company's Restated Articles of Incorporation, as
amended and as proposed to be further amended;
(d) the Company will have legally acquired
any Outstanding Securities being acquired; and
(e) the consummation of the proposed
transactions by the Company will not violate the
legal rights of the holders of any securities
issued by the Company.
We are members of the Mississippi 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 New York, upon an opinion of even
date herewith addressed to you by Reid & Priest LLP, counsel to
the Company, which is to be filed as an exhibit to the
Application-Declaration.
We hereby consent to the use of this opinion as an exhibit
to the Application-Declaration.
Very truly yours,
WISE CARTER CHILD & CARAWAY
Professional Association
BY: /s/ Betty Toon Collins
Betty Toon Collins
-4-
Exhibit F-2
New York, New York
November 17, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Referring to the Application-Declaration on Form
U-1, as amended (File No. 70-8719) (hereinafter referred to
as the "Application-Declaration"), filed with the
Securities and Exchange Commission ("Commission") under the
Public Utility Holding Company Act of 1935, as amended (the
"Act"), by Mississippi Power & Light Company ("Company")
contemplating, among other things, (A) the issuance and
sale by the Company of not to exceed $535,000,000 in
aggregate principal amount of (l) its general and refunding
mortgage bonds ("Bonds") under its Mortgage and Deed of
Trust, dated as of February 1, 1988 (the "Mortgage"), as
amended and supplemented, including one or more
Supplemental Indentures thereto under which the Bonds are
to be issued, and/or (2) its Debentures ("Debentures")
under a Debenture Indenture or a Subordinated Debenture
Indenture, and/or (B) the issuance and sale by the Company,
(1) through one or more special purpose subsidiaries of the
Company, of one or more series of preferred securities of
such subsidiary having a stated liquidation preference
("Entity Interests"), where the issuance shall involve the
issuance of one or more series of the Company's junior
subordinated debentures ("Entity Subordinated Debentures")
under an Entity Subordinated Debenture Indenture to such
special purpose subsidiaries, each series of such Entity
Subordinated Debentures to be in an amount not to exceed
the amount of the respective series of Entity Interests
plus an equity contribution by the Company (the Entity
Subordinated Debentures issued to evidence such Entity
Interests and such equity contribution not to be included
in the above-referenced aggregate amount of $535,000,000),
and where the payment of distributions and amounts due upon
liquidation of such entity or redemption of the Entity
Interests may be guaranteed by the Company, and/or (2) of
one or more new series of the Company's Preferred Stock
("Preferred Stock") (such Entity Interests and Preferred
Stock to be issued in a combined aggregate stated amount
not to exceed $75,000,000), and/or (C) the entering into
arrangements for the issuance and sale of tax-exempt
revenue bonds ("Tax-Exempt Bonds") in an aggregate
principal amount not to exceed $35,000,000, including the
possible issuance and pledge of one or more new series of
the Company's general and refunding mortgage bonds
("Collateral Bonds") in an aggregate principal amount not
to exceed $38,500,000 as security for the Tax-Exempt Bonds
(where such amount is not to be included in the amount of
Bonds in (A)(1) above), and/or (D) the proposed acquisition
by the Company of all or a portion of certain series of
outstanding Tax-Exempt Bonds issued for the Company's
benefit ("Outstanding Securities"), all as more fully
described in said Application-Declaration, we advise as
follows:
1. The Company is a corporation validly organized and
existing under the laws of the State of Mississippi.
2.
2. All action necessary to make valid the participation
by the Company in the proposed transactions will have been
taken when:
(a) the Application-Declaration shall have been granted
and permitted to become effective in accordance with the
applicable provisions of the Act;
(b) appropriate final action shall have been taken by the
Board of Directors and/or an Authorized Officer of the
Company with respect to the proposed transactions;
(c) the Supplemental Indentures, Debenture Indenture,
Subordinated Debenture Indenture, Entity Subordinated
Debenture Indenture, the Facilities Agreement and each of
the other agreements referred to in the Application-
Declaration related to the proposed transactions described
therein shall have been duly executed and delivered by each
of the proposed parties thereto; and
(d) the Bonds, Debentures, Preferred Stock, the Entity
Subordinated Debentures and/or Tax-Exempt Bonds (including,
if applicable, Collateral Bonds) shall have been
appropriately issued and delivered for the consideration
contemplated.
3. When the foregoing steps shall have been taken and in
the event the proposed transactions are otherwise
consummated (i) in accordance with the Application-
Declaration and the related order or orders of the
Commission, (ii) within the limits specified in the
Mortgage, as supplemented and as proposed to be further
supplemented, and the Company's Restated Articles of
Incorporation, as amended and as proposed to be further
amended and (iii) in accordance with appropriate
resolutions of the Board of Directors and certificates of
Authorized Officer(s) of the Company:
(a) all state laws which relate or are applicable to the
participation by the Company in the proposed transactions
(other than so-called "blue-sky" laws or similar laws, upon
which we do not pass herein) will have been complied with;
(b) the Bonds, the Debentures, the Entity Subordinated
Debentures and/or the Collateral Bonds will be valid and
binding obligations of the Company in accordance with their
terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights;
(c) the Preferred Stock will be validly issued, fully paid
and non-assessable, and the holders thereof will be
entitled to the rights and privileges appertaining thereto
set forth in the Company's Restated Articles of
Incorporation, as amended and as they are proposed to be
further amended;
(d) the Company will have legally acquired any Outstanding
Securities being acquired; and
(e) the consummation of the proposed transactions by the
Company will not violate 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 Mississippi,
upon an opinion of even date herewith addressed to you by
Wise Carter Child & Caraway, Professional Association,
counsel to the Company, which is to be filed as an exhibit
to the Application-Declaration.
We hereby consent to the use of this opinion as
an exhibit to the Application-Declaration.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 010
<NAME> MISSISSIPPI POWER AND LIGHT COMPANY
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1995 SEP-30-1995
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 987,817 987,817
<OTHER-PROPERTY-AND-INVEST> 11,148 11,148
<TOTAL-CURRENT-ASSETS> 321,240 320,327
<TOTAL-DEFERRED-CHARGES> 314,050 337,189
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 1,634,255 1,656,481
<COMMON> 199,326 199,326
<CAPITAL-SURPLUS-PAID-IN> (218) (1,577)
<RETAINED-EARNINGS> 250,023 248,291
<TOTAL-COMMON-STOCKHOLDERS-EQ> 449,131 446,040
0 0
74,651 75,000
<LONG-TERM-DEBT-NET> 504,358 529,326
<SHORT-TERM-NOTES> 0 0
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 66,015 66,015
0 0
<CAPITAL-LEASE-OBLIGATIONS> 456 456
<LEASES-CURRENT> 0 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 539,644 539,644
<TOT-CAPITALIZATION-AND-LIAB> 1,634,255 1,656,481
<GROSS-OPERATING-REVENUE> 888,889 888,889
<INCOME-TAX-EXPENSE> 23,393 23,441
<OTHER-OPERATING-EXPENSES> 749,106 749,106
<TOTAL-OPERATING-EXPENSES> 772,499 772,547
<OPERATING-INCOME-LOSS> 116,390 116,342
<OTHER-INCOME-NET> 4,933 4,933
<INCOME-BEFORE-INTEREST-EXPEN> 121,323 121,275
<TOTAL-INTEREST-EXPENSE> 51,722 51,597
<NET-INCOME> 69,601 69,678
7,965 9,774
<EARNINGS-AVAILABLE-FOR-COMM> 61,636 59,904
<COMMON-STOCK-DIVIDENDS> 53,000 53,000
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 010
<NAME> MISSISSIPPI POWER AND LIGHT COMPANY
<S> <C> <C>
<PERIOD-TYPE> 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-END> SEP-30-1995 SEP-30-1995
<BOOK-VALUE> PER-BOOK PRO-FORMA
<TOTAL-NET-UTILITY-PLANT> 987,817 987,817
<OTHER-PROPERTY-AND-INVEST> 11,148 11,148
<TOTAL-CURRENT-ASSETS> 321,240 321,074
<TOTAL-DEFERRED-CHARGES> 314,050 340,182
<OTHER-ASSETS> 0 0
<TOTAL-ASSETS> 1,634,255 1,660,221
<COMMON> 199,326 199,326
<CAPITAL-SURPLUS-PAID-IN> (218) (276)
<RETAINED-EARNINGS> 250,023 250,730
<TOTAL-COMMON-STOCKHOLDERS-EQ> 449,131 449,780
0 0
74,651 75,000
<LONG-TERM-DEBT-NET> 504,358 529,326
<SHORT-TERM-NOTES> 0 0
<LONG-TERM-NOTES-PAYABLE> 0 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0 0
<LONG-TERM-DEBT-CURRENT-PORT> 66,015 66,015
0 0
<CAPITAL-LEASE-OBLIGATIONS> 456 456
<LEASES-CURRENT> 0 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 539,644 539,644
<TOT-CAPITALIZATION-AND-LIAB> 1,634,255 1,660,221
<GROSS-OPERATING-REVENUE> 888,889 888,889
<INCOME-TAX-EXPENSE> 23,393 21,002
<OTHER-OPERATING-EXPENSES> 749,056 791,110
<TOTAL-OPERATING-EXPENSES> 772,499 770,108
<OPERATING-INCOME-LOSS> 116,390 118,781
<OTHER-INCOME-NET> 4,933 4,933
<INCOME-BEFORE-INTEREST-EXPEN> 121,323 123,714
<TOTAL-INTEREST-EXPENSE> 51,722 57,972
<NET-INCOME> 69,601 65,742
7,965 3,399
<EARNINGS-AVAILABLE-FOR-COMM> 61,636 62,343
<COMMON-STOCK-DIVIDENDS> 53,000 53,000
<TOTAL-INTEREST-ON-BONDS> 0 0
<CASH-FLOW-OPERATIONS> 0 0
<EPS-PRIMARY> 0 0
<EPS-DILUTED> 0 0
</TABLE>
<TABLE>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Utility Plant:
Electric $1,543,888 $1,543,888
Construction work in progress 51,336 51,336
----------------- ----------------- -----------------
Total 1,595,224 1,595,224
Less - accumulated depreciation
and amortization 607,407 607,407
----------------- ----------------- -----------------
Utility plant - net 987,817 987,817
----------------- ----------------- -----------------
Other Property and Investments:
Investment in subsidiary company
- at equity 5,531 5,531
Other 5,617 5,617
----------------- ----------------- -----------------
Total 11,148 11,148
----------------- ----------------- -----------------
Current Assets:
Cash and cash equivalents:
Cash 5,770 ($913) 4,857
Temporary cash investments - at cost,
which approximates market -
Associated companies 4,797 4,797
Other 26,917 26,917
----------------- ----------------- -----------------
Total cash and cash equivalents 37,484 (913) 36,571
Accounts receivable:
Customer (less allowance for
doubtful accounts of $2.1 million) 61,911 61,911
Associated companies 4,566 4,566
Other 1,968 1,968
Accrued unbilled revenues 52,105 52,105
Fuel inventory - at average cost 8,107 8,107
Materials and supplies - at average cost 21,237 21,237
Rate deferrals 126,378 126,378
Prepayments and other 7,484 7,484
----------------- ----------------- -----------------
Total 321,240 (913) 320,327
----------------- ----------------- -----------------
Deferred Debits and Other Assets:
Regulatory Assets:
Rate deferrals 287,108 287,108
Unamortized loss on reacquired debt 9,557 17,256 26,813
Other regulatory assets 9,385 9,385
Other 8,000 5,883 13,883
----------------- ----------------- -----------------
Total 314,050 23,139 337,189
----------------- ----------------- -----------------
TOTAL $1,634,255 $22,226 $1,656,481
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Capitalization:
Common stock, no par value, authorized
15,000,000 shares; issued and
outstanding 8,666,357 shares $199,326 $199,326
Capital stock expense and other (218) ($1,359) (1,577)
Retained earnings 250,023 (1,732) 248,291
----------------- ----------------- -----------------
Total common shareholder's equity 449,131 (3,091) 446,040
Preferred stock 74,651 349 75,000
Long-term debt 504,358 24,968 529,326
----------------- ----------------- -----------------
Total 1,028,140 22,226 1,050,366
----------------- ----------------- -----------------
Other Noncurrent Liabilities:
Obligations under capital leases 456 456
Other 8,345 8,345
----------------- ----------------- -----------------
Total 8,801 8,801
----------------- ----------------- -----------------
Current Liabilities:
Currently maturing long-term debt 66,015 66,015
Accounts payable:
Associated companies 27,340 27,340
Other 29,720 29,720
Customer deposits 24,062 24,062
Taxes accrued 45,800 45,800
Accumulated deferred income taxes 52,426 52,426
Interest accrued 16,688 16,688
Dividends declared 1,468 1,468
Other 8,357 8,357
----------------- ----------------- -----------------
Total 271,876 271,876
----------------- ----------------- -----------------
Deferred Credits:
Accumulated deferred income taxes 276,791 276,791
Accumulated deferred investment
tax credits 28,366 28,366
SFAS 109 regulatory liability - net 9,410 9,410
Other 10,871 10,871
----------------- ----------------- -----------------
Total 325,438 325,438
----------------- ----------------- -----------------
TOTAL $1,634,255 $22,226 $1,656,481
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Operating Revenues: $888,889 $888,889
----------------- ----------------- -----------------
Operating Expenses:
Operation and maintenance:
Fuel and fuel-related expenses 172,948 172,948
Purchased power 236,690 236,690
Other operation and maintenance 142,381 142,381
Depreciation and amortization 37,671 37,671
Taxes other than income taxes 46,174 46,174
Income taxes 23,393 $48 23,441
Amortization of rate deferrals 113,242 113,242
----------------- ----------------- -----------------
Total 772,499 48 772,547
----------------- ----------------- -----------------
Operating Income 116,390 (48) 116,342
----------------- ----------------- -----------------
Other Income (Deductions):
Allowance for equity funds used
during construction 1,037 1,037
Miscellaneous - net 238 238
Income taxes 3,658 3,658
----------------- ----------------- -----------------
Total 4,933 4,933
----------------- ----------------- -----------------
Interest Charges:
Interest on long-term debt 47,235 (125) 47,110
Other interest - net 5,310 5,310
Allowance for borrowed funds used
during construction (823) (823)
----------------- ----------------- -----------------
Total 51,722 (125) 51,597
----------------- ----------------- -----------------
Net Income 69,601 77 69,678
Preferred Stock Dividend Requirements
and Other 7,965 1,809 9,774
----------------- ----------------- -----------------
Earnings Applicable to Common Stock $61,636 ($1,732) $59,904
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Retained Earnings - October 1, 1994 $241,330 $241,330
Add
Net Income 69,601 $77 69,678
----------------- ----------------- -----------------
Total 310,931 77 311,008
----------------- ----------------- -----------------
Deduct:
Dividends declared on common stock 53,000 53,000
Dividends declared on preferred stock 6,364 620 6,984
Preferred stock expense 1,544 1,189 2,733
----------------- ----------------- -----------------
Total 60,908 1,809 62,717
----------------- ----------------- -----------------
Retained Earnings - September 30, 1995 $250,023 ($1,732) $248,291
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
ADJUSTMENTS TO REFLECT TRANSACTIONS PROPOSED IN PRESENT FILING
EXCLUDING ISSUANCE OF MIPS
AT SEPTEMBER 30, 1995
Entry No. 1
<S> <C> <C>
Cash 524,142,000
Unamortized Debt Expense 5,858,000
Long-Term Debt - Bonds / Debentures 530,000,000
To record the sale of $530 million principal amount of Bonds / Debentures
at various maturity dates at various interest rates, as well as the initial
expenses incurred in connection with the issuance.
Entry No. 2
Interest on Long-Term Debt 42,400,000
Cash 42,400,000
To record interest, and subsequent payment, on Bonds / Debentures
(assuming 8% interst rate).
Entry No. 3
Long Term Debt - First Mortgage Bonds 35,000,000
Long Term Debt - G & R Bonds 477,000,000
Unamortized Premium 7,000
Unamortized Loss on Reacquired Debt 16,656,000
Unamortized Debt Expense 855,000
Unamortized Discount 2,895,000
Cash 524,913,000
To record early redemption of First Mortgage Bonds and G & R Bonds, at
various maturity dates and at various interest rates.
Entry No. 4
Cash 42,294,000
Interest Expense 42,294,000
To record the reduction in interest expense on the retirement of First Mortgage
Bonds and G & R Bonds.
Entry No.5
Cash 34,120,000
Unamortized Debt Expense 880,000
Long-Term Debt - Tax-Exempt Bonds 35,000,000
To record the sale of $35 million principal amount of Tax-Exempt Bonds
and related issuance expenses.
Entry No. 6
Interest on Long-Term Debt 2,450,000
Cash 2,450,000
To record annual interest, and subsequent payment, on Tax-Exempt Bonds
(assuming 7% interest rate).
Entry No. 7
Long-Term Debt - Tax-Exempt Bonds 30,920,000
Unamortized Loss on Reacquired Debt 600,000
Cash 31,520,000
To record early redemption of Tax-Exempt Bonds at various maturity
dates at various interest rates.
Entry No. 8
Cash 2,681,000
Interest on Long-Term Debt 2,681,000
To record the reduction in interest expense on the retirement of
Tax-Exempt Bonds.
Entry No. 9
Cash 73,699,000
Capital Stock Expense 1,301,000
Preferred Stock 75,000,000
To record issuance of $75 million of Preferred Stock and related issuance costs.
Entry No. 10
Retained Earnings 6,375,000
Cash 6,375,000
To record increase in dividend payments related to issuance of Preferred Stock.
Entry No. 11
Preferred Stock 74,651,000
Additional Paid-In Capital 58,000
Preferred Stock Dividend Requirements and Other 1,189,000
Cash 75,898,000
To record early redemption of Preferred Stock , various issues.
Entry No. 12
Cash 5,755,000
Retained Earnings 5,755,000
To record decrease in dividend payments related to redemption of Preferred Stock.
Entry No. 13
Income Taxes 48,000
Cash 48,000
To record the increase in Income Taxes related to the net decrease ($125,000)
in interest expense from refinancing of First Mortgage Bonds, G & R Bonds and
Tax-Exempt Bonds.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
ASSETS Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Utility Plant:
Electric $1,543,888 $1,543,888
Construction work in progress 51,336 51,336
----------------- ----------------- -----------------
Total 1,595,224 1,595,224
Less - accumulated depreciation
and amortization 607,407 607,407
----------------- ----------------- -----------------
Utility plant - net 987,817 987,817
----------------- ----------------- -----------------
Other Property and Investments:
Investment in subsidiary company
- at equity 5,531 5,531
Other 5,617 5,617
----------------- ----------------- -----------------
Total 11,148 11,148
----------------- ----------------- -----------------
Current Assets:
Cash and cash equivalents:
Cash 5,770 $0 5,770
Temporary cash investments - at cost,
which approximates market -
Associated companies 4,797 4,797
Other 26,917 26,917
----------------- ----------------- -----------------
Total cash and cash equivalents 37,484 0 37,484
Accounts receivable:
Customer (less allowance for
doubtful accounts of $2.1 million) 61,911 61,911
Associated companies 4,566 4,566
Other 1,968 1,968
Accrued unbilled revenues 52,105 52,105
Fuel inventory - at average cost 8,107 8,107
Materials and supplies - at average cost 21,237 21,237
Rate deferrals 126,378 126,378
Prepayments and other 7,484 7,484
----------------- ----------------- -----------------
Total 321,240 0 321,240
----------------- ----------------- -----------------
Deferred Debits and Other Assets:
Regulatory Assets:
Rate deferrals 287,108 287,108
Unamortized loss on reacquired debt 9,557 0 9,557
Other regulatory assets 9,385 9,385
Other 8,000 0 8,000
----------------- ----------------- -----------------
Total 314,050 0 314,050
----------------- ----------------- -----------------
TOTAL $1,634,255 $0 $1,634,255
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
CAPITALIZATION AND LIABILITIES Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <S> <C> <C>
Capitalization:
Common stock, no par value, authorized
15,000,000 shares; issued and
outstanding 8,666,357 shares $199,326 $199,326
Capital stock expense and other (218) $0 (218)
Retained earnings 250,023 0 250,023
----------------- ----------------- -----------------
Total common shareholder's equity 449,131 0 449,131
Preferred stock 74,651 0 74,651
Minority interest in preferred securities of subsidiary 0 0
Long-term debt 504,358 0 504,358
----------------- ----------------- -----------------
Total 1,028,140 0 1,028,140
----------------- ----------------- -----------------
Other Noncurrent Liabilities:
Obligations under capital leases 456 456
Other 8,345 8,345
----------------- ----------------- -----------------
Total 8,801 8,801
----------------- ----------------- -----------------
Current Liabilities:
Currently maturing long-term debt 66,015 66,015
Accounts payable:
Associated companies 27,340 27,340
Other 29,720 29,720
Customer deposits 24,062 24,062
Taxes accrued 45,800 45,800
Accumulated deferred income taxes 52,426 52,426
Interest accrued 16,688 16,688
Dividends declared 1,468 1,468
Other 8,357 8,357
----------------- ----------------- -----------------
Total 271,876 271,876
----------------- ----------------- -----------------
Deferred Credits:
Accumulated deferred income taxes 276,791 276,791
Accumulated deferred investment
tax credits 28,366 28,366
SFAS 109 regulatory liability - net 9,410 9,410
Other 10,871 10,871
----------------- ----------------- -----------------
Total 325,438 325,438
----------------- ----------------- -----------------
TOTAL $1,634,255 $0 $1,634,255
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA STATEMENT OF INCOME
TWELVE MONTHS ENDED SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Operating Revenues: $888,889 $888,889
----------------- ----------------- -----------------
Operating Expenses:
Operation and maintenance:
Fuel and fuel-related expenses 172,948 172,948
Purchased power 236,690 236,690
Other operation and maintenance 142,381 142,381
Depreciation and amortization 37,671 37,671
Taxes other than income taxes 46,174 46,174
Income taxes 23,393 $0 23,393
Amortization of rate deferrals 113,242 113,242
----------------- ----------------- -----------------
Total 772,499 0 772,499
----------------- ----------------- -----------------
Operating Income 116,390 0 116,390
----------------- ----------------- -----------------
Other Income (Deductions):
Allowance for equity funds used
during construction 1,037 1,037
Miscellaneous - net 238 238
Income taxes 3,658 3,658
----------------- ----------------- -----------------
Total 4,933 4,933
----------------- ----------------- -----------------
Interest Charges:
Interest on long-term debt 47,235 0 47,235
Other interest - net 5,310 5,310
Allowance for borrowed funds used
during construction (823) (823)
Dividends on preferred securities of subsidiary 0 0
----------------- ----------------- -----------------
Total 51,722 0 51,722
----------------- ----------------- -----------------
Net Income 69,601 0 69,601
Preferred Stock Dividend Requirements
and Other 7,965 0 7,965
----------------- ----------------- -----------------
Earnings Applicable to Common Stock $61,636 $0 $61,636
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
PRO FORMA STATEMENT OF RETAINED EARNINGS
TWELVE MONTHS ENDED SEPTEMBER 30, 1995
(Unaudited)
Adjustments to Reflect
Transactions Proposed
-------------------------------------------------------
Before In Present After
Transaction Filing Transaction
----------------- ----------------- -----------------
(In Thousands)
<S> <C> <C> <C>
Retained Earnings - October 1, 1994 $241,330 $241,330
Add
Net Income 69,601 $0 69,601
----------------- ----------------- -----------------
Total 310,931 0 310,931
----------------- ----------------- -----------------
Deduct:
Dividends declared on common stock 53,000 53,000
Dividends declared on preferred stock 6,364 0 6,364
Preferred stock expense 1,544 0 1,544
----------------- ----------------- -----------------
Total 60,908 0 60,908
----------------- ----------------- -----------------
Retained Earnings - September 30, 1995 $250,023 $0 $250,023
================= ================= =================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER & LIGHT COMPANY
ADJUSTMENTS TO REFLECT TRANSACTIONS PROPOSED IN PRESENT FILING
INCLUDING ISSUANCE OF MIPS
AT SEPTEMBER 30, 1995
Entry No. 1
<S> <C> <C>
Cash 524,142,000
Unamortized Debt Expense 5,858,000
Long-Term Debt - Bonds / Debentures 530,000,000
To record the sale of $530 million principal amount of Bonds / Debentures
at various maturity dates at various interest rates, as well as the initial
expenses incurred in connection with the issuance.
Entry No. 2
Interest on Long-Term Debt 42,400,000
Cash 42,400,000
To record annual interest, and subsequent payment, on Bonds / Debentures
(assuming 8% interest rate).
Entry No. 3
Long Term Debt - First Mortgage Bonds 35,000,000
Long Term Debt - G & R Bonds 477,000,000
Unamortized Premium 7,000
Unamortized Loss on Reacquired Debt 16,656,000
Unamortized Debt Expense 855,000
Unamortized Discount 2,895,000
Cash 524,913,000
To record early redemption of First Mortgage Bonds and G & R Bonds, at
various maturity dates and at various interest rates.
Entry No. 4
Cash 42,294,000
Interest Expense 42,294,000
To record the reduction in interest expense on the retirement of First Mortgage
Bonds and G & R Bonds.
Entry No.5
Cash 34,120,000
Unamortized Debt Expense 880,000
Long-Term Debt - Tax-Exempt Bonds 35,000,000
To record the sale of $35 million principal amount of Tax-Exempt Bonds
and related issuance expenses.
Entry No. 6
Interest on Long-Term Debt 2,450,000
Cash 2,450,000
To record annual interest, and subsequent payment, on Tax-Exempt Bonds
(assuming 7% interest rate).
Entry No. 7
Long-Term Debt - Tax-Exempt Bonds 30,920,000
Unamortized Loss on Reacquired Debt 600,000
Cash 31,520,000
To record early redemption of Tax-Exempt Bonds at various maturity
dates at various interest rates.
Entry No. 8
Cash 2,681,000
Interest on Long-Term Debt 2,681,000
To record the reduction in interest expense on the retirement of
Tax-Exempt Bonds.
Entry No. 9
Cash 72,007,000
Unamortized Expense on Issuance of MIPS 2,993,000
Minority Interest in Preferred Securities of Subsidiary 75,000,000
To record issuance of $75 million of MIPS and related issuance costs by the
Issuing Entity.
Entry No.10
Dividends on Preferred Securities of Subsidiary 6,375,000
Cash 6,375,000
To record annual dividends paid on MIPS by the Issuing Entity (averaging
approximately 8.5%).
Entry No. 11
Preferred Stock 74,651,000
Additional Paid-In Capital 58,000
Preferred Stock Dividend Requirements and Other 1,189,000
Cash 75,898,000
To record early redemption of Preferred Stock , various issues.
Entry No. 12
Cash 5,755,000
Retained Earnings 5,755,000
To record decrease in dividend payments related to redemption of Preferred Stock.
Entry No.13
Cash 2,391,000
Income Taxes 2,391,000
To record the decrease in Income Taxes related to the net increase ($6,250,000)
in interest expense from refinancing of First Mortgage Bonds,G & R Bonds,
Tax-Exempt Bonds and issuance of MIPS.
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