As filed with the Securities and Exchange Commission on January 9, 1996
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
ARKANSAS POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
State of Arkansas 71-0005900
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
425 West Capitol Avenue
Little Rock, Arkansas 72201
501-377-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
R. DRAKE KEITH WILLIAM J. REGAN, JR.
President Vice President and Treasurer
Arkansas Power & Light Company Arkansas Power & Light Company
425 West Capitol Avenue 639 Loyola Avenue
Little Rock, Arkansas 72201 New Orleans, Louisiana 70113
501-377-4000 504-576-4308
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, Louisiana 70113 New York, New York 10019
504-576-2095 212-603-2000
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
Approximate date of commencement of proposed sale to the
public: From time to time after this registration statement
becomes effective when warranted by market conditions and
other factors.
<PAGE>
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities
Act registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number
of the earlier effective registration statement for the same
offering. [ ]__________
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each Amount to maximum maximum Amount of
class of be offering aggregate registrat
securities to registere price offering ion fee
be registered d per unit price (1)
(1)
Debt Securities $300,000, 100% $300,000,0 $103,448.
000 00 28
(1) Estimated solely for the purpose of calculating the
registration fee, pursuant to Rule 457(o).
The registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
Subject to Completion,
Dated January 9, 1996
P R O S P E C T U S
$300,000,000
ARKANSAS POWER & LIGHT COMPANY
Debt Securities
_____________________________
Arkansas Power & Light Company ("AP&L" or the
"Company") intends to offer from time to time up to
$300,000,000 aggregate principal amount of debt securities
(the "Debt Securities") in one or more series, at prices and
upon terms to be determined at the time or times of sale.
For each issue of the Debt Securities (the "Offered
Securities") there will be a Prospectus Supplement
("Prospectus Supplement") accompanying this Prospectus that
will set forth the terms and provisions thereof, including
without limitation and to the extent applicable, the
specific designation, aggregate principal amount,
denomination, maturity, premium, if any, rate of interest
(which may be fixed or variable) or method of calculation
thereof, time of payment of interest, any terms for
redemption, any sinking fund provisions, the initial public
offering price, the names of any underwriters or agents, the
principal amounts, if any, to be purchased by the
underwriters, the compensation of such underwriters or
agents, the amount and proposed use of proceeds to the
Company from the Offered Securities, and any other special
terms of or pertinent information with respect to the
Offered Securities and the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company may sell the Debt Securities through one or
more underwriters, dealers or agents, or directly to one or
more purchasers. The Prospectus Supplement will set forth
the names of the underwriters, dealers or agents, if any,
any applicable commissions or discounts and the net proceeds
to the Company from any such sale of the Offered Securities.
See "Plan of Distribution."
_______________
The date of this Prospectus is ___________________, 1996.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN
ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER
THE SECURITIES LAWS OF ANY SUCH STATE.
_______________
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED HEREBY
OR ANY OTHER SECURITIES OF THE COMPANY AT LEVELS ABOVE THOSE
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith
files reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports
include information, as of particular dates, concerning the
Company's directors and officers, their remuneration, the
principal holders of the Company's securities and any
material interests of such persons in transactions with the
Company. Such reports and other information filed by the
Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street
N.W., Room 1024, Washington, D.C. 20549-1004; and at the
following Regional Offices of the Commission: Chicago
Regional Office, 500 W. Madison Street, Suite 1400, Chicago,
Illinois 60661, and New York Regional Office, 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of
such material can also be obtained at prescribed rates from
the Public Reference Branch of the Commission at its
principal office at 450 Fifth Street N.W., Washington, D.C.
20549-1004. Reports and other information concerning the
Company may also be inspected at the office of the New York
Stock Exchange at 20 Broad Street, New York, New York 10005,
on which exchange certain of the Company's securities are
listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for
the year ended December 31, 1994 (the "1994 10-K").
2. The Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995.
3. The Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995.
4. The Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1995.
In addition, all documents filed by the Company with
the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act after the date of this Prospectus and prior to
the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents (such
documents, and the documents enumerated above, being herein
referred to as "Incorporated Documents," provided, however,
that the documents enumerated above or subsequently filed by
the Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act prior to the filing of the Company's next
Annual Report on Form 10-K with the Commission shall not be
Incorporated Documents or be incorporated by reference in
this Prospectus or be a part hereof from and after any such
filing of an Annual Report on Form 10-K).
Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for all
purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed
Incorporated Document or in a Prospectus Supplement modifies
or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge
to each person, including any beneficial owner, to whom a
copy of this Prospectus has been delivered, on the written
or oral request of any such person, a copy of any or all of
the Incorporated Documents, other than exhibits to such
documents, unless such exhibits are specifically
incorporated by reference herein. Requests for such copies
should be directed to Christopher T. Screen, P.O. Box 61000,
New Orleans, La. 70161, telephone: (504) 576-4212. The
information relating to the Company contained in this
Prospectus and any accompanying Prospectus Supplement does
not purport to be comprehensive and should be read together
with information contained in the Incorporated Documents.
No person has been authorized to give any information
or to make any representation not contained in this
Prospectus, as supplemented or amended, or with respect to
the Debt Securities, and, if given or made, such information
or representation must not be relied upon as having been
authorized by the Company or any other person. This
Prospectus does not constitute an offer to sell or a
solicitation of any offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it
is unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of
the Company since the date of this Prospectus.
<PAGE>
THE COMPANY
The Company was incorporated under the laws of the
State of Arkansas in 1926. The Company's principal
executive offices are located at 425 West Capitol Avenue,
Little Rock, Arkansas 72201. Its telephone number is 501-
377-4000.
The Company is an electric public utility company with
substantially all of its operations in the State of
Arkansas. The Company also has minor operations in the
State of Tennessee. All of the outstanding common stock of
the Company is owned by Entergy Corporation ("Entergy"), a
Delaware corporation. Entergy is a registered public
utility holding company under the Public Utility Holding
Company Act of 1935, as amended ("Holding Company Act").
The Company, Gulf States Utilities Company, Louisiana Power
& Light Company ("LP&L"), Mississippi Power & Light Company
("MP&L") and New Orleans Public Service Inc. ("NOPSI") are
operating electric utility subsidiaries of Entergy. Entergy
also owns, among other things, all of the common stock of
System Energy Resources, Inc., a generating company, and
Entergy Operations, Inc., a nuclear management services
company.
The Company, LP&L, MP&L and NOPSI own all of the
capital stock of System Fuels, Inc., a special purpose
company which implements and/or maintains certain programs
for the procurement, delivery and storage of fuel supplies
for Entergy subsidiaries, including the Company.
The foregoing information relating to the Company does
not purport to be comprehensive and should be read together
with the financial statements and other information
contained in the Incorporated Documents.
<PAGE>
USE OF PROCEEDS
Except as otherwise described in any Prospect
Supplement, the net proceeds to be received from the
issuance and sale of the Offered Securities are expected to
be applied primarily to the redemption, repurchase,
repayment or retirement of outstanding indebtedness of the
Company and for other general corporate purposes. The
interest rate and maturity of any indebtedness to be
discharged with the proceeds of any series of the Debt
Securities will be set forth in the applicable Prospectus
Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
Twelve Months Ended
Septemb December 31,
er 30,
1995 1994 1993 1992 1991 1990
(b)
Ratios of
Earnings
to Fixed 2.63 2.32 3.11 2.28 2.25 2.16
Charges(a)
_______________________
(a) "Earnings," as defined by Commission Regulation S-K,
represent the aggregate of (1) net income, (2) taxes
based on income, (3) investment tax credit adjustments-
net and (4) fixed charges. "Fixed Charges" include
interest (whether expensed or capitalized), related
amortization and interest applicable to rentals charged
to operating expenses.
(b) Earnings for the twelve months ended December 31,
1993 include the approximate $81 million cumulative
effect as of January 1, 1993 of a change in accounting
principle to provide for the accrual of estimated
unbilled revenues.
<PAGE>
DESCRIPTION OF DEBT SECURITIES
Set forth below are certain general terms and
provisions of the Debt Securities, which may be issued from
time to time in one or more series. The particular terms of
each series of Offered Securities will be described in a
Prospectus Supplement relating thereto. Accordingly, for a
description of the terms of any particular series, reference
must be made to both the description set forth below and the
Prospectus Supplement relating thereto.
The statements under this heading do not purport to be
complete and are subject to the detailed provisions of an
Indenture to be dated as of March 1, 1996, (the "Indenture")
between the Company and Chemical Bank, as trustee (the
"Trustee"), a copy of which has been filed as an exhibit to
the Registration Statement of which this Prospectus is a
part. References in parentheses below refer to section
numbers in the Indenture and capitalized terms not otherwise
defined herein shall have the respective meanings ascribed
to them in the Indenture.
General
The Debt Securities may be issued in one or more new
series under the Indenture. The Indenture does not contain
any limitation on the principal amount of Debt Securities
which may be issued thereunder. The Debt Securities
initially will be secured obligations of the Company,
entitled to a lien on the Company's assets subject to the
first lien of the Company's Mortgage and Deed of Trust,
dated as of October 1, 1944, to Guaranty Trust Company of
New York (Bankers Trust Company, successor) (the "Mortgage
Corporate Trustee"), Henry Theis (Stanley Burg, successor),
and, as to property in Missouri, Marvin A. Mueller (The
Boatmen's National Bank of St. Louis, successor), as
Trustees (together, the "Mortgage Trustees"), as heretofore
supplemented and amended by Fifty-two Supplemental
Indentures, and as hereafter supplemented and amended (the
"Mortgage").
The lien of the Indenture is junior and subordinate to
the lien of the Mortgage on substantially all of the
Company's electric utility plant properties. At September
30, 1995, approximately $919.8 million principal amount of
bonds were outstanding under the Mortgage. Such bonds and
all other bonds issued or to be issued under the Mortgage
are hereinafter referred to as "First Mortgage Bonds."
See "Discharge of Lien" for a discussion of provisions
of the Indenture pursuant to which, subject to the
satisfaction of specified conditions, all of the Mortgaged
Property would be released from the lien of the Indenture
and the Debt Securities would become unsecured obligations
of the Company.
Reference is made to the Prospectus Supplement relating
to any particular series of Offered Securities for the
following terms, among others: (1) the title of such Debt
Securities; (2) any limit on the aggregate principal amount
of such Debt Securities or the series of which they are a
part; (3) the date or dates on which the principal of any of
such Debt Securities will be payable; (4) the rate or rates
at which any of such Debt Securities will bear interest, if
any, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such
interest will be payable and the Regular Record Date for any
such interest payable on any Interest Payment Date; (5) the
place or places where the principal of and premium, if any,
and interest on any of such Debt Securities will be payable;
(6) the period or periods within which, the price or prices
at which and the terms and conditions on which any of such
Debt Securities may be redeemed, in whole or in part, at the
option of the Company; (7) the obligation, if any, of the
Company to redeem or purchase any of such Debt Securities
pursuant to any sinking fund or analogous provision or at
the option of the Holder thereof, and the period or periods
within which, the price or prices at which and the terms and
conditions on which any of such Debt Securities will be
redeemed or purchased, in whole or in part, pursuant to any
such obligation; (8) the denominations in which any of such
Debt Securities will be issuable, if other than
denominations of $1,000 and integral multiples thereof; (9)
if the amount of principal of or any premium or interest on
any of such Debt Securities will be determined with
reference to an index or pursuant to a formula, the manner
in which such amounts will be determined; (10) if any such
Debt Securities will be issued in global form and, if so,
any and all matters incidental to such Debt Securities; (11)
any addition to the Events of Default applicable to any of
such Debt Securities; (12) any addition to the covenants of
the Company for the benefit of the Holders of such Debt
Securities in the Indenture; and (13) any other terms of
such Debt Securities not inconsistent with the provisions of
the Indenture. (Section 301).
Form, Exchange and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities of each series will be
issuable only in fully registered form without coupons and
in denominations of $1,000 and any integral multiple
thereof. (Sections 201 and 302).
At the option of the Holder, subject to the terms of
the Indenture and the limitations applicable to global
securities, Debt Securities of any series will be
exchangeable for other Debt Securities of the same series,
of any authorized denomination and of like tenor and
aggregate principal amount. (Section 305).
Subject to the terms of the Indenture and the
limitations applicable to global securities, Debt Securities
may be presented for exchange as provided above or for
registration of transfer (duly endorsed or accompanied by a
duly executed instrument of transfer) at the office of the
Security Registrar or at the office of any transfer agent
designated by the Company for such purpose. The Company may
designate itself the Security Registrar. Except as
otherwise provided in the applicable Prospectus Supplement,
no service charge will be made for any registration of
transfer or exchange of Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being
satisfied with the documents of title and identity of the
person making the request. (Section 305). Any transfer
agent (in addition to the Security Registrar) initially
designated by the Company for any Debt Securities will be
named in the applicable Prospectus Supplement. The Company
may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts,
except that the Company will be required to maintain a
transfer agent in each Place of Payment for the Debt
Securities of each series. (Section 602).
The Company will not be required to (i) issue, register
the transfer of, or exchange any Debt Security or any
Tranche thereof during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of any such Debt Security called for redemption
and ending at the close of business on the day of such
mailing or (ii) register the transfer of or exchange any
Debt Security so selected for redemption, in whole or in
part, except the unredeemed portion of any such Debt
Security being redeemed in part. (Section 305).
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of interest on a Debt Security on any
Interest Payment Date will be made to the person in whose
name such Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus
Supplement, principal of and any premium and interest on the
Debt Securities of a particular series will be payable at
the office of such Paying Agent or Paying Agents as the
Company may designate for such purpose from time to time.
Unless otherwise indicated in the applicable Prospectus
Supplement, the corporate trust office of the Trustee in New
York City will be designated as the Company's sole Paying
Agent for payments with respect to Debt Securities of each
series. Any other Paying Agents initially designated by the
Company for the Debt Securities of a particular series will
be named in the applicable Prospectus Supplement. The
Company may at any time designate additional Paying Agents
or rescind the designation of any Paying Agent or approve a
change in the office through which any Paying Agent acts,
except that the Company will be required to maintain a
Paying Agent in each Place of Payment for the Debt
Securities of a particular series. (Section 602).
All moneys paid by the Company to a Paying Agent for
the payment of the principal of or any premium or interest
on any Debt Security which remain unclaimed at the end of
two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and
the Holder of such Debt Security thereafter may look only to
the Company for payment thereof. (Section 603).
Redemption
Any terms for the optional or mandatory redemption of
any series of Debt Securities will be set forth in the
applicable Prospectus Supplement. Except as shall otherwise
be provided in the applicable Prospectus Supplement with
respect to Debt Securities that are redeemable at the option
of the Holder, Debt Securities will be redeemable only upon
notice by mail not less than 30 nor more than 60 days' prior
to the date fixed for redemption, and, if less than all the
Debt Securities of a series, or any Tranche thereof, are to
be redeemed, the particular Debt Securities to be redeemed
will be selected by such method as shall be provided for any
particular series, or in the absence of any such provision,
by such method of random selection as the Security Registrar
deems fair and appropriate. (Sections 403 and 404).
Any notice of redemption at the option of the Company
may state that such redemption will be conditional upon
receipt by the Paying Agent or Agents, on or prior to the
date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any,
on such Debt Securities and that if such money has not been
so received, such notice will be of no force and effect and
the Company will not be required to redeem such Debt
Securities. (Section 404).
Except as may be provided in the applicable Prospectus
Supplement, the Debt Securities will not have the benefit of
a sinking fund.
Security
Except as otherwise contemplated below under this
heading and under "Issuance of Debt Securities," and subject
to the exceptions specifically discussed under "Discharge of
Lien" and under "Defeasance," all Outstanding Debt
Securities will be secured, equally and ratably, by the
Indenture, which constitutes, in the opinion of counsel for
the Company, a lien on substantially all electric utility
plant properties of the Company (except properties released
under the terms of the Indenture and except as stated
below), subject to, among other things, (1) the first lien
of the Mortgage and other excepted encumbrances, (2) minor
defects and encumbrances customarily found in properties of
like size and character which do not materially impair the
use of the property affected thereby in the conduct of the
business of the Company, and (3) other liens, defects and
encumbrances, if any, existing or placed thereon at the time
of acquisition thereof by the Company and except as limited
by bankruptcy law. There are excepted from the lien certain
property including, among other things, cash, deposit
accounts, securities; contracts, leases and other agreements
of all kinds; contract rights, bills, notes and other
instruments; revenues, accounts and accounts receivable and
unbilled revenues, claims, demands and judgments;
governmental and other licenses, permits, franchises,
consents and allowances (except to the extent that any of
the same constitute rights or interests relating to the
occupancy or use of real property); certain intellectual
property rights and other general intangibles; vehicles,
movable equipment and aircraft; all goods, stock in trade,
wares, merchandise and inventory held for sale or lease in
the ordinary course of business; materials, supplies,
inventory and other personal property consumable in the
operation of the Mortgaged Property; fuel; portable tools
and equipment; furniture and furnishings; computers and data
processing, telecommunications and other facilities used
primarily for administrative or clerical purposes or
otherwise not used in connection with the operation or
maintenance of electric, gas or water utility facilities;
coal, ore, gas, oil and other minerals and timber; electric
energy, gas (natural or artificial), steam, water and other
products generated, produced, manufactured, purchased or
otherwise acquired by the Company; real property, gas wells,
pipe lines, and other facilities used primarily for the
production or gathering of natural gas; and leasehold
interests held by the Company as lessee. (Granting
Clauses).
The Indenture contains provisions for subjecting after-
acquired property (subject to the Mortgage and pre-existing
liens) to the lien thereof, subject to limitations in the
case of consolidation, merger or sale of substantially all
of the Company's assets and subject to the Company's right
to exclude from the Lien of the Indenture any kind or
character of property. See "Modification of Indenture."
"" While the Indenture contains provisions for the
maintenance of the Mortgaged Property, it does not contain
any provisions for a maintenance fund.
The Indenture provides that the Trustee shall have a
lien upon the Mortgaged Property, prior to the Debt
Securities, for the payment of its reasonable compensation,
expenses and disbursements and for indemnity against certain
liabilities.
""Issuance of Debt Securities
The aggregate principal amount of Debt Securities which
may be authenticated and delivered under the Indenture is
unlimited. (Section 301). So long as the Lien of the
Indenture has not been discharged, debt Securities of any
series may be issued from time to time only on the basis of:
(1) Total Equity, so long as (i) the amount of
Debt Securities to be so issued does not exceed the
Collateral Balance and (ii) the sum of the aggregate
principal amount of Debt Securities previously
authenticated and delivered on the basis of Total
Equity which are Outstanding and the aggregate
principal amount of Debt Securities to be so issued
does not exceed three times the amount of Total Equity
("Total Equity Test");
(2) the aggregate principal amount of First
Mortgage Bonds delivered to the Trustee, so long as the
amount of Debt Securities to be so issued does not
exceed the Collateral Balance; or
(3) an amount of cash deposited with the Trustee,
so long as the amount of Debt Securities to be so
issued does not exceed the Collateral Balance. (Article
Fifteen).
"Total Equity" is defined in the Indenture to mean the
sum of the capital stock (excluding treasury stock and
capital stock subscribed for and unissued) and surplus
(including earned surplus, paid-in surplus, capital surplus
and the balance of current profit and loss account not
transferred to surplus) accounts of the Company appearing on
a balance sheet of the Company prepared as of the date of
determination in accordance with generally accepted
accounting principles consistent with those applied in the
preparation of the financial statements of the Company filed
with the Commission.
"Collateral Balance" is defined in the Indenture to
mean the Book Value of Mortgaged Property determined as of a
stated date (the "Collateral Balance Date") which shall be
not more than six months prior to the date of the Officer's
Certificate of Collateral Balance plus the amount of Funded
Cash held by the Trustee as of the date of such Officer's
Certificate less the sum of (i) the principal amount of all
outstanding First Mortgage Bonds (other than First Mortgage
Bonds delivered to the Trustee) as of the date of such
Officer's Certificate; (ii) the principal amount of all
Outstanding Debt Securities issued under the Indenture
immediately prior to the delivery of such Officer's
Certificate; (iii) the aggregate principal amount of all
outstanding debt securities (other than First Mortgage
Bonds) of the Company secured by a lien on the Mortgaged
Property prior to the lien of the Indenture which are
Outstanding as of the date of such Officer's Certificate;
and (iv) the aggregate Fair Value of all Mortgaged Property
released from the lien of the Indenture after the Collateral
Balance Date and prior to the date of such Officer's
Certificate.
First Mortgage Bonds
First Mortgage Bonds to be made the basis for the
authentication and delivery of Debt Securities (a) will be
delivered to, and registered in the name of, the Trustee or
its nominee and will be owned and held by the Trustee,
subject to the provisions of the Indenture, for the benefit
of the Holders of all Debt Securities Outstanding from time
to time; (b) will mature or be subject to mandatory
redemption on the same dates, and in the same principal
amounts, as such Debt Securities; and (c)(i) may, but need
not, bear interest and (ii) may, but need not, contain
provisions for the redemption thereof at the option of the
Company, any such redemption to be made at a redemption
price or prices not less than the principal amount of such
First Mortgage Bonds. (Sections 1504 and 1507). To the
extent that First Mortgage Bonds do not bear interest,
Holders of Debt Securities will not have the benefit of the
lien of the Mortgage in respect of an amount equal to
accrued interest, if any, on the Debt Securities; however,
such Holders will nevertheless have the benefit of the lien
of the Indenture in respect of such amount.
Any payment by the Company of principal of or premium
or interest on the First Mortgage Bonds delivered to and
held by the Trustee will be applied by the Trustee to the
payment of any principal, premium or interest, as the case
may be, in respect of the Debt Securities which is then due
and, to the extent of such payment, the obligation of the
Company under the Indenture to make such payment in respect
of the Debt Securities will be deemed satisfied and
discharged. If, at the time of any such payment of
principal of First Mortgage Bonds, there shall be no
principal then due in respect of the Debt Securities, the
proceeds of such payment will be deemed to constitute Funded
Cash and will be held by the Trustee as part of the
Mortgaged Property, to be withdrawn, used or applied as
provided in the Indenture. If, at the time of any such
payment of premium or interest on First Mortgage Bonds,
there shall be no premium or interest then due in respect of
the Debt Securities, such payment will be remitted to the
Company at its request; provided, however, that, if an Event
of Default, as described below, shall have occurred and be
continuing, such payment shall be held as part of the
Mortgaged Property until such Event of Default shall have
been cured or waived. (Section 1508 and "Withdrawal of
Cash" below). Any payment by the Company of principal of or
premium or interest on Debt Securities authenticated and
delivered on the basis of the delivery to the Trustee of
First Mortgage Bonds (other than by application of the
proceeds of a payment in respect of such First Mortgage
Bonds) will, to the extent thereof, be deemed to satisfy and
discharge the obligation of the Company, if any, to make a
payment of principal, premium or interest, as the case may
be, in respect of such First Mortgage Bonds which is then
due. (Section 1508).
The Trustee may not sell, assign or otherwise transfer
any First Mortgage Bonds except to a successor Trustee under
the Indenture. (Section 1510). At the time any Debt
Securities that have been authenticated and delivered upon
the basis of First Mortgage Bonds cease to be Outstanding
(other than as a result of the application of the proceeds
of the payment or redemption of such First Mortgage Bonds),
the Trustee will surrender to, or upon the order of, the
Company an equal principal amount of such First Mortgage
Bonds. (Section 1509).
Release of Property
Unless an Event of Default has occurred and is
continuing, the Company may obtain the release from the lien
of the Indenture of any Mortgaged Property, except for cash
or First Mortgage Bonds delivered to the Trustee, upon
delivery to the Trustee of an Officer's Certificate of
Collateral Balance showing a Collateral Balance which is not
less than the Fair Value of the property to be released.
(Section 1515).
If the Company retains any interest in any property
released from the lien of the Indenture, the Indenture will
not become a lien on such property or such interest therein
or any improvements, extensions or additions to such
property or renewals, replacements or substitutions of or
for such property or any part or parts thereof. (Section
1520).
Release of Mortgaged Property on the Basis of Cash or
Government Obligations
Mortgaged Property may also be released from the Lien
of the Indenture on the basis of cash or Government
Obligations delivered to the Trustee in an amount equal to
the Fair Value of the property to be released.
Release of First Mortgage Bonds
First Mortgage Bonds may generally be released from the
lien of the Indenture upon delivery to the Trustee of an
amount in cash, if any, by which the principal amount of the
First Mortgage Bonds to be released exceeds the aggregate
of: (a) the amount of any Outstanding Debt Securities
delivered to the Trustee and (b) an amount which shall not
exceed the Collateral Balance shown on the Officer's
Certificate of Collateral Balance, provided that the Trustee
will receive an Officer's Certificate showing that the
Company meets the Total Equity Test. After the release of
any First Mortgage Bonds, Debt Securities issued on the
basis of such First Mortgage Bonds will be deemed to have
been issued on the basis of Total Equity. (Section 1514).
The Indenture provides simplified procedures for the
release of property which has been released from the lien of
the Mortgage.""
Withdrawal of Cash
Unless an Event of Default has occurred and is
continuing and subject to certain limitations, cash held by
the Trustee may, generally, (1) be withdrawn by the Company
(a) to the extent of the Collateral Balance shown in the
Officer's Certificate of Collateral Balance, provided that
the Company also delivers to the Trustee an Officer's
Certificate showing that the Company meets the Total Equity
Test or (b) in an amount equal to the aggregate principal
amount of any Outstanding Debt Securities delivered to the
Trustee, or (2) upon the request of the Company, be applied
to (a) the purchase of Outstanding Debt Securities or
(b) the payment (or provision therefor) at Stated Maturity
of any Outstanding Debt Securities or the redemption (or
provision therefor) of any Outstanding Debt Securities which
are redeemable. (Section 1517). Any Outstanding Debt
Securities which were authenticated and delivered on the
basis of cash deposited with the Trustee which cash is
withdrawn as contemplated in clause (a) above, shall after
such withdrawal be deemed to have been authenticated and
delivered on the basis of Total Equity.
Voting of First Mortgage Bonds
The Indenture provides that the Trustee will, as holder
of First Mortgage Bonds delivered as the basis for the
issuance of Debt Securities, attend such meetings of
bondholders under the Mortgage, or deliver its proxy in
connection therewith, as such meetings relate to matters
with respect to which it is entitled to vote or consent.
The Indenture provides that, so long as no Event of Default
has occurred and is continuing, the Trustee will, as holder
of First Mortgage Bonds, (a) vote all such First Mortgage
Bonds delivered under the Mortgage then held by it, or will
consent with respect thereto, in favor of any or all
amendments or modifications described under "DESCRIPTION OF
THE MORTGAGE - Modification of the Mortgage;" and (b) with
respect to any amendments or modifications to the Mortgage
other than those amendments or modifications referred to in
clause (a) above, vote all such First Mortgage Bonds
delivered under the Mortgage, or consent with respect
thereto, proportionately with the vote or consent of holders
of all other First Mortgage Bonds outstanding under the
Mortgage the holders of which are eligible to vote or
consent, as evidenced by a certificate delivered by the
trustee under the Mortgage; provided, however, that the
Trustee will not vote in favor of, or consent to, any
amendment or modification of the Mortgage which, if it were
an amendment or modification of the Indenture, would require
the consent of Holders of Debt Securities as described under
"Modification of the Indenture," without the prior consent
of Holders of Debt Securities which would be required for
such an amendment or modification of the Indenture.
(Section 1511).
Events of Default
The Indenture defines the occurrence of any one or more
of the following events to be an "Event of Default":
(a) failure to pay any interest on any Debt
Security within 60 days after the same becomes due
and payable;
(b) failure to pay the principal of or premium, if
any, on any Debt Security when due and payable;
(c) failure to perform or breach of any other
covenant or warranty of the Company in the Indenture
(other than a covenant or warranty a default in the
performance of which or breach of which is elsewhere
in this paragraph specifically dealt with or which
has expressly been included in the Indenture solely
for the benefit of one or more series of Debt
Securities other than such series), for 60 days
after written notice to the Company by the Trustee,
or to the Company and the Trustee by the Holders of
at least 33% in principal amount of the Debt
Securities Outstanding under the Indenture as
provided in the Indenture;
(d) certain events of bankruptcy, insolvency or
reorganization; or
(e) so long as the Trustee holds any Outstanding
First Mortgage Bonds which were delivered to the
Trustee as the basis for the authentication and
delivery of Debt Securities which remain
Outstanding, the occurrence of a matured event of
default under the Mortgage (other than any such
matured event of default which is of similar kind or
character to the Event of Default described in (c)
above and which has not resulted in the acceleration
of the First Mortgage Bonds outstanding under the
Mortgage); provided that the waiver or cure of any
such event of default and the rescission and
annulment of the consequences thereof shall
constitute a waiver of the corresponding Event of
Default under the Indenture and a rescission and
annulment of the consequences thereof. (Section
1521).
(f) any other Event of Default specified with
respect to the Debt Securities. (Section 801).
Remedies
If an Event of Default occurs and is continuing, then
either the Trustee or the Holders of not less than 33% in
principal amount of the Outstanding Debt Securities may
declare the principal amount (or if any of the Debt
Securities are Discount Securities, such portion of the
principal amount of such Debt Securities as may be specified
in the applicable Prospectus Supplement) of all of the Debt
Securities then Outstanding to be due and payable
immediately.
At any time after such declaration of acceleration of
maturity with respect to the Debt Securities then
Outstanding shall have been made, but before any sale of any
of the Mortgaged Property has been made by the Trustee and
before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Event of Default giving
rise to such declaration of acceleration will, without
further act, be deemed to have been waived, and such
declaration and its consequences will, without further act,
be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(1) all overdue interest on the Debt Securities
then Outstanding;
(2) the principal of and premium, if any, on the
Debt Securities then Outstanding which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities;
and
(3) all amounts due to the Trustee under the
Indenture;
and
(b) any other Event or Events of Default other than
the nonpayment of the principal of the Debt
Securities which has become due solely by such
declaration of acceleration, have been cured or
waived as provided in the Indenture. (Sections 802
and 1522).
If an Event of Default occurs and is continuing, the
Holders of a majority in principal amount of the Outstanding
Debt Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee; provided, however, that (a) such
direction will not be in conflict with any rule of law or
with the Indenture and will not involve the Trustee in
personal liability in circumstances where reasonable
indemnity would not in the Trustee's sole discretion be
adequate and (b) the Trustee may take any other action it
deems proper which is not inconsistent with such direction.
(Sections 812 and 1530).
The Indenture provides that, under certain
circumstances and to the extent permitted by law, if an
Event of Default occurs and is continuing, the Trustee has
the power to take possession of, and to hold, operate and
manage, the Mortgaged Property, or with or without entry,
sell the Mortgaged Property. If the Mortgaged Property is
sold, whether by the Trustee or pursuant to judicial
proceedings, the principal of the Outstanding Debt
Securities, if not previously due, will become immediately
due, together with premium, if any, and any accrued
interest. (See Sections 1523, 1524 and 1525).
The Holders of a majority in principal amount of the
then Outstanding Debt Securities may waive any past default
under the Indenture except a default (a) in the payment of
the principal of or premium, if any, or interest, if any, on
any Outstanding Debt Security or (b) with respect to a
covenant or provision of the Indenture which under the
Indenture cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security of any
series affected. (Sections 813 and 1531).
The right of a Holder of the Debt Securities to
institute a proceeding with respect to the Indenture is
subject to certain conditions precedent, but each Holder has
an absolute right to receive payment of principal and
premium, if any, and interest, if any, on or after the
applicable due date specified in such Debt Security and to
institute suit for the enforcement of any such payment.
(Sections 807 and 808). The Indenture provides that the
Trustee, within 90 days after the occurrence of any default
thereunder, is required to give the Holders of the Debt
Securities notice of such default, unless cured or waived;
provided, however, that, except in the case of a default in
the payment of principal of or premium, if any, or interest,
if any, on the Debt Securities, the Trustee may withhold
such notice if the Trustee determines that it is in the
interest of such Holders to do so; and provided, further,
that in the case of an Event of Default of the character
specified above in clause (c) under "Events of Default," no
such notice shall be given to such Holders until at least 75
days after the occurrence thereof. (Section 902).
The Indenture provides that, after the Lien of the
Indenture has been discharged, Events of Default and waivers
thereof and remedies with respect thereto are applicable to
the Debt Securities on a series by series basis. (Sections
802 and 1522).
The Company will be required to furnish annually to the
Trustee a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Indenture, such
compliance to be determined without regard to any period of
grace or requirement of notice under the Indenture.
(Section 606).
Consolidation, Merger, Conveyance, Transfer or Lease
The Company may not consolidate with or merge into any
other corporation or convey, otherwise transfer or lease the
properties and assets of the Company as or 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 other transfer,
or which leases, the properties and assets of the Company as
or substantially as an entirety is a corporation organized
and existing under the laws of the United States, or any
State or Territory thereof or the District of Columbia, and
such corporation executes and delivers to the Trustee a
supplemental indenture which contains an assumption by such
corporation of the due and punctual payment of the principal
of and premium, if any, and interest, if any, on the Debt
Securities and the performance of all of the covenants and
conditions of the Company under the Indenture and, so long
as the Lien of the Indenture has not been discharged, which
contains a grant, conveyance, transfer and mortgage by such
corporation confirming the lien of the Indenture on the
Mortgaged Property and subjecting to such lien all property
thereafter acquired by such corporation which shall
constitute an improvement, extension or addition to the
Mortgaged Property or renewal, replacement or substitution
of or for any part thereof and, at the election of such
corporation, subjecting to the lien of the Indenture such
other property then owned or thereafter acquired by such
corporation as such corporation shall specify and (b) in the
case of a lease, such lease is made expressly subject to
termination by the Company or by the Trustee at any time
during the continuance of an Event of Default. (Sections
1101 and 1535). In the case of the conveyance or other
transfer of the properties and assets of the Company as or
substantially as an entirety to any other Person, upon the
satisfaction of all the conditions described above, the
Company would be released and discharged from all
obligations under the Indenture and on the Debt Securities
then Outstanding unless the Company elects to waive such
release and discharge. (Sections 1102 and 1538).
Unless otherwise indicated in the applicable Prospectus
Supplement, there are no provisions that will afford the
holders of Debt Securities protection in the event of a
highly leveraged transaction involving the Company or that
will require the repurchase of the Debt Securities upon a
change in control of the Company.
Modification of Indenture
Without the consent of any Holders of Debt Securities,
the Company and the Trustee may enter into one or more
supplemental indentures, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor
of the covenants of the Company in the Indenture and
the Debt Securities;
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Outstanding Debt Securities or to surrender any
right or power conferred upon the Company by the
Indenture;
(c) to add any additional Events of Default with
respect to all or any series of Outstanding Debt
Securities;
(d) to change or eliminate any provision of the
Indenture or to add any provision to the Indenture;
provided that if such change, elimination or
addition will adversely affect the interests of the
Holders of Debt Securities of any series in any
material respect, such change, elimination or
addition will become effective with respect to such
series only when there is no Debt Security of such
series remaining Outstanding under the Indenture;
(e) to establish the form or terms of Debt
Securities of any series as permitted by the
Indenture;
(f) to provide for the authentication and delivery
of bearer securities and coupons appertaining
thereto representing interest, if any, thereon and
for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders
thereof, and any matters incidental thereto;
(g) to evidence and provide for the acceptance of
appointment of a separate or successor Trustee under
the Indenture with respect to the Debt Securities of
one or more series and to add to or change any of
the provisions of the Indenture as shall be
necessary to provide for or to facilitate the
administration of the trusts under the Indenture by
more than one Trustee;
(h) to provide for the procedures required to
permit the utilization of a noncertificated system
of registration for any series of Debt Securities;
(i) to change any place or places where (1) the
principal of and premium, if any, and interest, if
any, on all or any series of Debt Securities shall
be payable, (2) all or any series of Debt Securities
may be surrendered for registration of transfer, (3)
all or any series of Debt Securities may be
surrendered for exchange, and (4) notices and
demands to or upon the Company in respect of all or
any series of Debt Securities may be served;
(j) to cure any ambiguity, defect or inconsistency
or to make any other changes to the provisions of
the Indenture with respect to matters and questions
arising under the Indenture, provided such action
shall not adversely affect the interests of the
Holders of Debt Securities of any series in any
material respect; (Section 1201)
(k) to correct or amplify the description of any
property at any time subject to the Lien of the
Indenture; or better to assure, convey and confirm
unto the Trustee any property subject or required to
be subjected to the Lien of the Indenture; or to
subject to the Lien of the Indenture additional
property (including property of Persons other than
the Company);
(l) to exclude from the Lien of the Indenture any
kind or character of property, provided, that any
Mortgaged Property of such kind or character shall
have been released from the Lien of the Indenture or
shall be subject to a release application to the
Trustee; or
(m) to amend and restate the Indenture, as
originally executed and delivered and as it may have
been subsequently amended, in its entirety as
discussed under "Discharge of Lien." (Section
1532).
The consent of the Holders of a majority in aggregate
principal amount of the Debt Securities of all series then
Outstanding under the Indenture, considered as one class, is
required for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions
of, the Indenture pursuant to one or more supplemental
indentures; provided, however, that if less than all of the
series of Debt Securities Outstanding under the Indenture
are directly affected by a supplemental indenture, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of all
series so directly affected, considered as one class, will
be required; and provided, further, that if the Debt
Securities of any series have been issued in more than one
Tranche and if the proposed supplemental indenture directly
affects the rights of the Holders of Debt Securities of one
or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of all
Tranches so directly affected considered as one class, will
be required; and provided, further, that no such
supplemental indenture will, without the consent of the
Holder of each Outstanding Security under the Indenture of
each such series directly affected thereby, (a) change the
Stated Maturity of, or any installment of principal of or
interest on, any Debt Security, or reduce the principal
thereof or the rate of interest (or the amount of any
installment of interest thereon), if any, thereon or
redemption premium thereon, or change the method of
calculating the rate of interest thereon, or reduce the
amount of the principal of any Discount Security that would
be due and payable upon a declaration of acceleration of the
Maturity thereof, or change the coin or currency (or other
property) in which any Debt Security or any premium or the
interest thereon is payable or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity of any Debt Security (or, in the case of
redemption, on or after the Redemption Date), (b) (except as
contemplated under "Discharge of Lien") terminate the lien
of the Indenture on all or substantially all of the
Mortgaged Property or deprive the Holders of the benefit of
the lien of the Indenture, without, in any such case, the
consent of the Holders of all Debt Securities then
Outstanding (Section 1533), (c) reduce the percentage in
principal amount of the Debt Securities Outstanding under
such series, the consent of the Holders of which is required
for any supplemental indenture or waiver of compliance with
any provision of the Indenture or any default thereunder and
its consequences, or to reduce the requirements for quorum
and voting under the Indenture, or (d) modify certain of the
provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past
defaults.
A supplemental indenture which changes or eliminates
any covenant or other provision of the Indenture which has
expressly been included solely for the benefit of one or
more particular series of Debt Securities or one or more
Tranches thereof, or which modifies the rights of the
Holders of Debt Securities of such series or Tranches with
respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders
of Debt Securities of any other series or Tranche. (Section
1202).
The Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding
Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under
the Indenture or whether a quorum is present at a meeting of
Holders of Debt Securities, (i) Debt Securities owned by the
Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns all
Outstanding Debt Securities under the Indenture, or all
Outstanding Debt Securities of each such series and each
such Tranche, as the case may be, determined without regard
to this clause (i)) shall be disregarded and deemed not to
be Outstanding; (ii) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof as provided in the Indenture; and (iii) the
principal amount of a Debt Security denominated in one or
more foreign currencies or a composite currency that will be
deemed to be Outstanding will be the amount of Dollars which
could have been purchased by the principal amount (or, in
the case of a Debt Security described in clause (ii) above,
of the amount described in such clause) of such currency or
composite currency evidenced by such Debt Security.
(Section 101).
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, by
Company Order, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
election, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be
Holders for the purposes of (i) determining whether Holders
of the requisite proportion of the Outstanding Debt
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act and for that purpose the Outstanding
Debt Securities shall be computed as of the record date or
(ii) determining which Holders may revoke any such Act. Any
request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every
future Holder of the same Debt Security and the Holder of
every Debt Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Debt Security.
(Section 104).
Discharge of Lien
The Indenture may be amended and restated in its
entirety, without the consent of the Holders of Debt
Securities, to eliminate all terms and conditions relating
to collateral security for the Debt Securities, with the
result that the Indenture, as so amended and restated, and
the Debt Securities would be entirely unsecured obligations
of the Company. Such amendment and restatement, however, is
subject to the following conditions:
(a) no Event of Default shall have occurred and be
continuing; and;
(b) (i) the Company's Charter has been duly amended
to eliminate the restrictions on the issuance of
unsecured indebtedness; or (ii) all preferred
securities issued by the Company and outstanding are
paid, retired or redeemed; or (iii) holders of such
preferred securities consent to amend the Charter
for the purpose of eliminating such restrictions.
Upon the execution and delivery of an amendment and
restatement of the Indenture as contemplated above, the lien
of the Indenture will be deemed to have been satisfied and
discharged and the Trustee will release, quit claim and
otherwise turn over to the Company the Mortgaged Property.
(Section 1532).
Defeasance
Unless otherwise indicated in the applicable Prospectus
Supplement for a series of Offered Securities, any series of
Debt Securities, or any portion of the principal amount
thereof, will be deemed to have been paid for purposes of
the Indenture (except as to any surviving rights of
registration of transfer or exchange expressly provided for
in the Indenture), and the entire indebtedness of the
Company in respect thereof will be deemed to have been
satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent
(other than the Company), in trust: (a) money in an amount
which will be sufficient, or (b) Government Obligations (as
defined below), which do not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
will be sufficient, or (c) a combination of (a) and (b)
which will be sufficient, to pay when due the principal of
and premium, if any, and interest, if any, due and to become
due on such Debt Securities of such series or portions
thereof. (Section 701). For this purpose, Government
Obligations, include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America
entitled to the benefit of the full faith and credit thereof
and certificates, depository receipts or other instruments
which evidence a direct ownership interest in such
obligations or in any specific interest or principal
payments due in respect thereof.
While there may be no legal precedent on point, it is
possible that for federal income tax purposes, any deposit
contemplated in the preceding paragraph could be treated as
a taxable exchange of the related Debt Securities for an
issue of obligations of the trust or a direct interest in
the cash and securities held in the trust. In that case,
Holders of such Debt Securities would recognize a gain or
loss for federal income tax purposes, as if their share of
the trust obligations or the cash or securities deposited,
as the case may be, had actually been received by them in
exchange for their Debt Securities. In addition, such
Holders thereafter would be required to include in income a
share of the income, gain or loss of the trust. The amount
so required to be included in income could be different from
the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their
own tax advisors as to the specific consequences to them of
such deposit.
Resignation of Trustee
The Trustee may resign at any time by giving written
notice thereof to the Company or may be removed at any time
by Act of the Holders of a majority in principal amount of
the then Outstanding Debt Securities delivered to the
Trustee and the Company. No resignation or removal of the
Trustee and no appointment of a successor Trustee will
become effective until the acceptance of appointment by a
successor Trustee in accordance with the requirements of the
Indenture. So long as no Event of Default or event which,
after notice or lapse of time, or both, would become an
Event of Default has occurred and is continuing and except
with respect to a Trustee appointed by Act of the Holders,
if the Company has delivered to the Trustee a resolution of
its Board of Directors appointing a successor Trustee and
such successor has accepted such appointment in accordance
with the terms of the Indenture, the Trustee will be deemed
to have resigned and the successor will be deemed to have
been appointed as Trustee in accordance with the Indenture.
(Section 910).
Book-Entry System - Global Debt Securities
Unless otherwise specified in the applicable Prospectus
Supplement, the Depository Trust Company, New York, New York
("DTC") will act as securities depository for the Debt
Securities. In such case, the Debt Securities will be
issued only as fully-registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One or more
fully-registered global certificates will be issued for the
Debt Securities representing the aggregate principal amount
of such series of Debt Securities, and will be deposited
with DTC.
DTC is a limited-purpose trust company organized under
the New York Banking Law, a "banking organization" within
the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities that
its participants (the "Direct Participants") deposit with
DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants'
accounts, thereby eliminating the need for physical movement
of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC
is owned by a number of its Direct Participants and by The
New York Stock Exchange, Inc., the American Stock Exchange,
Inc., and the National Association of Securities Dealers,
Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly (the "Indirect Participants," and together with
the Direct Participants, the "Participants"). The rules
applicable to DTC and its Participants are on file with the
Commission.
Purchases of Debt Securities under the DTC system must
be made by or through Direct Participants, which will
receive a credit for the Debt Securities on DTC's records.
The ownership interest of each actual purchaser of each Debt
Security (a "Beneficial Owner") is in turn to be recorded on
the Direct and Indirect Participants' respective records.
Beneficial Owners will not receive written confirmation from
DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the
transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction.
Transfers of ownership interests in the Debt Securities are
to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing
their ownership interest in Debt Securities, except in the
event that use of the book-entry system for the Debt
Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities
deposited by Direct Participants with DTC are registered in
the name of DTC's partnership nominee, Cede & Co. The
deposit of the Debt Securities with DTC and their
registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to
whose accounts such Debt Securities are credited, which may
or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC
to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to
time.
Redemption notices shall be sent to Cede & Co. If less
than all of the securities within an issue are being
redeemed, DTC's practice is to determine by lot the amount
of the interest of each Direct Participant in such series to
be redeemed.
Neither DTC nor Cede & Co. will consent or vote with
respect to the Debt Securities. Under its usual procedures,
DTC mails an omnibus proxy (an "Omnibus Proxy") to the
Company as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts the
Debt Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on
the Debt Securities will be made to DTC. DTC's practice is
to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings
shown on DTC's records unless DTC has reason to believe that
it will not receive payment on such payment date. Payments
by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the
case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the
underwriters, or the Company, subject to any statutory or
regulatory requirements as may be in effect from time to
time. Payment of principal, redemption premium, if any, and
interest to DTC is the responsibility of the Company or the
Trustee. Disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement
of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as
securities depository with respect to the Debt Securities at
any time by giving reasonable notice to the Company. Under
such circumstances, in the event that a successor securities
depository is not obtained, Debt Securities certificates are
required to be printed and delivered. In addition, the
Company may decide to discontinue use of the system of book-
entry transfers through DTC (or a successor securities
depository). In that event, Debt Securities certificates
will be printed and delivered.
The Company will not have any responsibility or
obligation to Participants or the persons for whom they act
as nominees with respect to the accuracy of the records of
DTC, its nominee or any Direct or Indirect Participant with
respect to any ownership interest in the Debt Securities, or
with respect to payments to or providing of notice for the
Direct Participants, the Indirect Participants or the
Beneficial Owners.
So long as Cede & Co. is the registered owner of the
Debt Securities, as nominee of DTC, references herein to
Holders of the Debt Securities shall mean Cede & Co. or DTC
and shall not mean the Beneficial Owners of the Debt
Securities.
The information in this section concerning DTC and
DTC's book-entry system has been obtained from DTC. Neither
the Company, the Trustee nor the underwriters, dealers or
agents takes responsibility for the accuracy or completeness
thereof.
DESCRIPTION OF THE MORTGAGE
The statements under this heading do not purport to be
complete and are subject to the detailed provisions of the
Mortgage, a copy of which has been filed as an exhibit to
the Registration Statement of which this Prospectus is a
part.
Security
The First Mortgage Bonds, now or hereafter issued under
the Mortgage, will be secured by the Mortgage, which
constitutes, in the opinion of counsel for the Company, a
first mortgage lien on all of the present properties of the
Company (except as stated below), subject to (a) leases of
minor portions of the Company's property to others for uses
which, in the opinion of such counsel, do not interfere with
the Company's business, (b) leases of certain property of
the Company not used in its electric utility business, and
(c) excepted encumbrances. There are excepted from the lien
all cash and securities; certain equipment, materials or
supplies; automobiles, other vehicles and aircraft; timber,
minerals, mineral rights and royalties; receivables,
contracts, leases and operating agreements; and certain
unimproved lands sold or to be sold.
The Mortgage contains provisions for subjecting
after-acquired property (subject to pre-existing liens) to
the lien thereof, subject to limitations in the case of
consolidation, merger or sale of substantially all of the
Company's assets.
The Mortgage provides that the Mortgage Trustees shall
have a lien on the mortgaged property, prior to the First
Mortgage Bonds, for the payment of their reasonable
compensation and expenses and for indemnity against certain
liabilities.
The Mortgage contains restrictions on the acquisition
of property subject to liens and on the issuance of First
Mortgage Bonds under divisional or prior lien mortgages.
Maintenance and Replacement Fund
In addition to actual expenditures for maintenance and
repairs, the Company is required to expend or deposit each
year, for replacements and improvements in respect to its
depreciable utility property, an amount equal to $5,800,000
plus 2% of net additions to such depreciable utility
property made after September 30, 1959 and prior to the
beginning of the year for which the calculation is made.
All such requirements may be met by depositing cash, by
certifying gross property additions or by net cash
expenditures for automotive equipment. Such cash may be
withdrawn on similar expenditures or on waiver of the right
to issue First Mortgage Bonds or may be applied to the
retirement of First Mortgage Bonds.
Issuance of Additional First Mortgage Bonds
The maximum principal amount of First Mortgage Bonds
which may be issued under the Mortgage is unlimited. First
Mortgage Bonds of any series may be issued from time to time
on the basis of (1) 60% of property additions after
adjustments to offset retirements; (2) retirement of First
Mortgage Bonds or qualified lien bonds; and (3) deposit of
cash. Deposited cash may be withdrawn upon the bases stated
in (1) and (2). Property additions generally include
electric, gas, steam and/or hot water property acquired
after June 30, 1944, but may not include securities or
rolling stock, or (except to the extent of offsetting
retirements of property of such character) other
transportation property or property used principally for the
production or gathering of natural gas. The Company has
reserved the right, without any consent or other action by
holders of any series of First Mortgage Bonds created after
June 30, 1978, to make available as property additions any
form of space satellites (including solar power satellites),
space stations and other analogous facilities.
With certain exceptions in the case of (2) above, the
issuance of First Mortgage Bonds is subject to adjusted net
earnings for 12 out of the preceding 15 months, before
interest and income taxes, being at least twice the annual
interest requirements on all First Mortgage Bonds at the
time outstanding, including the additional issue, and all
indebtedness of prior rank. Such adjusted net earnings are
computed after provisions for appropriations out of income
for property retirements in an amount at least equal to the
maintenance and replacement fund requirements for such
period.
. The Mortgage contains restrictions on the issuance of
First Mortgage Bonds against property subject to liens and
on the increase of the amount of such liens.
Release and Substitution of Property
Property may be released on the bases of (1) deposit of
cash or, to a limited extent, purchase money mortgages, (2)
property additions, after adjustments in certain cases to
offset retirements and after making adjustments for
qualified lien bonds outstanding against property additions,
and (3) waiver of the right to issue First Mortgage Bonds
without applying any earnings test. Cash may be withdrawn
on the bases stated in (2) and (3) above.
The Mortgage contains special provisions with respect
to qualified lien bonds pledged and disposition of moneys
received on pledged prior lien bonds.
Modification
The rights of the holders of First Mortgage Bonds may
be modified with the consent of the holders of 70% of the
First Mortgage Bonds and, if less than all series of First
Mortgage Bonds are affected, the consent also of the holders
of 70% of the First Mortgage Bonds of each series affected.
See "DESCRIPTION OF DEBT SECURITIES - Voting of First
Mortgage Bonds". The Company has reserved the right,
without any consent or other action by holders of any series
of First Mortgage Bonds created after July 31, 1970, to
substitute for the foregoing provision a provision to the
effect that the rights of the holders of First Mortgage
Bonds may be modified with the consent of holders of 66-2/3%
of the First Mortgage Bonds and, if less than all series of
First Mortgage Bonds are affected, the consent also of
holders of 66-2/3% of the First Mortgage Bonds of each
series affected. In general, no modification of the terms
of payment of principal or interest and no modification
affecting the lien or reducing the percentage required for
modification are effective against any holder of First
Mortgage Bonds without his consent. See also "Issuance of
Additional First Mortgage Bonds".
As discussed under "DESCRIPTION OF DEBT SECURITIES -
Voting of First Mortgage Bonds", the Indenture provides that
the Trustee, as the holder of First Mortgage Bonds,will vote
in favor of certain specified amendments to the Mortgage.
Such amendments would, among other things:
1. modify the release provisions to permit the
release of mortgaged property in an amount equal
to 10/6 of the aggregate principal amount of
retired bonds which the Company elects to use as
the basis for such release;
2. modify the release provisions to permit the
release of unfunded mortgaged property, so long as
the Company has at least $1 in unfunded property
additions remaining;
3. except from the lien of the Mortgage all types of
property that are not eligible for use as the
basis for the issuance of First Mortgage Bonds;
4. reduce the percentage of vote required to modify
bondholders' rights from 70% or 66-2/3%, as the
case may be, to a majority of First Mortgage Bonds
outstanding;
5. change the definition of "Funded Property" to mean
only property specified by the Company with a fair
value, to be determined by an independent expert,
of not less than 10/7 of the amount of outstanding
First Mortgage Bonds;
6. issue First Mortgage Bonds under the Mortgage on
the basis of bonds issued under other mortgages;
7. allow the Company to implement a corporate
division, whereby all or substantially all of the
Company's assets and liabilities, including the
outstanding First Mortgage Bonds, are divided
among two or more successor corporations, one of
which may be the Company;
8. increase the bonding ratio from 60% to 70% of the
cost or fair value (whichever is lower) of
property additions and make correlative changes to
provisions relating to the release of property;
9. modify the net earnings test, to provide, among
other things, that the period over which net
earnings is computed shall be 12 out of the
preceding 18 months, to specifically permit the
inclusion in net earnings of revenues collected
subject to possible refund, allowances for funds
used during construction, and allowances for funds
used for conservation expenses, to provide for no
deduction for non-recurring charges and to
specifically provide for the treatment of variable
interest rates;
10. modify the Mortgage to specifically provide that
if the Company transfers all or substantially all
property to a successor corporation pursuant to
the provisions of Article XVI of the Mortgage, the
Company would be released of all obligations under
the Mortgage;
11. permit the Company to replace a trustee under the
Mortgage, so long as the Company is not in default
under the Mortgage;
12. permit the Company to amend the Mortgage without
the consent of the holders of the First Mortgage
Bonds outstanding thereunder to make changes which
do not adversely affect the interests of the
holders of such First Mortgage Bonds in any
material respect;
13. raise the minimum dollar amount of fire losses
that must be payable to the Mortgage Trustees from
$50,000 to an amount equal to the greater of
$10,000,000 or 3% of the aggregate principal
amount of First Mortgage Bonds outstanding on the
date of a particular loss; and
14. increase the amount of obligations secured by
purchase money mortgage upon any property being
released which can be used as the basis of such a
release.
Defaults and Notice Thereof
An event of default is defined as being: default in
payment of principal; default for a period of 60 days in
payment of interest or of installments of funds for the
retirement of First Mortgage Bonds; certain events in
bankruptcy, insolvency or reorganization; default in payment
of interest on or principal of any outstanding qualified
lien bonds continued beyond grace periods; and default, for
90 days after notice, in other covenants. The Mortgage
Trustees may withhold notice of default (except in payment
of principal, interest or funds for retirement of First
Mortgage Bonds) if they think it is in the interest of the
holders of First Mortgage Bonds to do so.
The Mortgage Corporate Trustee or holders of 25% of the
First Mortgage Bonds may declare the principal and interest
due and payable on default, but the holders of a majority of
First Mortgage Bonds may annul such declaration and destroy
its effect if such default has been cured. No holder of
First Mortgage Bonds may enforce the lien of the Mortgage
unless such holder shall have given the Mortgage Trustees
written notice of a default and unless the holders of 25% of
the First Mortgage Bonds have requested the Mortgage
Trustees in writing to act and have offered the Mortgage
Trustees reasonable opportunity to act and have offered
indemnity satisfactory to the Mortgage Trustees against the
costs, expenses and liabilities to be incurred thereby and
the Mortgage Trustees shall have declined or failed to act.
Holders of a majority of the First Mortgage Bonds may direct
the time, method and place of conducting any proceedings for
any remedy available to the Mortgage Trustees, or exercising
any trust or power conferred upon the Mortgage Trustees.
The Mortgage Trustees are not required to risk their funds
or incur personal liability if there is reasonable ground
for believing that repayment is not reasonably assured.
The Company must file an annual certificate with the
Mortgage Corporate Trustee as to compliance with the
provisions of the Mortgage and as to the absence of default
with respect to any of its covenants contained in the
Mortgage.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities: (i) through
one or more underwriters or dealers, (ii) directly to one or
more purchasers, (iii) through one or more agents or (iv)
through a combination of any such methods of sale. The
applicable Prospectus Supplement with respect to the Offered
Securities shall set forth the applicable terms of the
offering of the Offered Securities, including the name or
names of any underwriters, dealers or agents, the purchase
price of such Offered Securities and the proceeds to the
Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions
allowed or reallowed or paid by any underwriters to dealers.
Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers by any
underwriters may be changed from time to time.
If underwriters are used in the sale of the Offered
Securities, such Offered Securities will be acquired by the
underwriters for their own account and may be resold from
time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. The
underwriters with respect to a particular underwritten
offering of Offered Securities will be named in the
applicable Prospectus Supplement relating to such offering
and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover
page of such Prospectus Supplement. In connection with the
sale of Offered Securities, the underwriters may receive
compensation from the Company or from purchasers in the form
of discounts, concessions or commissions. The underwriters
will be, and any dealers participating in the distribution
of the Offered Securities may be, deemed to be underwriters
within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"). The Company has agreed to indemnify
the underwriters against certain civil liabilities,
including liabilities under the Securities Act. The
underwriting agreement pursuant to which any Offered
Securities are to be sold will provide that the obligations
of the underwriters are subject to certain conditions
precedent and that the underwriters will be obligated to
purchase all of the Offered Securities if any are purchased;
provided that the agreement between the Company and the
underwriters providing for the sale of the Offered
Securities may provide that under certain circumstances
involving a default of one or more underwriters, less than
all of the Offered Securities may be purchased.
Offered Securities may be sold directly by the Company
or through agents designated by the Company from time to
time. The applicable Prospectus Supplement shall set forth
the name of any agent involved in the offer or sale of the
Offered Securities in respect of which such Prospectus
Supplement is delivered as well as any commissions payable
by the Company to such agent. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on
a best efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus
Supplement, the Company will authorize agents, underwriters
or dealers to solicit offers by certain specified
institutions to purchase Offered Securities from the Company
at the public offering price set forth in such Prospectus
Supplement pursuant to delayed delivery contracts providing
for payment and delivery on a specified date in the future.
Such contracts will be subject to those conditions set forth
in the applicable Prospectus Supplement, and such Prospectus
Supplement will set forth the commission payable for
solicitation of such contracts.
EXPERTS AND LEGALITY
The Company's balance sheet as of December 31, 1994 and
the statements of income, retained earnings, and cash flows
and the related financial statement schedule for the year
ended December 31, 1994, incorporated by reference in this
Prospectus, have been incorporated by reference herein in
reliance on the reports of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm
as experts in accounting and auditing.
The financial statements and the related financial
statement schedule as of December 31, 1993 and for each of
the two years in the period ended December 31, 1993,
incorporated in this Prospectus by reference to the 1994 10-
K, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports dated February 11, 1994
(which reports expressed an unqualified opinion and included
an explanatory paragraph relating to the Company's change in
method of accounting for income taxes) also incorporated by
reference herein, and have been so included in reliance upon
the reports of such firm given upon their authority as
experts in accounting and auditing.
The legality of the Debt Securities will be passed upon
for the Company by Reid & Priest LLP, New York, New York and
Friday, Eldredge & Clark, Little Rock, Arkansas and for any
underwriters, dealers or agents by Winthrop, Stimson, Putnam
& Roberts, New York, New York. However, all legal matters
pertaining to the organization of the Company, titles to
property, franchises and the lien of the Indenture and the
Mortgage and all matters pertaining to Arkansas, Missouri
and Tennessee law will be passed upon only by Friday,
Eldredge & Clark.
The statements as to matters of law and legal
conclusions made under "DESCRIPTION OF DEBT SECURITIES" and
"DESCRIPTION OF THE MORTGAGE" have been reviewed by Friday,
Eldredge & Clark, Little Rock, Arkansas and, except as to
"Security" under "DESCRIPTION OF DEBT SECURITIES" and
"DESCRIPTION OF THE MORTGAGE," by Reid & Priest LLP, New
York, New York, and are set forth herein in reliance upon
the opinions of said firms, respectively, and upon their
authority as experts.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Each
Initial Additional
Sale Sale
Filing Fees_Securities and Exchange
Commission:
Registration Statement $103,448 $
-
*Rating Agencies' fees 25,000 25,000
*Trustees' fees 7,000 3,000
*Fees of Company's Counsel:
Reid & Priest LLP 60,000 25,000
Friday, Eldredge & Clark 20,000 5,000
*Fees of Entergy Services, Inc. 35,000 25,000
*Accounting fees 18,000 12,000
*Printing and engraving costs 30,000 20,000
*Miscellaneous expenses (including Blue- 20,000 15,000
Sky expenses)
*Total Expenses $318,448 $130,000
___________________
* Estimated
Item 15. Indemnification of Directors and Officers.
The Company has insurance covering its expenditures
which might arise in connection with its lawful
indemnification of its directors and officers for certain of
their liabilities and expenses. Directors and officers of
the Company also have insurance which insures them against
certain other liabilities and expenses. The corporation
laws of Arkansas permit indemnification of directors and
officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933, as amended
(the "Securities Act"), and under the Company's Restated and
Amended Articles of Incorporation, its officers and
directors may generally be indemnified to the full extent of
such laws.
Item 16. List of Exhibits.*
1(a) - Form of Underwriting Agreement for the Debt
Securities.
4(a) - Form of Indenture for Debt Securities, to be
dated as of March 1, 1996 between the Company
and Chemical Bank, as Trustee.
4(b) - Form of Debt Security.
4(c) - Form of Officer's Certificate to be used in
designating and authorizing the terms and
conditions of any series of Debt Securities
offered hereunder.
**4(d) - Mortgage and Deed of Trust, as amended by
fifty-two Supplemental Indentures (7(d) in 2-
5463 (Mortgage); 7(b) in 2-7121 (First); 7(c)
in 2-7605 (Second); 7(d) in 2-8100 (Third);
7(a)-4 in 2-8482 (Fourth); 7(a)-5 in 2-9149
(Fifth); 4(a)-6 in 2-9789 (Sixth); 4(a)-7 in 2-
10261 (Seventh); 4(a)-8 in 2-11043 (Eighth);
2(b)-9 in 2-11468 (Ninth); 2(b)-10 in 2-15767
(Tenth); D in 70-3952 (Eleventh); D in 70-4099
(Twelfth); 4(d) in 2-23185 (Thirteenth); 2(c)
in 2-24414 (Fourteenth); 2(c) in 2-25913
(Fifteenth); 2(c) in 2-28869 (Sixteenth); 2(d)
in 2-28869 (Seventeenth); 2(c) in 2-35107
(Eighteenth); 2(d) in 2-36646 (Nineteenth);
2(c) in 2-39253 (Twentieth); 2(c) in 2-41080
(Twenty-first); C-1 to Rule 24 Certificate in
70-5151 (Twenty-second); C-1 to Rule 24
Certificate in 70-5257 (Twenty-third); C to
Rule 24 Certificate in 70-5343 (Twenty-
fourth); C-1 to Rule 24 Certificate in 70-5404
(Twenty-fifth); C to Rule 24 Certificate in 70-
5502 (Twenty-sixth); C-1 to Rule 24
Certificate in 70-5556 (Twenty-seventh); C-1
to Rule 24 Certificate in 70-5693 (Twenty-
eighth); C-1 to Rule 24 Certificate in 70-6078
(Twenty-ninth); C-1 to Rule 24 Certificate in
70-6174 (Thirtieth); C-1 to Rule 24
Certificate in 70-6246 (Thirty-first); C-1 to
Rule 24 Certificate in 70-6498 (Thirty-
second); A-4b-2 to Rule 24 Certificate in 70-
6326 (Thirty-third); C-1 to Rule 24
Certificate in 70-6607 (Thirty-fourth); C-1 to
Rule 24 Certificate in 70-6650 (Thirty-fifth);
C-1 to Rule 24 Certificate, dated December 1,
1982, in 70-6774 (Thirty-sixth); C-1 to Rule
24 Certificate, dated February 17, 1983, in 70-
6774 (Thirty-seventh); A-2(a) to Rule 24
Certificate, dated December 5, 1984, in 70-
6858 (Thirty-eighth); A-3(a) to Rule 24
Certificate in 70-7127 (Thirty-ninth); A-7 to
Rule 24 Certificate in 70-7068 (Fortieth); A-
8(b) to Rule 24 Certificate dated July 6, 1989
in 70-7346 (Forty-first); A-8(c) to Rule 24
Certificate, dated February 1, 1990 in 70-7346
(Forty-second); 4 to Form 10-Q for the quarter
ended September 30, 1990 in 1-10764 (Forty-
third); A-2(a) to Rule 24 Certificate, dated
November 30, 1990, in 70-7802 (Forty-fourth);
A-2(b) to Rule 24 Certificate, dated January
24, 1991, in 70-7802 (Forty-fifth); 4(d)(2) in
33-54298 (Forty-sixth); 4(c)(2) to Form 10-K
for the year ended December 31, 1992 in 1-
10764 (Forty-seventh); 4(b) to Form 10-Q for
the quarter ended June 30, 1993 in 1-10764
(Forty-eighth); 4(c) to Form 10-Q for the
quarter ended June 30, 1993 in 1-10764 (Forty-
ninth); 4(b) to Form 10-Q for the quarter
ended September 30, 1993 in 1-10764
(Fiftieth); 4(c) to Form 10-Q for the quarter
ended September 30, 1993 in 1-10764 (Fifty-
first); and 4(a) to Form 10-Q for the quarter
ended June 30, 1994 (Fifty-second)).
4(e) Form of Supplemental Indenture for the First
Mortgage Bonds.
5(a) - Opinion of Friday, Eldredge & Clark, general
counsel for the Company, as to the legality of
the securities being registered.
5(b) - Opinion of Reid & Priest LLP, New York counsel
for the Company, as to the legality of the
securities being registered.
**12 - Computations of Ratio of Earnings to Fixed
Charges (filed as Exhibit 12(a) to the
Company's Annual Report on Form 10-K for the
period ended December 31, 1994, Exhibit 99(a)
to the Company's Quarterly Report on Form 10-Q
for the period ended March 31, 1995, Exhibit
99(a) to the Company's Quarterly Report on
Form 10-Q for the period ended June 30, 1995,
and Exhibit 99(a) to the Company's Quarterly
Report on Form 10-Q for the period ended
September 30, 1995, each in File No. 1-10764).
23(a) - Consent of Friday, Eldredge & Clark (included
in Exhibit 5(a)).
23(b) - Consent of Reid & Priest LLP (included in
Exhibit 5(b)).
23(c) - Consent of Coopers & Lybrand L.L.P.
23(d) - Consent of Deloitte & Touche LLP.
24 - Power of Attorney (contained on the signature
page herein).
25 - Statement of Eligibility of Trustee on Form T-
1 under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of
Chemical Bank, Trustee.
______________
* Reference is made to a duplicate list of exhibits filed
as part of the Registration Statement, which list, in
accordance with Item 102 of Regulation S-T of the
Securities and Exchange Commission (the "Commission"),
immediately precedes the exhibits being physically
filed with the Registration Statement.
** Incorporated herein by reference as indicated.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii)
above do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability
under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference
in this registration statement shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(5) That, for purposes of determining any liability
under the Securities Act, the information omitted from the
form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b) (1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of
the time it was declared effective.
(6) That, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(7) To file an application for the purpose of
determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture
Act.
(8) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
Each director and/or officer of the registrant whose
signature appears below hereby appoints Gerald D. McInvale,
William J. Regan, Jr., Laurence M. Hamric and Denise C.
Redmann, and each of them severally, as his attorney-in-fact
to sign in his name and behalf, in any and all capacities
stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective
amendments, to this registration statement, and the
registrant hereby also appoints each such named person as
its attorney-in-fact with like authority to sign and file
any such amendments in its name and behalf.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that this
Registration Statement has been signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Little Rock, State of Arkansas, on the 9th day of January,
1996.
ARKANSAS POWER & LIGHT COMPANY
By /s/R. D. Keith
R. Drake Keith
President
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/Edwin Chairman of the January 9, 1996
Lupberger Board,
Edwin Lupberger Chief Executive
Officer and Director
(Principal Executive
Officer)
/s/Gerald D. Executive Vice January 9, 1996
McInvale President
Gerald D. McInvale Chief Financial
Officer,
and Director
(Principal Financial
Officer)
/s/Louis E. Vice President and January 9, 1996
Buck Chief Accounting
Louis E. Buck Officer
(Principal Accounting
Officer)
/s/Michael B. Director January 9, 1996
Bemis
Michael B. Bemis
/s/Jerry L. Director January 9, 1996
Maulden
Jerry L. Maulden
/s/Donald C. Director January 9, 1996
Hintz
Donald C. Hintz
/s/Jerry D. Director January 9, 1996
Jackson
Jerry D. Jackson
/s/R. D. Keith Director January 9, 1996
R. Drake Keith
Exhibit 1(a)
ARKANSAS POWER & LIGHT COMPANY
[$___________]
[____%] [_______________] due [_______ __, ____]
UNDERWRITING AGREEMENT
[__________ __, ____]
[Underwriters]
c/o [Representative]
[Address]
Ladies & Gentlemen:
The undersigned, Arkansas Power & Light Company, an
Arkansas corporation (the "Company"), proposes to issue and sell
severally to you, as underwriters (the "Underwriters," which
term, when the context permits shall also include any
underwriters substituted as hereinafter in Section 11 provided),
an aggregate of [$_____________] principal amount of the
Company's [_____%] [_________________] due [_______ __, ____]
(the "Securities"), 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 Securities set forth opposite the name of such
Underwriter in Schedule I attached hereto at [____%] of the
principal amount of the Securities [plus accrued interest thereon
from [_______ __, ____], to the Closing Date (as defined
herein)].
SECTION 2. Description of Securities. The Securities
shall be issued under and pursuant to an Indenture for Debt
Securities, dated as of [_______ __, ____] between the Company
and [_____________], as trustee (the "Trustee"), as supplemented
and as the same shall be further supplemented by the [______]
Supplemental Indenture, dated as of [_______ __, ____] (the
"Supplemental Indenture"). Said Indenture for Debt Securities,
as previously supplemented and as to be further supplemented by
the Supplemental Indenture, is hereinafter referred to as the
"Indenture". The Securities 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 or 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, and covenants and agrees with the several
Underwriters, that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of
[Arkansas][Louisiana] 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
[$___________] aggregate principal amount of the Company's
debt securities (including the Securities) 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 Securities. The prospectus
forming a part of such registration statement, at the time
such registration statement (or the most recent amendment
thereto filed prior to the time of effectiveness of this
Underwriting Agreement) became effective, including all
documents incorporated by reference therein at that time
pursuant to Item 12 of Form S-3, is hereinafter referred to
as the "Basic Prospectus". In the event that (i) the Basic
Prospectus shall have been amended, revised or supplemented
(but excluding any supplements to the Basic Prospectus
relating solely to debt securities other than the
Securities) prior to the time of effectiveness of this
Underwriting Agreement, including without limitation by any
preliminary prospectus supplement relating to the
Securities, or (ii) the Company shall have filed documents
pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after
the time such registration statement became effective and
prior to the time of effectiveness of this Underwriting
Agreement (but excluding documents incorporated therein by
reference relating solely to debt securities other than the
Securities), which are deemed to be incorporated by
reference in the Basic Prospectus pursuant to Item 12 of
Form S-3, the term "Basic Prospectus" as used herein shall
also mean such prospectus as so amended, revised or
supplemented and reflecting such incorporation by reference.
Such 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 Securities
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 Securities), 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
Securities) 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 (or
the latest post-effective amendment thereto) became
effective, and the Indenture, at such time, fully complied,
and the Prospectus, when delivered to the Underwriters for
their use in making confirmations of sales of the Securities
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 did 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 Securities), 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 necessary in order to make the statements therein not
misleading. At the time the Prospectus is delivered to the
Underwriters for their use in making confirmations of sales
of the Securities and at the Closing Date, 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 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 necessary in order 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 the Underwriters or on the behalf of any Underwriter
specifically for use in connection with the preparation of
the Registration Statement or the Prospectus, as they may be
then amended or supplemented, or to any statements in or
omissions from the statement of eligibility of the Trustee,
as it may then be amended, under the Trust Indenture Act.
(e) The issuance and sale of the Securities 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, 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 Securities as soon after the
effectiveness of this Underwriting Agreement as in their judgment
is advisable. The Company is further advised by the Underwriters
that the Securities 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
Securities and payment of the purchase price therefor by [check
or checks payable in New York Clearing House funds] [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 [Representative], or as may be
established in accordance with Section 11 hereof. The hour and
date of such delivery and payment are herein called the "Closing
Date".
The Securities 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
Securities shall be in the form of one or more typewritten bonds
in fully registered form, in the aggregate principal amount of
the Securities, and registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Company agrees to
make the Securities 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 Securities, as originally filed
with the Commission, and of all amendments or supplements
thereto relating to the Securities, 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
[Representative] 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
Securities, 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 a material fact 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 time of effectiveness of this Underwriting
Agreement, and such expenses shall be borne by the Under-
writers 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
Securities 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 and any post-effective amendments thereto, (ii)
the printing, issuance and delivery of the Securities and
the preparation, execution, printing and recordation of [the
Indenture and] the Supplemental Indenture, (iii) legal fees
and expenses relating to the qualification of the Securities
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 (and
any supplemental) blue sky survey, any preliminary
prospectus supplement relating to the Securities 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 Securities, (vi) fees (if any) of the National
Association of Securities Dealers, Inc. (the "NASD") in
connection with its review of the terms of the offering [,
and (vii) the cost to the Underwriters of providing
immediately available funds on the Closing Date as provided
in Section 5 hereof]. Except as provided above, the Company
shall not be required to pay any expenses of the
Underwriters, except that, if this Underwriting Agreement
shall be terminated in accordance with the provisions of
Section 7, 8 or 12 hereof, the Company will reimburse the
Underwriters for (i) the reasonable fees and expenses of
Counsel for the Underwriters, whose fees and expenses the
Underwriters agree to pay in any other event, and (ii)
reasonable out-of-pocket expenses, in an amount not
exceeding in the aggregate $15,000, incurred in
contemplation of the performance of this Underwriting
Agreement. The Company shall not in any event be liable to
the Underwriters for damages on account of loss of
anticipated profits.
(h) The Company will not sell any additional long-term debt
securities 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 Indenture
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 counsel for
the Company, 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
Securities 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(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
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
Securities, 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 Securities
on the terms set forth in, or contemplated by, this
Underwriting Agreement.]
(d) At the Closing Date, the Underwriters shall have
received from [_________________________] and Reid & Priest
LLP, opinions, dated the Closing Date, substantially in the
forms set forth in Exhibits A and B 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 Securities, 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 C 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 the Underwriters to the effect that
(i) they are independent certified public accountants with
respect to the Company within the meaning of the Securities
Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the financial statements
and financial statement schedules examined by them and
included or incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Exchange Act and the applicable published rules and
regulations thereunder; (iii) on the basis of performing the
procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the latest unaudited financial statements,
if any, included or incorporated by reference in the
Prospectus, a reading of the latest available interim
unaudited financial statements of the Company, the minutes
of the meetings of the Board of Directors of the Company,
the Executive Committee thereof, if any, and the stockholder
of the Company, since December 31, [____] 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 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 (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 D 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 then 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 then be amended
or supplemented.
(h) At the Closing Date, the Underwriters shall have
received duly executed counterparts of [the Indenture and]
the Supplemental Indenture.
(i) At the Closing Date, the Underwriters shall have
received from the Accountants a letter, dated the Closing
Date, confirming, as of a date not more than five days prior
to the Closing Date, the statements contained in the letter
delivered pursuant to Section 7(f) hereof.
(j) On or prior to the effective date of this Underwriting
Agreement, the Underwriters shall have received from
Deloitte & Touche LLP a letter, dated the date hereof and
addressed to the Underwriters, with respect to certain
financial information contained in the Prospectus, as
mutually agreed to by the Underwriters and the Company.
(k) 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 Indenture shall have occurred.
(l) Prior to the Closing Date, the [Representative] shall
have received from the Company evidence reasonably
satisfactory to the [Representative] that the Securities
have received ratings of ______ or better from Moody's
Investors Service, Inc. and _____ or better from Standard &
Poor's Ratings Group.
(m) 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 any of the
Company's outstanding debt securities in any respect.
(n) Between the date hereof and the Closing Date, no 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 Securities.
(o) All legal matters in connection with the issuance and
sale of the Securities shall be satisfactory in form and
substance to Counsel for the Underwriters.
(p) 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 7
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]
[orders of the Arkansas and Tennessee Public Service
Commissions] authorizing the issuance and sale of the
Securities 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
8 shall not have been fulfilled, this Underwriting Agreement may
be terminated by the Company upon notice thereof to
[Representative]. 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
required to be stated therein or necessary in order 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 each may be amended or
supplemented, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any Underwriter specifically for use in connection
with the preparation of 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 of the Trustee under the
Trust Indenture Act; 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 Securities 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
Securities 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 on a timely basis by the Company to
the Underwriters 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 Securities 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 (if it
is made available to the Underwriters prior to settlement of such
sale).
(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 and Section 20 of the Exchange 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 required to be stated therein or
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 necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, in each case, if, but only if,
such statement or omission was made in reliance upon and in
conformity with information furnished herein or in writing to the
Company by any 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(b)) or the Prospectus, or any amendment or supplement
thereto.
(c) In case any action shall be brought, based upon
the Registration Statement, the Basic Prospectus or the
Prospectus (including amendments or supplements thereto), against
any party in respect of which indemnity may be sought pursuant to
any of the preceding paragraphs, such party (hereinafter called
the indemnified party) shall promptly notify the party or parties
against whom indemnity shall be sought hereunder (hereinafter
called the indemnifying party) in writing, and the indemnifying
party shall have the right to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with
any other indemnifying party) the defense thereof, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses. If the
indemnifying party shall elect not to assume the defense of any
such action, the indemnifying party shall reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by such indemnified party. Such indemnified
party shall have the right to employ separate counsel in any such
action in which the defense has been assumed by the indemnifying
party and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has been
specifically authorized by the indemnifying party or (ii) the
named parties to any such action (including any impleaded
parties) include each of such indemnified party and the
indemnifying party and such indemnified party shall have been
advised by such counsel that a conflict of interest between the
indemnifying party and such indemnified party may arise and for
this reason it is not desirable for the same counsel to represent
both the indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm
of attorneys for such indemnified party (plus any local counsel
retained by such indemnified party in its reasonable judgment).
The indemnified party shall be reimbursed for all such fees and
expenses as they are incurred. The indemnifying party shall not
be liable for any settlement of any such action effected without
its consent, but if any such action is settled with the consent
of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity has or could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action,
suit or proceeding.
(d) If the indemnification provided for under
subsections (a), (b) or (c) in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Securities 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 Securities
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 Securities 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 any
Underwriter shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Securities which it
has agreed to purchase and pay for hereunder, and the aggregate
principal amount of Securities which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of the Securities, the
other Underwriters shall be obligated to purchase the Securities
which such defaulting Underwriter agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Securities 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
Securities without written consent of such Underwriter. If any
Underwriter shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of the Securities, the Company shall have the
right (a) to require the non-defaulting Underwriters to purchase
and pay for the respective principal amount of Securities that it
had severally agreed to purchase hereunder, and, in addition, the
principal amount of Securities 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
Securities that such non-defaulting Underwriters have otherwise
agreed to purchase hereunder, and/or (b) to procure one or more
others, members of the NASD (or, if not members of the NASD, who
are foreign banks, dealers or institutions not registered under
the Exchange Act and who agree in making sales to comply with the
NASD's Rules of Fair Practice), to purchase, upon the terms
herein set forth, the principal amount of Securities that such
defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a). In the event the
Company shall exercise its rights under clause (a) and/or (b)
above, the Company shall give written notice thereof to the
Underwriters within 24 hours (excluding any Saturday, Sunday, or
legal holiday) of the time when the Company learns of the failure
or refusal of any Underwriter to purchase and pay for its
respective principal amount of Securities, 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 Underwriters, 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 [Representative] 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 [Representative], 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
[Representative], impracticable to market the Securities. This
Underwriting Agreement shall also be subject to termination, upon
notice by [Representative] as provided above, if, in the judgment
of [Representative], 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 Securities or to the activity of the Underwriters or to
the terms of any series of debt securities not included in the
Securities) filed or issued after the effectiveness of this
Underwriting Agreement by the Company shall have materially
impaired the marketability of the Securities. 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 shall become effective when a
fully executed copy thereof is delivered to the Company and to
[Representative]. 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 Securities from the
Underwriters.
SECTION 14. Notices. All communications hereunder
shall be in writing and, if to the Underwriters, shall be mailed
or delivered to [Representative] at the address set forth at the
beginning of this Underwriting Agreement to the attention of its
General Counsel or, if to the Company, shall be mailed or
delivered to it at [_________________], Attention: Secretary, or,
if to Entergy Services, Inc., shall be mailed or delivered to it
at 639 Loyola Avenue, New Orleans, Arkansas 70113, Attention:
Treasurer.
Very truly yours,
By:
Name:
Title:
Accepted as of the date first above written:
[UNDERWRITERS]
By: [REPRESENTATIVE]
By:
Name:
Title:
<PAGE>
SCHEDULE I
[___________________]
[____%] [_____________] due [_________ __, ____]
Name Amount
Total $
<PAGE>
EXHIBIT A
[Letterhead of _______________]
[______ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
[I am] [We are] counsel for [________________________]
(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 [____%] [___________________]
due [________ __, ____] (the "Securities"), issued pursuant to
the Company's Indenture for Debt Securities, dated as of [______
__, ____], as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the [______] Supplemental Indenture (the "Supplemental
Indenture") dated as of [________ __, ____] (the Indenture for
Debt Securities as so amended and supplemented being hereinafter
referred to as the "Indenture"). This opinion is rendered to you
at the request of the Company.
[I am] [We are] familiar with the organization of the
Company, the [charter] 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 Securities. [I have] [We have] participated in the
preparation of or have examined and are familiar with (a) the
Indenture; (b) the Underwriting Agreement; (c) the Registration
Statement and the Prospectus filed under the Securities Act; and
(d) the proceedings before [the Commission under the 1935 Act]
[the Arkansas and Tennessee Public Service Commissions] relating
to the issuance and sale of the Securities by the Company and the
execution and delivery by the Company of the Indenture and the
Underwriting Agreement.
[I have] [We have] examined the orders of the
Commission (or appropriate evidence thereof) relating to the
effectiveness of the Registration Statement and the qualification
of the Indenture under the Trust Indenture Act. [I have] [We
have] also examined such other documents and satisfied ourselves
as to such other matters as [I have] [we have] deemed necessary
in order to render this opinion. In such examination, [I have]
[we have] assumed the genuineness of all signatures, the
authenticity of all documents submitted to [me] [us] as
originals, and the conformity to the originals of the documents
submitted to [me] [us] as certified or photostatic copies. [I
have] [We have] not examined the Securities, except a specimen
thereof, and [I have] [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.
Upon the basis of [my] [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, [I am] [we are] of
the opinion that:
(1) The Company is a corporation duly organized and validly
existing under the laws of the State of
[Arkansas][Louisiana].
(2) The Company is duly authorized by its [charter],
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 State[s] of [Arkansas, Missouri and
Tennessee][Louisiana].
(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 Indenture (except properties released under the
terms of the Indenture), subject only to Excepted
Encumbrances as defined in the Indenture and to minor
defects and encumbrances customarily found in properties of
like size and character that do not materially impair the
use of such properties by the Company. The description of
such properties set forth in the Indenture is adequate to
constitute the Indenture as a lien thereon; [subject to
paragraph (4) hereof], the Indenture, subject only to such
minor defects and Excepted Encumbrances, constitutes a valid
and direct lien upon said properties, which include
substantially all of the permanent physical properties and
franchises of the Company (other than those expressly
excepted). 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
Indenture, subject, however, to such 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) It will be necessary to record the Supplemental
Indenture in [_____ Counties in Arkansas][Orleans and St.
Bernard Parishes in Louisiana] and to file with the
[Recorder of Mortgages for the Parish of Orleans, Louisiana,
a Louisiana Form UCC-3 amending UCC File No. [___________]]
to include the Supplemental Indenture before the liens
created by the Supplemental Indenture become effective as to
and enforceable against third parties. However, all
permanent physical properties and franchises of the Company
(other than those expressly excepted in the Indenture)
presently owned by the Company are subject to the lien of
the Indenture, subject to minor defects and Excepted
Encumbrances of the character referred to in paragraph (3)
hereof.
(5) 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 (i) as the same may be limited by the laws of
the State[s] of [Arkansas, Missouri and
Tennessee][Louisiana], 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 applicable 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 Securities are legal, valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by applicable 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 Indenture.
(7) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of
Debt Securities]" and "[Description of the [Offered] Debt
Securities]," respectively, 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
Indenture), 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 [I] [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, upon which [I] [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
[my] [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.
(10) Appropriate orders have been issued by [the Commission
under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of
the Securities and the execution, delivery and performance
by the Company of the Indenture and the Underwriting
Agreement; to the best of [my] [our] knowledge, said orders
are 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 of the Securities by the Company 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 Securities or
under the Indenture and the Underwriting Agreement.
(11) The issuance and sale by the Company of the Securities
and the execution, delivery and performance by the Company
of the Underwriting Agreement and the Indenture (a) will not
violate any provision of the Company's [charter] 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 Indenture) any of
the assets of the Company pursuant to the provisions of, any
mortgage, indenture, contract, agreement or other
undertaking known to [me] [us] (having made due inquiry with
respect thereto) to which the Company is a party or which
purports to be binding upon the Company or upon any of its
assets, and (c) will not violate any provision of any law or
regulation applicable to the Company or, to the best of [my]
[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).
[In passing upon the forms of 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 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 Registration Statement and
the Prospectus, [I] [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 included or incorporated by reference in the
Registration Statement. [My] [Our] examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to [me] [us] any information which gives [me] [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. [I] [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 parts of the
Registration Statement that constitute the statement of
eligibility of the Trustee or as to the information contained in
the Prospectus Supplement under the caption "[Book-Entry
Disclosure]".
[We have examined the portions of the information
contained in the Registration Statement that are stated therein
to have been made on our authority, and we believe such
information to be correct.] [I] [We] have examined the opinions
of even date herewith rendered to you by Reid & Priest LLP and
Winthrop, Stimson, Putnam & Roberts, and concur in the
conclusions expressed therein insofar as they involve questions
of [___________] law.
[I] [We] are members of the [___________] Bar and do
not hold [myself] [ourselves] out as experts on the laws of any
other state. As to all matters of New York law, [I] [we] have
relied, with your approval, upon the opinion of even date
herewith addressed to you by 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, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Securities, and it may
not be relied upon in any manner by any other person or for any
other purpose, without [my] [our] prior written consent, except
that Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts
may rely on this opinion as to all matters of [___________] law
in rendering their opinions required to be delivered under the
Underwriting Agreement.
Very truly yours,
[________________]
<PAGE>
EXHIBIT B
[Letterhead of Reid & Priest LLP]
[____________ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
With reference to 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 [____%] [_________________] due
[________ __, ____] (the "Securities"), issued under the
Company's Indenture for Debt Securities, dated as of [________
__, ____], as heretofore amended and supplemented by all
indentures amendatory thereof and supplemental thereto, including
the [_____] Supplemental Indenture dated as of [_______ __, ____]
(the Indenture for Debt Securities as so supplemented being
hereinafter called the "Indenture"), 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 (a) the
Company's [charter] and By-Laws, each as amended; (b) the
Indenture; (c) the Registration Statement and the Prospectus
filed under the Securities Act; (d) the Underwriting Agreement;
and (e) [the proceedings before the Commission under the 1935 Act
relating to the issuance and sale of the Securities by the
Company and the execution and delivery by the Company of the
Indenture and the Underwriting Agreement]. 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 Securities. 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
Securities, 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.
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 a corporation duly organized and
validly existing under the laws of the State of
[Arkansas][Louisiana], has all corporate power and authority
necessary to conduct its business as the same is described in the
Prospectus.
(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 the same may be
limited by applicable 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.
(3) The Securities are legal, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as limited by applicable 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).
(4) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of Debt
Securities]" and "[Description of [Offered] Debt Securities],"
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.
(5) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(6) The issuance and sale by the Company of the
Securities and the execution, delivery and performance by the
Company of the Underwriting Agreement and the Indenture (a) will
not violate any provision of the Company's [charter] 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 Indenture) any of the
assets of the Company pursuant to the provisions of, any
mortgage, indenture, lease or other agreement governing
indebtedness of the Company known to us 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
federal or New York law or regulation 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 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, 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) Appropriate orders have been issued by [the
Commission under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of the
Securities and the execution, delivery and performance by the
Company of the Indenture and the Underwriting Agreement; to the
best of our knowledge, said orders are 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
of the Securities by the Company 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 Securities 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,
completeness and fairness of the statements made by the Company
and information included or incorporated by reference in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements relate
to us and as set forth in paragraph (4) above. In connection
with the preparation by the Company of the Registration Statement
and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, with other counsel for
the Company, and with the independent certified public
accountants of the Company who examined certain of the financial
statements included or 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 Supplement under the
caption "[Book-Entry Disclosure]".
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 [___________] law, we have relied upon the opinion
of even date herewith addressed to you by [____________________],
of [___________, ______________], counsel for the Company. We
have not examined into and are not passing upon matters relating
to titles to property, franchises or the lien of the Indenture.
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, it is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Securities, and it may
not be relied upon in any manner by any other person or for any
other purpose, without our prior written consent, except that
[_________________], 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 C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[_______ __, ____]
[Underwriters]
c/o [Representative
Address]
Ladies and Gentlemen:
We have acted as counsel for you as the several
underwriters of [$____________] in aggregate principal amount of
the [____%] [____________________] due [_____ __, ____] (the
"Securities"), issued by [________________________] (the
"Company") under the Company's Indenture for Debt Securities,
dated as of [______ __, ____], as heretofore amended and
supplemented by all indentures amendatory thereof and
supplemental thereto, including the [_____] Supplemental
Indenture dated as of [______ __, ____] (said Indenture for Debt
Securities as so amended and supplemented being hereinafter
referred to as the "Indenture"), pursuant to the agreement
between you and the Company effective [_________ __, ____] (the
"Underwriting Agreement").
We are members of the 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
[_________________], of [_____________, ___________], counsel for
the Company, as to the matters covered in such opinion relating
to [__________] law. We have reviewed said opinion and believe
that it is 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 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 Securities, except a specimen thereof, and
we have relied upon a certificate of the Trustee 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 Indenture. 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 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 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 Securities 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).
(3) The statements made in the Prospectus and the
Prospectus Supplement under the captions "[Description of Debt
Securities]" and "[Description of Offered Debt Securities],"
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 Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(5) Appropriate Orders have been issued by [the
Commission under the 1935 Act] [the Arkansas and Tennessee Public
Service Commissions] authorizing the issuance and sale of the
Securities and to the best of our knowledge, such orders are in
full force and effect; and 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 of the Securities 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 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, 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.
In passing upon the form of the Registration Statement
and the form of 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 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 Registration Statement and
the Prospectus, we have had discussions with certain officers,
employees and representatives of the Company and Entergy Services
Inc., with counsel for the Company and with your representatives.
Our review of the Registration Statement and the Prospectus and
our discussions did not disclose to us any information that 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 Supplement
under the caption "[Book-Entry Disclosure]".
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 D
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
EXHIBIT 4(A)
_________________________________________
ARKANSAS POWER & LIGHT COMPANY
TO
CHEMICAL BANK
AS TRUSTEE
_________
Indenture
(For Debt Securities)
Dated as of March 1, 1996
_________________________________________
<PAGE>
THIS INDENTURE, dated as of ___________, 1996, between
ARKANSAS POWER & LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Arkansas (herein called
the "Company"), having its principal office at 425 West Capitol,
Little Rock, Arkansas 72201, and CHEMICAL BANK, a New York
corporation, having its principal corporate trust office at 450
West 33rd Street, New York, New York 10001, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv
ery of this Indenture to provide for the issuance from time to
time of 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 or Article Fifteen of this Indenture.
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That and in consideration of the premises and the
purchase of the Securities by the Holders thereof, and in order
to secure the payment of the principal of and premium, if any,
and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants therein and
herein contained and to declare the terms and conditions on which
such Securities are secured, the Company hereby grants, bargains,
sells, conveys, assigns, transfers, mortgages, pledges, sets over
and confirms to the Trustee, and grants to the Trustee a security
interest in, the following (subject, however, to the terms and
conditions set forth in this Indenture):
Granting Clause
All right, title and interest of the Company, as
of the date of the execution and delivery of this
Indenture, in and to all electric utility plant
property owned by the Company, real, personal and
mixed, located in the State of Arkansas or any other
State in the United States of America which property is
more specifically described or referred to in Exhibit A
attached hereto and incorporated herein by this
reference together with all property similar in
character and kind to the Mortgaged Property hereafter
constructed, made or acquired by the Company.
TO HAVE AND TO HOLD all such property, real, personal
and mixed, unto the Trustee, its successors in trust and their
assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of
the execution and delivery of this Indenture (including, but not
limited to, the Liens of the First Mortgage Bond Indenture and
(b) such liens as may be granted upon the Mortgaged Property
hereinafter; and
SUBJECT, FURTHER, to the condition that, with respect
to any property which is now or hereafter becomes subject to the
Lien of the First Mortgage Bond Indenture, the Lien of this
Indenture shall at all times be junior, subject and subordinate
to the Lien of the First Mortgage Bond Indenture;
IN TRUST, NEVERTHELESS, for the equal and ratable
benefit and security of the Holders from time to time of all
Outstanding Securities without any priority of any such Security
over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest
of the Trustee in and to the Mortgaged Property shall cease,
terminate and become void in accordance with, and subject to the
conditions set forth in, Article Seven or Article Fifteen hereof;
otherwise this Indenture, and the estate and rights hereby
granted, shall be and remain in full force and effect; and
IT IS HEREBY COVENANTED AND AGREED by and between the
Company and the Trustee that all the Securities are to be
authenticated and delivered, and that the Mortgaged Property is
to be held, subject to the further covenants, conditions and
trusts hereinafter set forth, and the Company hereby covenants
and agrees to and with the Trustee, for the equal and ratable
benefit of all Holders of the Securities, 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 or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section 701
(whether or not the Company's indebtedness in respect
thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to Sec
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of
the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each
such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and
deemed not to be 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 Secu
rities 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 it is established to the
reasonable satisfaction of the Trustee that the
pledgee, and not the Company, any such other obligor of
Affiliate of either thereof, has the 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 no event shall
any Security which shall have been delivered to
evidence or secure, in whole or in part, the Company's
obligations in respect of other indebtedness be deemed
to be owned by the Company if the principal of such
Security is payable, whether at Stated Maturity or upon
mandatory redemption, at the same time as the principal
of such other indebtedness is payable, whether at
Stated Maturity or upon mandatory redemption or
acceleration, but only to the extent of such portion of
the principal amount of such Security as does not
exceed the principal amount of such other indebtedness;
and
(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 from
time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee,
all as contemplated in Section 301 and clause (b) of Section 303.
"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" means any bonds, notes and other evidences
of indebtedness 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).
"Successor Corporation" has the meaning set forth in
Section 1101.
"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 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 speci
fically 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) The Company may, at its option, by Company Order,
fix in advance a record date for the determination of
Holders entitled to give any request, demand, authorization,
direction, notice, consent, waiver or other Act solicited by
the Company, but the Company shall have no obligation to do
so. In addition, the Trustee may, at its option, fix in
advance a record date for the determination of Holders
entitled to join in the giving or making of any Notice of
Default, any declaration of acceleration referred to in
Section 802, any request to institute proceedings referred
to in Section 807 and 812. If any such a record date is
fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act or such notice,
declaration, request or direction 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 the Holders for the purposes of determining (i) whether
Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such
Act (and for that purpose the Outstanding Securities shall
be computed as of the record date) and/or (ii) which Holders
may revoke any such Act (notwithstanding subsection (e) of
this Section).
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 the same shall be in writing and delivered
personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or
other direct written electronic means to such telephone number or
other electronic communications address as the parties hereto
shall from time to time designate, or transmitted by registered
mail, charges prepaid, to the applicable address set opposite
such party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention:
Telephone:
Telecopy:
If to the Company, to:
Arkansas Power & Light Company
425 West Capitol
Little Rock, Arkansas 72201
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 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 a supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section
301, the Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall
be produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series, there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
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,
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 coin or currency in which payment of any amount as to
which such election is made will 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 and 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.
So long as Article Fifteen is in effect, the Trustee
shall only authenticate and deliver Securities for original issue
pursuant to the provisions of Article Fifteen. When Article
Fifteen is no longer in effect, 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) 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).
(e) an Officer's Certificate to the effect that, to
the knowledge of the signer, no Event of Default has
occurred and is continuing; provided, however, that with
respect to Securities of a series subject to a Periodic
Offering, either (i) such an Officer's Certificate shall be
delivered at the time of the authentication and delivery of
each Security of such series or (ii) the Officer's
Certificate delivered at or prior to the time of the first
authentication and delivery of the Securities of such series
shall state that the statements therein shall be deemed to
be made at the time of each, or each subsequent,
authentication and delivery of Securities of such series.
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 an Authenticating 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 (a) 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, (b) the Company shall deliver such Security
to the Security Registrar for cancellation or shall cancel such
Security and deliver evidence of such cancellation to the
Trustee, in each case as provided in Section 309, and (c) the
Company, at its election, shall deliver to the Trustee 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, then, 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, but subject to compliance with the foregoing conditions,
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 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, 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 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.
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 sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than September 15 in each year, commencing
September 15, 1996, the Company shall deliver to the Trustee an
Officer's Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section
301 as being subject to waiver pursuant to this Section 607, if
before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section
604, 605 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall
extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be 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; 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 to the effect that
such obligations 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 other 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 Company Request, acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof 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 otherwise 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, 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, 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 and 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 such
instruments as the Company shall reasonably request to evidence
and acknowledge the 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, 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 the Securities of any series, means any one or more of the
following events which shall have occurred and be 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
(i) all overdue interest on all Securities
of such series;
(ii) 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;
(iii) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
Securities; and
(iv) 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.
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,
(i) 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
(ii) in the absence of bad faith on its
part, the Trustee may, with respect to Securities of
such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own wilful
misconduct, except that
(i) this subsection shall not be construed
to limit the effect of subsection (a) of this Section;
(ii) 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;
(iii) 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
(iv) 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 money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts 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:
(i) 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
(ii) 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
(iii) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series
as their names and addresses appear in the Security
Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent pro
vided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Nine.
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article Nine, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to 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 March 15 and September 15
in each year, commencing September 15, 1996, and at such other
times as the Trustee may request in writing, the Company shall
furnish or cause to be furnished to the Trustee information as to
the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than September 15 in each year, commencing
September 15, 1996, the Trustee shall transmit to the Holders and
the Commission a report, dated as of the next preceding July 15,
with respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the Company shall
file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act.
To the extent required by the Trust Indenture Act, the
Company shall file with the Trustee the following documents and
reports within 30 days after such documents or reports (or
consolidated documents or reports containing such documents or
reports) are filed with the Commission:
A. The Company's annual reports on Form 10-K;
B. The Company's quarterly reports on Form 10-Q;
C. The Company's current reports on Form 8-K; and
D. Any other documents filed with the Commission
which are filed with or incorporated by reference in
the foregoing reports, related to the Company, and have
not previously been filed with the Trustee.
To the extent that any of the foregoing documents or reports are
consolidated with similar documents or reports filed by an
affiliate, the Company may file such consolidated document or
report with the Trustee in lieu of the separate document or
report.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer, or lease,
its properties and assets substantially as an entirety to any
Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases (for a
term extending beyond the last Stated Maturity of the
Securities then Outstanding), 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 (such
corporation being hereinafter sometimes called the
"Successor Corporation"), 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 of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
Successor Corporation 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, the predecessor
Person shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder. All
Securities so executed by the Successor Corporation, and all
authenticated and delivered by the Trustee, shall in all respects
be entitled to the benefits provided by this Indenture equally
and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
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 establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(f) 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
(g) 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
(h) 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
(i) 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
(j) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained
herein, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered to the Company and the
Trustee, the Company and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent
of the Holders of each Outstanding Security of such series
or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof (except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived), without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b) and
1201(g).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of such series
or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance there
with, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental
Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder (except as provided in Section
104(g)), of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of such Securities and of
the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except
as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104
or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1000 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor cor
poration (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
Issuance of Securities; Possession, Use
and Release of Mortgaged Property
SECTION 1501. Definitions.
For all purposes under this Indenture, so long as this
Article remains in effect, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined
herein have the meanings assigned to them in this Article and
include the plural as well as singular. All terms used herein
without definition which are defined in the Uniform Commercial
Code as in effect in any jurisdiction in which any portion of the
Mortgaged Property is located shall have the meanings assigned to
them therein with respect to such portion of the Mortgaged
Property.
"Authorized Publication" means a newspaper or financial
journal of general circulation, printed in the English language
and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays; or, in the
alternative, shall mean such form of communication as may have
come into general use for the dissemination of information of
import similar to that of the information specified to be
published by the provisions hereof. In the event that successive
weekly publications in an Authorized Publication are required
hereunder they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same
or in different Authorized Publications. In case, by reason of
the suspension of publication of any Authorized Publication, or
by reason of any other cause, it shall be impractical without
unreasonable expense to make publication of any notice in an
Authorized Publication as required by this Indenture, then such
method of publication or notification as shall be made with the
approval of the Trustee shall be deemed the equivalent of the
required publication of such notice in an Authorized Publication.
"Book Value of the Mortgaged Property" has the meaning
specified in Section 1502.
"Charter" means the Amended and Restated Articles of
Incorporation of Arkansas Power & Light Company, dated November
9, 1988 as heretofore and hereinafter amended and restated.
"Collateral Balance" has the meaning specified in
Section 1502.
"Expert" means a Person which is an engineer, appraiser
or other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matters set forth in such certificate. For
purposes of this definition, (a) "engineer" means a Person
engaged in the engineering profession or otherwise qualified to
pass upon engineering matters (including, but not limited to, a
Person licensed as a professional engineer, whether or not then
engaged in the engineering profession) and (b) "appraiser" means
a Person engaged in the business of appraising property or
otherwise qualified to pass upon the Fair Value or fair market
value of property.
"Expert's Certificate" means a certificate signed by an
Authorized Officer and by an Expert (which Expert (a) shall be
selected either by the Board of Directors or by an Authorized
Officer, the execution of such certificate by such Authorized
Officer to be conclusive evidence of such selection, and (b)
except as otherwise required in Sections 1516 and 1520, may be an
employee or Affiliate of the Company duly authorized either by
the Board of Directors or by an Authorized Officer) and delivered
to the Trustee. The amount stated in any Expert's Certificate as
to the cost, Fair Value or fair market value of property shall be
conclusive and binding upon the Company, the Trustee and the
Holders of the Securities.
"Fair Value", with respect to property, means the fair
value of such property as may be determined by reference to (a)
the amount which would be likely to be obtained in an arm's-
length transaction with respect to such property between an
informed and willing buyer and an informed and willing seller,
under no compulsion, respectively, to buy or sell, (b) the amount
of investment with respect to such property which, together with
a reasonable return thereon, would be likely to be recovered
through ordinary business operations or otherwise, (c) the cost,
accumulated depreciation and replacement cost with respect to
such property and/or (d) any other relevant factors; provided,
however, that the Fair Value of property shall be determined
without deduction for any Liens on such property prior to the
Lien of this Indenture. Fair Value may be determined, without
physical inspection, by the use of accounting and engineering
records and other data maintained by the Company or otherwise
available to the Expert certifying the same.
"First Mortgage Bonds" means bonds or other obligations
now or hereafter issued and Outstanding under the First Mortgage
Bond Indenture.
"First Mortgage Bond Indenture" means the Mortgage and
Deed of Trust, dated as of October 1, 1944, from Arkansas Power &
Light Company to Guaranty Trust Company of New York and Henry A.
Theis (Bankers Trust Company and Stanley Burg, successors),
and, as to property in Missouri, Marvin A. Mueller (The Boatmen's
National Bank of St. Louis, secessor), as trustees, as heretofore
and hereafter amended and supplemented.
"First Mortgage Bondholder's Certificate" has the
meaning specified in Section 1511.
"Funded Cash" has the meaning specified in Section
1502.
"Independent", when applied to any Accountant or
Expert, means such a Person who (a) is in fact independent, (b)
does not have any direct material financial interest in the
Company or in any other obligor upon the Securities or in any
Affiliate of the Company or of such other obligor, (c) is not
connected with the Company or such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or
any person performing similar functions and (d) is approved by
the Trustee in the exercise of reasonable care.
"Lien" means any mortgage, deed of trust, pledge,
security interest, encumbrance, easement, lease, reservation,
restriction, servitude, charge or similar right and any other
lien of any kind, including, without limitation, any conditional
sale or other title retention agreement, any lease in the nature
thereof, and any defect, irregularity, exception or limitation in
record title.
"Mortgaged Property" means, as of any particular time,
all property which at such time is subject to the Lien of this
Indenture.
"Officer's Certificate of Collateral Balance" has the
meaning specified in Section 1502.
"Outstanding", where used with respect to First
Mortgage Bonds, has the meaning specified in the First Mortgage
Bond Indenture.
"Pledged Obligations" has the meaning specified in
Section 1516.
"Total Equity" has the meaning specified in Section
1502.
SECTION 1502. Funded Cash; Total Equity; Book Value of Mortgaged
Property
Officer's Certificate of Collateral Balance.
(a) "Funded Cash" means:
(i) cash, held by the Trustee hereunder, in
connection with the release of First Mortgage Bonds or
the release of Mortgaged Property pursuant to Sections
1514 and 1516, subject to the provisions of Section
1517;
(ii) any cash received by the Trustee from
the payment of the principal of First Mortgage Bonds
delivered to and held by the Trustee pursuant to
Section 1508; and
(iii) any cash, held by the Trustee
hereunder, in connection with the authentication and
delivery of Securities pursuant to Section 1505.
(b) "Book Value of the Mortgaged Property" means the
net book value of the Mortgaged Property as of the date of
determination appearing on the accounts of the Company kept
in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the
financial statements of the Company filed with the
Commission.
(c) "Total Equity" shall mean the sum of the capital
stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus,
paid-in surplus, capital surplus and the balance of current
profit and loss account not transferred to surplus) accounts
of the Company appearing on a balance sheet of the Company
prepared as of the date of determination in accordance with
generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
of the Company filed with the Commission.
(d) An "Officer's Certificate of Collateral Balance"
shall mean an Officer's Certificate,
(i) stating the amount of the Book Value of
Mortgaged Property determined as of a stated date,
which stated date shall be not more than six months
prior to the date of such Officer's Certificate;
(ii) stating the amount of Funded Cash held
by the Trustee as of the date of such Officer's
Certificate;
(iii) stating the principal amount of all
Outstanding First Mortgage Bonds (other than the First
Mortgage Bonds delivered to the Trustee under this
Indenture) as of the date of such Officer's
Certificate;
(iv) stating the principal amount of all
Outstanding Securities issued pursuant to this
Indenture immediately prior to the delivery of such
Officer's Certificate;
(v) stating the aggregate principal amount
of all outstanding debt securities (other than First
Mortgage Bonds) of the Company secured by a Lien on the
Mortgaged Property prior to the Lien of the Indenture
which are outstanding as of the date of such Officer's
Certificate; and
(vi) stating the aggregate Fair Value of all
Mortgaged Property released from the Lien of this
Indenture after the date stated in clause (1) above;
(vii) stating the "Collateral Balance" as
of the date of such Officer's Certificate, which shall
be (A) the amount stated in clause (i) above, plus (B)
the amount stated in clause (ii) above, less (C) the
sum of the amounts stated in clauses (iii) through (vi)
above.
SECTION 1503. Issuance of Securities on the Basis of Total
Equity.
(a) Securities of any one or more series may be
authenticated and delivered on the basis of Total Equity.
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of Total Equity
upon receipt by the Trustee of:
(i) the documents with respect to the
Securities of such series specified in Section 303,
including a Company Order requesting authentication and
delivery of such Securities;
(ii) an Officer's Certificate of Collateral
Balance dated as of the date of such Company Order
showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
(iii) an Officer's Certificate dated as
of the date of such Company Order;
(A) stating the amount of Total
Equity determined as of a stated date, which
stated date shall be not more than six months
prior to the date of such Company Order;
(B) stating the aggregate
principal amount of Securities previously
authenticated and delivered on the basis of Total
Equity (including any Securities previously
authenticated and delivered on the basis of First
Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of
Total Equity pursuant to Sections 1514 or 1517
hereof) which are Outstanding as of the date of
such Company Order;
(C) stating the aggregate
principal amount of Securities requested to be
authenticated and delivered on the basis of such
Total Equity by such Company Order; and
(D) stating that the sum of the
amounts stated in clauses (B) and (C) above does
not exceed three times the amount of Total Equity
stated in clause (A) above.
SECTION 1504. Issuance of Securities on the Basis of First
Mortgage Bonds
(a) Securities of any one or more series may be
authenticated and delivered on the basis of, and in an
aggregate principal amount not exceeding, the aggregate
principal amount of First Mortgage Bonds delivered to the
Trustee for such purpose.
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of the delivery to
the Trustee of First Mortgage Bonds which have not
theretofore been made the basis of the issuance of
Securities under any provisions of this Indenture upon
receipt by the Trustee of:
(i) First Mortgage Bonds (A) maturing (or
being subject to mandatory redemption) on such dates
and in such principal amounts that, at each Stated
Maturity of the Securities of such series (or the
Tranche thereof then to be authenticated and
delivered), there shall mature (or be redeemed) First
Mortgage Bonds equal in principal amount to the
Securities of such series or Tranche then to mature and
(B) containing, in addition to any mandatory redemption
provisions applicable to all First Mortgage Bonds
Outstanding under the First Mortgage Bond Indenture and
any mandatory redemption provisions contained therein
pursuant to clause (A) above, mandatory redemption
provisions correlative to the provisions, if any, for
the mandatory redemption (pursuant to a sinking fund or
otherwise) of the Securities of such series or Tranche
or for the redemption thereof at the option of the
Holder; it being expressly understood that such First
Mortgage Bonds (X) may, but need not, bear interest,
(Y) may, but need not, contain provisions for the
redemption thereof at the option of the Company, any
such redemption to be made at a redemption price or
prices not less than the principal amount thereof and
(Z) shall be held by the Trustee in accordance with
this Article Fifteen;
(ii) the documents with respect to the
Securities of such series specified in Section 303,
including the Company Order requesting the
authentication and delivery of such Securities;
(iii) an Officer's Certificate of
Collateral Balance dated as of the date of such Company
Order showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
(iv) an Opinion of Counsel to the effect
that:
(A) the form or forms of such
First Mortgage Bonds have been duly authorized by
the Company and have been established in
conformity with the provisions of the First
Mortgage Bond Indenture;
(B) the terms of such First
Mortgage Bonds have been duly authorized by the
Company and have been established in conformity
with the provisions of the First Mortgage Bond
Indenture; and
(C) (I) such First Mortgage Bonds
have been duly authenticated and delivered by the
trustee under the First Mortgage Bond Indenture
and (II) when the Securities to be authenticated
and delivered on the basis of the delivery to the
Trustee of such First Mortgage Bonds shall have
been authenticated and delivered by the Trustee in
accordance with this Indenture and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such First Mortgage Bonds will constitute
valid obligations of the Company, entitled to the
benefit of the Lien of the First Mortgage Bond
Indenture equally and ratably with all other First
Mortgage Bonds then Outstanding under the First
Mortgage Bond Indenture.
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 and delivery of such Securities
and that, in lieu of the opinions described in clauses
(B) and (C) above, Counsel may opine that:
(X) when the terms of such First
Mortgage Bonds shall have been established in
accordance with the instrument or instruments
creating the series of which such First Mortgage
Bonds are a part, such terms will have been duly
authorized by the Company and will have been
established in conformity with the provisions of
the First Mortgage Bond Indenture; and/or
(Y) (I) either (1) such First
Mortgage Bonds have been duly authenticated and
delivered by the trustee under the First Mortgage
Bond Indenture or (2) when such First Mortgage
Bonds shall have been authenticated and delivered
by the trustee under the First Mortgage Bond
Indenture in accordance with the instrument or
instruments creating the series of which such
First Mortgage Bonds are a part, such First
Mortgage Bonds will have been duly authenticated
and delivered under the First Mortgage Bond
Indenture and (II) when such First Mortgage Bonds
shall have been issued and delivered by the
Company in the manner and subject to any
conditions specified in such Opinion of Counsel,
and when the Securities to be authenticated and
delivered on the basis of the delivery to the
Trustee of such First Mortgage Bonds shall have
been authenticated and delivered by the Trustee in
accordance with this Indenture and issued and
delivered by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, such First Mortgage Bonds will constitute
valid obligations of the Company, entitled to the
benefit of the Lien of the First Mortgage Bond
Indenture equally and ratably with all other First
Mortgage Bonds then Outstanding under the First
Mortgage Bond Indenture.
SECTION 1505. Issuance of Securities on the Basis of Deposit of
Cash.
(a) Securities of any one or more series may be
authenticated and delivered on the basis of, and in an
aggregate principal amount not exceeding the amount of, any
deposit with the Trustee of cash for such purpose; and
(b) Securities of any series shall be authenticated
and delivered by the Trustee on the basis of the deposit of
cash when the Trustee shall have received, in addition to
such deposit,
(i) the documents with respect to the
Securities of such series specified in Section 303,
including a Company Order requesting authentication and
delivery of such Securities; and
(ii) an Officer's Certificate of Collateral
Balance dated as of the date of such Company Order
showing a Collateral Balance not less than the
aggregate principal amount of the Securities requested
to be authenticated and delivered by such Company
Order;
SECTION 1506. Additional Covenants
In addition to satisfying the covenants contemplated by
Article Six, the Company shall:
(a) maintain and preserve the Lien of the Indenture so
long as any Securities remain Outstanding, subject, however,
to the provisions of Sections 1513, 1514, 1515, 1516 and
1532; and
(b) pay all taxes and assessments and other
governmental charges lawfully levied or assessed upon the
Mortgaged Property, or upon any part thereof, or upon the
interest of the Trustee in the Mortgaged Property, before
the same shall become delinquent, and shall make reasonable
effort to observe and conform in all material respects to
all valid requirements of any Governmental Authority
relative to any of the Mortgaged Property and all covenants,
terms and conditions upon or under which any of the
Mortgaged Property is held; provided, however, that nothing
in this Section contained shall require the Company (i) to
observe or conform to any requirement of Governmental
Authority or to cause to be paid or discharged, or to pay
any such tax, assessment or governmental charge so long as
the validity thereof shall be contested in good faith and by
appropriate legal proceedings, (ii) to pay, discharge or
make provisions for any tax, assessment or other
governmental charge, the validity of which shall not be so
contested if adequate security for the payment of such tax,
assessment or other governmental charge and for any
penalties or interest which may reasonably be anticipated
from failure to pay the same shall be given to the Trustee
or (iii) to pay, discharge or make provisions for any Liens
existing on the Mortgaged Property at the date of execution
and delivery of this Indenture; and provided, further, that
nothing in this subsection shall prohibit the issuance or
other incurrence of additional indebtedness, or the
refunding of outstanding indebtedness, secured by any Lien
prior to the Lien hereof which is permitted under this
subsection to continue to exist; and
(c) cause this Indenture and all indentures and
instruments supplemental hereto (or notices, memoranda or
financing statements as may be recorded or filed to place
third parties on notice thereof) to be promptly recorded and
filed and re-recorded and re-filed in such manner and in
such places, as may be required by law in order fully to
preserve and protect the security of the Holders of the
Securities and all rights of the Trustee, and shall furnish
to the Trustee:
(i) promptly after the execution and
delivery of this Indenture and of each supplemental
indenture, an Opinion of Counsel either stating that in
the opinion of such counsel this Indenture or such
supplemental indenture (or any other instrument,
notice, memorandum or financing statement in connection
therewith) has been properly recorded and filed, so as
to make effective the Lien intended to be created
hereby or thereby, and reciting the details of such
action, or stating that in the opinion of such counsel
no such action is necessary to make such Lien
effective. The Company shall be deemed to be in
compliance with this subsection (i) if (A) the Opinion
of Counsel herein required to be delivered to the
Trustee shall state that this Indenture or such
supplemental indenture (or any other instrument,
notice, memorandum or financing statement in connection
therewith) has been received for record or filing in
each jurisdiction in which it is required to be
recorded or filed and that, in the opinion of such
counsel (if such is the case), such receipt for record
or filing makes effective the Lien intended to be
created by this Indenture or such supplemental
indenture, and (B) such opinion is delivered to the
Trustee within such time, following the date of the
execution and delivery of this Indenture or such
supplemental indenture, as shall be practicable having
due regard to the number and distance of the
jurisdictions in which this Indenture or such
supplemental indenture (or such other instrument,
notice, memorandum or financing statement in connection
therewith) is required to be recorded or filed; and
(ii) on or before September 15 of each year,
beginning September 15, 1996, an Opinion of Counsel
stating either (A) that in the opinion of such counsel
such action has been taken, since the date of the most
recent Opinion of Counsel furnished pursuant to this
subsection (ii) or the first Opinion of Counsel
furnished pursuant to subsection (i) of this
subsection, with respect to the recording, filing, re-
recording, and re-filing of this Indenture and of each
indenture supplemental to this Indenture (or any other
instrument, notice, memorandum or financing statement
in connection therewith), as is necessary to maintain
the effectiveness of the Lien hereof, and reciting the
details of such action, or (B) that in the opinion of
such counsel no such action is necessary to maintain
the effectiveness of such Lien.
The Company shall execute and deliver such supplemental
indenture or indentures and such further instruments and do such
further acts as may be necessary or proper to carry out the
purposes of this Indenture and to make subject to the Lien hereof
any property hereafter acquired, made or constructed and intended
to be subject to the Lien hereof, and to transfer to any new
trustee or trustees or co-trustee or co-trustees, the estate,
powers, instruments or funds held in trust hereunder.
SECTION 1507. Registration and Ownership of First Mortgage Bonds
Held by Trustee
First Mortgage Bonds delivered to the Trustee pursuant
to Section 1504 shall be registered in the name of the Trustee or
its nominee and shall be owned and held by the Trustee, subject
to the provisions of this Indenture, for the benefit of the
Holders of all Securities from time to time Outstanding, and the
Company shall have no interest therein. The Trustee shall be
entitled to exercise all rights of securityholders under the
First Mortgage Bond Indenture either in its discretion or as
otherwise provided in this Article Fifteen.
SECTION 1508. Payments on First Mortgage Bonds
(a) Any payment by the Company of principal of or
premium or interest on any First Mortgage Bonds delivered to
and held by the Trustee pursuant to Sections 1504 and 1507
shall be applied by the Trustee to the payment of any
principal, premium or interest, as the case may be, in
respect of the Securities which is then due, and, to the
extent of such application, the obligation of the Company
hereunder to make such payment in respect of the Securities
shall be deemed to have been satisfied and discharged.
If, at the time of any such payment of principal of
First Mortgage Bonds delivered to and held by the Trustee
pursuant to Sections 1504 and 1507, there shall be no principal
then due in respect of the Securities, such payment in respect of
such First Mortgage Bonds shall be deemed to constitute Funded
Cash and shall be held by the Trustee as part of the Mortgaged
Property, to be withdrawn, used or applied in the manner, to the
extent and for the purposes provided in Section 1517.
If, at the time of any such payment of premium or
interest on First Mortgage Bonds delivered to and held by the
Trustee pursuant to Sections 1504 and 1507, there shall be no
premium or interest, as the case may be, then due in respect of
the Securities, such payment in respect of such First Mortgage
Bonds shall be remitted to the Company upon receipt by the
Trustee of a Company Order requesting the same, together with an
Officer's Certificate stating that no Event of Default has
occurred and is continuing; provided, however, that, if an Event
of Default shall have occurred and be continuing, such proceeds
shall be held as part of the Mortgaged Property until such Event
of Default shall have been cured or waived.
(b) Any payment by the Company hereunder of principal
of or premium or interest on Securities which shall have
been authenticated and delivered upon the basis of the
delivery to the Trustee of First Mortgage Bonds (other than
by the application of the proceeds of a payment in respect
of such First Mortgage Bonds) shall, to the extent thereof,
be deemed, for all purposes of this Indenture, to satisfy
and discharge the obligation of the Company, if any, to make
a payment of principal, premium or interest, as the case may
be, in respect of such First Mortgage Bonds which is then
due.
(c) The Trustee hereby waives notice of any redemption
of First Mortgage Bonds delivered to it pursuant to Section
1504.
SECTION 1509. Surrender of First Mortgage Bonds.
At the time any Securities which shall have been
authenticated and delivered on the basis of the delivery to the
Trustee of First Mortgage Bonds cease to be Outstanding (other
than as a result of the application of the proceeds of the
payment or redemption of such First Mortgage Bonds), the Trustee
shall surrender to, or upon the order of, the Company an equal
principal amount of such First Mortgage Bonds.
SECTION 1510. No Transfer of First Mortgage Bonds
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall not sell, assign or otherwise
transfer any First Mortgage Bonds delivered to and held by it
pursuant to Sections 1504 and 1507 except to a successor trustee
under this Indenture and except as provided in Section 1509. The
Company may take such actions as it shall deem necessary,
desirable or appropriate to effect compliance with such
restrictions on transfer, including the placing of a legend on
each such First Mortgage Bond and the issuance of stop-transfer
instructions to the trustee under the First Mortgage Bond
Indenture or any other transfer agent thereunder.
SECTION 1511. Voting of First Mortgage Bonds
The Trustee shall, as the holder of First Mortgage
Bonds delivered to and held by it pursuant to Sections 1504 and
1507, attend such meeting or meetings of bondholders under the
First Mortgage Bond Indenture or, at its option, deliver its
proxy in connection therewith, as such meetings relate to matters
with respect to which it, as such holder, is entitled to vote or
consent. So long as no Event of Default hereunder shall have
occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the
First Mortgage Bonds Outstanding under the First Mortgage Bond
Indenture is sought without a meeting, the Trustee shall vote as
holder of First Mortgage Bonds delivered to and held by it
pursuant to Sections 1504 and 1507 which were delivered under the
First Mortgage Bond Indenture, or shall consent with respect
thereto, as follows:
(a) the Trustee shall vote all such First Mortgage
Bonds delivered under the First Mortgage Bond Indenture, or
shall consent with respect thereto, in favor of any or all
amendments or modifications of substantially the same tenor
and effect as any or all of those set forth in Exhibit B to
this Indenture;
(b) with respect to any other amendments or
modifications of the First Mortgage Bond Indenture, the
Trustee shall vote all such First Mortgage Bonds delivered
under the First Mortgage Bond Indenture, or shall consent
with respect thereto, proportionately with the vote of all
other First Mortgage Bonds Outstanding the holders of which
are eligible to vote or consent, as indicated in a First
Mortgage Bondholder's Certificate delivered to the Trustee;
provided, however, that the Trustee shall not so vote in
favor of, or so consent to, any amendment or modification of
the First Mortgage Bond Indenture which, if it were an
amendment or modification of this Indenture, would require
the consent of Holders, without the prior consent, obtained
in the manner prescribed in Section 1202, of Holders of
Securities which would be required under said Section 1202
for such an amendment or modification of this Indenture.
For purposes of this Section, "First Mortgage
Bondholder's Certificate" means a certificate signed by the
temporary chairman, the temporary secretary, the permanent
chairman, the permanent secretary, or an inspector of votes at
any meeting or meetings of bondholders under the First Mortgage
Bond Indenture, or by the trustee under the First Mortgage Bond
Indenture in the case of consents of such bondholders which are
sought without a meeting, which states what the signer thereof
reasonably believes will be the proportionate votes or consents
of the holders of all First Mortgage Bonds (other than the First
Mortgage Bonds delivered to and held by the Trustee pursuant to
Sections 1504 and 1507) outstanding under such First Mortgage
Bond Indenture and counted for the purposes of determining
whether such bondholders have approved or consented to the matter
put before them.
SECTION 1512. Quiet Enjoyment.
Unless one or more Events of Default shall have
occurred and be continuing, the Company shall be permitted to
possess, use and enjoy the Mortgaged Property (except, to the
extent not herein otherwise provided, such cash and securities as
are expressly required to be deposited with the Trustee).
SECTION 1513. Dispositions without Release.
Unless an Event of Default shall have occurred and be
continuing, the Company may at any time and from time to time,
without any release or consent by, or report to, the Trustee:
(a) sell or otherwise dispose of, free from the Lien
of this Indenture, any machinery, equipment, apparatus,
towers, transformers, poles, lines, cables, conduits, ducts,
conductors, meters, regulators, holders, tanks, retorts,
purifiers, odorizers, scrubbers, compressors, valves, pumps,
mains, pipes, service pipes, fittings, connections,
services, tools, implements, or any other fixtures or
personalty, then subject to the Lien hereof, which shall
have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use
in the operations of the Company upon replacing the same by,
or substituting for the same, similar or analogous property,
or other property performing a similar or analogous function
or otherwise obviating the need therefor, having a Fair
Value at least equal to that of the property sold or
otherwise disposed of and subject to the Lien hereof,
subject to no Liens prior hereto except any other Liens to
which the property sold or otherwise disposed of was
subject;
(b) cancel or make changes or alterations in or
substitutions for any and all easements, servitudes, rights-
of-way and similar rights and/or interests; and
(c) grant, free from the Lien of this Indenture,
easements, ground leases or rights-of-way in, upon, over
and/or across the property or rights-of-way of the Company
for the purpose of roads, pipe lines, transmission lines,
distribution lines, communication lines, railways, removal
of coal or other minerals or timber, and other like
purposes, or for the joint or common use of real property,
rights-of-way, facilities and/or equipment; provided,
however, that such grant shall not materially impair the use
of the property or rights-of-way for the purposes for which
such property or rights-of-way are held by the Company.
SECTION 1514. Release of First Mortgage Bonds.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any First
Mortgage Bonds then held by the Trustee, and the Trustee shall
release all its right and interest in and to the same from the
Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
First Mortgage Bonds and transmitting therewith a form of
instrument to effect such release;
(b) an Officer's Certificate stating that, to the
knowledge of the signer, no Event of Default has occurred
and is continuing;
(c) an Expert's Certificate made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the First Mortgage Bonds to
be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the First Mortgage Bonds to be
released;
(iii) stating the principal amount of the
First Mortgage Bonds to be released;
(iv) stating that such release is, in the
judgment of the signers, desirable in the conduct of
business of the Company; and
(v) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof; and
(d) the amount of cash to be held by the Trustee as
part of the Mortgaged Property, equal to the amount, if any,
by which the amount referred to in clause (c)(iii) above
exceeds the aggregate of the following items:
(i) the aggregate principal amount of any
Outstanding Securities delivered to the Trustee; and
(ii) an amount which shall not exceed the
Collateral Balance shown on an accompanying Officer's
Certificate of Collateral Balance, provided that an
Officer's Certificate dated as of the date of such
Company Order shall also be delivered to the Trustee,
(A) stating the amount of Total
Equity determined as of a stated date, which
stated date shall be not more than six months
prior to the date of such Company Order;
(B) stating the aggregate
principal amount of Securities previously
authenticated and delivered on the basis of Total
Equity (including any Securities previously
authenticated and delivered on the basis of First
Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of
Total Equity pursuant to Sections 1514 or 1517
hereof) which are Outstanding as of the date of
such Company Order;
(C) stating the aggregate principal
amount of First Mortgage Bonds requested to be
released by such Company Order; and
(D) stating that the sum of the
amounts stated in clauses (B) and (C) above does
not exceed three times the amount of Total Equity
stated in clause (A) above.
Any Outstanding Securities deposited with the Trustee
pursuant to clause (d)(i) of this Section shall forthwith be
canceled by the Trustee. Any cash so deposited with the Trustee
shall be held as part of the Mortgaged Property and shall be
withdrawn, released, used or applied in the manner, to the extent
and for the purposes, and subject to the conditions, provided in
Section 1517.
Any Outstanding Securities which were authenticated and
delivered on the basis of First Mortgage Bonds released pursuant
to this Section shall after such release be deemed to have been
authenticated and delivered on the basis of Total Equity.
SECTION 1515. Release of Mortgaged Property.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the
Mortgaged Property, or any interest therein, (other than Funded
Cash or First Mortgage Bonds deposited with the Trustee) and the
Trustee shall release all its right, title and interest in and to
the same from the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
property and transmitting therewith a form of instrument to
effect such release;
(b) an Officer's Certificate dated as of the date of
such Company Order stating that, to the knowledge of the
signer, no Event of Default has occurred and is continuing;
(c) an Officer's Certificate of Collateral Balance
dated as of the date of such Company Order showing a
Collateral Balance not less than the Fair Value of the
property to be released as shown on the accompanying
Expert's Certificate;
(d) an Expert's Certificate, made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the property to be released;
(iii) stating that (except in any case
where a Governmental Authority has ordered the Company
to divest itself of such property) such release is, in
the opinion of the signers, desirable in the conduct of
the business of the Company; and
(iv) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof.
SECTION 1516. Release of Mortgaged Property on the Basis of Cash
or Pledged Obligations.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the
Mortgaged Property, or any interest therein, (other than Funded
Cash or First Mortgage Bonds deposited with the Trustee) and the
Trustee shall release all its right, title and interest in and to
the same from the Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such
property and transmitting therewith a form of instrument to
effect such release;
(b) an Officer's Certificate dated as of the date of
such Company Order stating that, to the knowledge of the
signer, no Event of Default has occurred and is continuing;
(c) an Expert's Certificate, made and dated not more
than 90 days prior to the date of such Company Order:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment
of the signers, of the property to be released;
(iii) stating that (except in any case
where a Governmental Authority has ordered the Company
to divest itself of such property) such release is, in
the opinion of the signers, desirable in the conduct of
the business of the Company; and
(iv) stating that, in the judgment of the
signers, such release will not impair the security
under this Indenture in contravention of the provisions
hereof; and
(d) an amount of cash to be held by the Trustee as
part of the Mortgaged Property, equal to the amount, if any,
by which the amount referred to in clause (c)(ii) above
exceeds the Fair Value to the Company, as set forth in an
accompanying Expert's Certificate described below, of any
Pledged Obligations delivered to the Trustee.
If the release of Mortgaged Property is, in whole or in
part, based upon the delivery to the Trustee of Pledged
Obligations, the Company shall deliver to the Trustee an Expert's
Certificate
(A) stating the Fair Value to the Company, in the
judgment of the signers, of the Pledged Obligations to be
delivered to the Trustee as the basis of such release;
(B) stating the aggregate Fair Value, as stated in
Expert's Certificates previously delivered to the Trustee,
of all other securities (other than Securities or First
Mortgage Bonds) made the basis of any authentication and
delivery of Securities, the withdrawal of Funded Cash or the
release of Mortgaged Property since the commencement of the
then calendar year;
(C) stating the sum of the amounts stated in clauses
(A) and (B) above; and
(D) stating the aggregate principal amount of all
Securities then Outstanding.
If the amount stated in clause (C) above is 10 per centum or more
of the amount stated in clause (D), such Expert's Certificate
shall be made by an Independent Expert unless the amount stated
in clause (A) above is less than $25,000 or less than 1 per
centum of the amount stated in clause (D) above.
Any cash so deposited with the Trustee shall be held as
part of the Mortgaged Property and shall be withdrawn, released,
used or applied in the manner, to the extent and for the
purposes, and subject to the conditions, provided in Section
1517. Any Pledged Obligations so delivered to the Trustee shall
be held as part of the Mortgaged Property, shall be deemed part
of the Mortgaged Property for all purposes under this Indenture,
and may be released in the manner, to the extent and for the
purposes, and subject to the conditions, provided in this Section
or in Section 1515.
The principal of and interest on any Pledged
Obligations held by the Trustee shall be collected by the Trustee
as and when the same become payable, shall be held as part of the
Mortgaged Property and shall be withdrawn, released, used or
applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in Section 1517.
"Pledged Obligations" shall mean Government Obligations
owned by the Company and delivered to the Trustee pursuant to
this Section.
SECTION 1517. Withdrawal or Other Application of Funded Cash.
Subject to the provisions of Section 1508(a) and except
as hereafter in this Section provided, unless an Event of Default
shall have occurred and be continuing, any Funded Cash held by
the Trustee, and any other cash which is required to be
withdrawn, used or applied as provided in this Section,
(a) may be withdrawn from time to time by the Company
in an amount up to the Collateral Balance shown in an
accompanying Officer's Certificate of Collateral Balance
dated as of the date of the Company Order requesting such
withdrawal, provided that an Officer's Certificate dated as
of the date of such Company Order shall also be delivered to
the Trustee,
(i) stating the amount of Total Equity
determined as of a stated date, which stated date shall
be not more than six months prior to the date of such
Company Order;
(ii) stating the aggregate principal amount
of Securities previously authenticated and delivered on
the basis of Total Equity (including any Securities
previously authenticated and delivered on the basis of
First Mortgage Bonds or cash which are deemed to have
been authenticated and delivered on the basis of Total
Equity pursuant to Sections 1514 or 1517 hereof) which
are Outstanding as of the date of such Company Order;
(iii) stating the amount of cash
requested to be withdrawn by such Company Order; and
(iv) stating that the sum of the amounts
stated in clauses (ii) and (iii) above does not exceed
three times the amount of Total Equity stated in clause
(i) above.
(b) may be withdrawn from time to time by the Company
in an amount equal to the aggregate principal amount of any
Outstanding Securities delivered to the Trustee;
(c) may, upon the request of the Company, be used by
the Trustee for the purchase of Securities in the manner, at
the time or times, in the amount or amounts, at the price or
prices and otherwise as directed or approved by the Company,
all subject to the limitations hereafter in this Section set
forth; or
(d) may, upon the request of the Company, be applied
by the Trustee to the payment (or provision therefor
pursuant to Article Seven) at Stated Maturity of any
Securities or to the redemption (or similar provision
therefor) of any Securities which are, by their terms,
redeemable, in each case of such series as may be designated
by the Company, any such redemption to be in the manner and
as provided in Article Four, all subject to the limitations
hereafter in this Section set forth.
Such moneys shall, from time to time, be paid or used
or applied by the Trustee, as aforesaid, upon the request of the
Company in a Company Order, and upon receipt by the Trustee of an
Officer's Certificate dated as of the date of such Company Order
stating that, to the knowledge of the signer, no Event of Default
has occurred and is continuing.
Notwithstanding the generality of clauses (c) and (d)
above, no cash to be applied pursuant to such clauses shall be
applied to the payment of an amount in excess of the principal
amount of any Securities to be purchased, paid or redeemed except
to the extent that the aggregate principal amount of all
Securities theretofore, and of all Securities then to be,
purchased, paid or redeemed pursuant to such clauses is not less
than the aggregate cost for principal of, premium, if any, and
accrued interest, if any, on and brokerage commissions, if any,
with respect to, such Securities.
Any Securities received by the Trustee pursuant to the
provisions of this Section shall forthwith be canceled by the
Trustee.
Any Outstanding Securities which were authenticated and
delivered on the basis of cash deposited with the Trustee which
cash is withdrawn pursuant to this Section shall after such
withdrawal be deemed to have been authenticated and delivered on
the basis of Total Equity.
SECTION 1518. Alternative Release Provision.
Anything in this Indenture to the contrary
notwithstanding, unless an Event of Default shall have occurred
and be continuing, the Company may obtain the release of any part
of the Mortgaged Property which is subject to the Lien of the
First Mortgage Bond Indenture (except cash), without compliance
with any of the provisions of Section 1514, 1515 or 1516, by
delivery to the Trustee of an Officer's Certificate stating that,
to the knowledge of the signer, no Event of Default has occurred
and is continuing, an Expert's Certificate as to the Fair Value
of the property to be released and a copy of a release of such
part of the Mortgaged Property from the Lien of the First
Mortgage Bond Indenture executed by the trustee thereunder.
SECTION 1519. Disclaimer or Quit Claim.
In case the Company has sold, exchanged, dedicated or
otherwise disposed of, or has agreed or intends to sell,
exchange, dedicate or otherwise dispose of, or a Governmental
Authority has ordered the Company to divest itself of, any
Excepted Property or any other property not subject to the Lien
hereof, or the Company desires to disclaim or quitclaim title to
property to which the Company does not purport to have title, the
Trustee shall, from time to time, disclaim or quitclaim such
property upon receipt by the Trustee of the following:
(a) a Company Order requesting such disclaimer or
quitclaim and transmitting therewith a form of instrument to
effect such disclaimer or quitclaim;
(b) an Officer's Certificate describing the property
to be disclaimed or quitclaimed; and
(c) an Opinion of Counsel stating the signer's opinion
that such property is not subject to the Lien hereof or
required to be subject thereto by any of the provisions
hereof.
SECTION 1520. Miscellaneous.
(a) The Expert's Certificate as to the Fair Value of
property to be released from the Lien of this Indenture in
accordance with any provision of this Article, and as to the
nonimpairment, by reason of such release, of the security
under this Indenture in contravention of the provisions
hereof, shall be made by an Independent Expert if the Fair
Value of such property and of all other property released
since the commencement of the then current calendar year, as
set forth in the certificates required by this Indenture, is
10% or more of the sum of the aggregate principal amount of
the Securities at the time Outstanding; but such Expert's
Certificate shall not be required to be made by an
Independent Expert in the case of any release of property if
the Fair Value thereof, as set forth in the certificates
required by this Indenture, is less than $25,000 or less
than 1% of the aggregate principal amount of the Securities
at the time Outstanding. To the extent that the Fair Value
of any property to be released from the Lien of this
Indenture shall be stated in an Independent Expert's
Certificate, such Fair Value shall not be required to be
stated in any other Expert's Certificate delivered in
connection with such release.
(b) No release of property from the Lien of this
Indenture effected in accordance with the provisions, and in
compliance with the conditions, set forth in this Article
and in Sections 102 and 103 shall be deemed to impair the
security of this Indenture in contravention of any provision
hereof.
(c) If the Mortgaged Property shall be in the
possession of a receiver or trustee, lawfully appointed, the
powers hereinbefore conferred upon the Company with respect
to the release of any part of the Mortgaged Property or any
interest therein or the withdrawal of cash may be exercised,
with the approval of the Trustee, by such receiver or
trustee, notwithstanding that an Event of Default may have
occurred and be continuing, and any request, certificate,
appointment or approval made or signed by such receiver or
trustee for such purposes shall be as effective as if made
by the Company or any of its officers or appointees in the
manner herein provided; and if the Trustee shall be in
possession of the Mortgaged Property under any provision of
this Indenture, then such powers may be exercised by the
Trustee in its discretion notwithstanding that an Event of
Default may have occurred and be continuing.
(d) If the Company shall retain any interest in any
property released from the Lien of this Indenture as
provided in Section 1515 or 1516, this Indenture shall not
become or be, or be required to become or be, a Lien upon
such property or such interest therein or any improvements,
extensions or additions to such property or renewals,
replacements or substitutions of or for such property or any
part or parts thereof unless the Company shall execute and
deliver to the Trustee an indenture supplemental hereto, in
recordable form, containing a grant, conveyance, transfer
and mortgage thereof.
(e) Notwithstanding the occurrence and continuance of
an Event of Default, the Trustee, in its discretion, may
release from the Lien hereof any part of the Mortgaged
Property or permit the withdrawal of cash, upon compliance
with the other conditions specified in this Article in
respect thereof.
(f) No purchaser in good faith of property purporting
to have been released hereunder shall be bound to ascertain
the authority of the Trustee to execute the release, or to
inquire as to any facts required by the provisions hereof
for the exercise of this authority; nor shall any purchaser
or grantee of any property or rights permitted by this
Article to be sold, granted, exchanged, dedicated or
otherwise disposed of, be under obligation to ascertain or
inquire into the authority of the Company to make any such
sale, grant, exchange, dedication or other disposition.
SECTION 1521. Additional Defaults.
In addition to those provisions contemplated by Article
Eight, so long as the Trustee shall hold any Outstanding First
Mortgage Bonds which were delivered to the Trustee as the basis
for the authentication and delivery of Securities which remain
Outstanding hereunder, the occurrence of a matured event of
default under the First Mortgage Bond Indenture under which such
First Mortgage Bonds were delivered (other than any such matured
event of default which (i) is of similar kind or character to the
Event of Default described in clause (c) of Section 801 and (ii)
has not resulted in the acceleration of the First Mortgage Bonds
Outstanding under the First Mortgage Bond Indenture) shall
constitute an Event of Default hereunder; provided, however,
that, anything in this Indenture to the contrary notwithstanding,
the waiver or cure of such event of default under the First
Mortgage Bond Indenture and the rescission and annulment of the
consequences thereof shall constitute a waiver of the
corresponding Event of Default hereunder and a rescission and
annulment of the consequences thereof.
SECTION 1522. Acceleration of Maturity; Rescission and
Annulment.
So long as this Article remains in effect, this Section
will replace Section 802. If an Event of Default shall have
occurred and be continuing, then in every such case the Trustee
or the Holders of not less than 33% in principal amount of the
Securities then Outstanding may declare the principal amount (or,
if any of the Securities 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
Securities then Outstanding to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given
by Holders), and upon such declaration such principal amount (or
specified amount), together with premium, if any, and accrued
interest, if any, thereon, shall become immediately due and pay
able.
At any time after such a declaration of acceleration of
the maturity of the Securities then Outstanding shall have been
made, but before any sale of any of the Mortgaged Property has
been made and before a judgment or decree for payment of the
money due shall have been obtained by the Trustee as provided in
Article Eight and in this Article, 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
(i) all overdue interest, if any, on all
Securities then Outstanding;
(ii) the principal of and premium, if any,
on any Securities then Outstanding which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Securities; and
(iii) all amounts due to the Trustee under
Section 907;
and
(b) any other Event or Events of Default, other than
the non-payment of the principal of Securities 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 1523. Entry upon Mortgaged Property.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and be
continuing, the Company, upon demand of the Trustee and if and to
the extent permitted by law, shall forthwith surrender to the
Trustee the actual possession of, and the Trustee, by such
officers or agents as it may appoint, may enter upon and take
possession of, the Mortgaged Property; and the Trustee may hold,
operate and manage the Mortgaged Property and make all needful
repairs and such renewals, replacements, betterments and
improvements as to the Trustee shall seem prudent; and the
Trustee may receive the rents, issues, profits, revenues and
other income of the Mortgaged Property, to the extent, if any,
that the same shall not then constitute Excepted Property; and,
after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Mortgaged
Property, as well as payments for insurance and taxes and other
proper charges upon the Mortgaged Property prior to the Lien of
this Indenture and reasonable compensation to itself, its agents
and counsel, the Trustee may apply the same as provided in
Section 806. Whenever all that is then due in respect of the
principal of and premium, if any, and interest, if any, on the
Securities and under any of the terms of this Indenture shall
have been paid and all defaults hereunder shall have been cured,
the Trustee shall surrender possession of the Mortgaged Property
to the Company.
SECTION 1524. Power of Sale; Suits for Enforcement.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and be
continuing, the Trustee, by such officers or agents as it shall
appoint, with or without entry, in its discretion may, subject to
the provisions of Section 812 and if and to the extent permitted
by law:
(a) sell, subject to any mandatory requirements of
applicable law, the Mortgaged Property as an entirety, or in
such parcels as the Holders of a majority in principal
amount of the Securities then Outstanding shall in writing
request, or in the absence of such request, as the Trustee
may determine, to the highest bidder at public auction at
such place and at such time (which sale may be adjourned by
the Trustee from time to time in its discretion by
announcement at the time and place fixed for such sale,
without further notice) and upon such terms as the Trustee
may fix and briefly specify in a notice of sale to be
published once in each week for four successive weeks prior
to such sale in an Authorized Publication in each Place of
Payment for the Securities of each series; or
(b) proceed to protect and enforce its rights and the
rights of the Holders of Securities under this Indenture by
sale pursuant to judicial proceedings or by a suit, action
or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement
contained in this Indenture or in aid of the execution of
any power granted in this Indenture or for the foreclosure
of this Indenture or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce
any of the rights of the Trustee or the Holders of
Securities.
SECTION 1525. Incidents of Sale.
In addition to those provisions contemplated by Article
Eight, upon any sale of any of the Mortgaged Property, whether
made under the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal amount (or, if any of the Securities
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 Outstanding
Securities, if not previously due, shall at once become and
be immediately due and payable, together with premium, if
any, and accrued interest, if any, thereon;
(b) any Holder or Holders of Securities or the Trustee
may bid for and purchase the property offered for sale, and
upon compliance with the terms of sale may hold, retain and
possess and dispose of such property, without further
accountability, and may, in paying the purchase money
therefor, deliver any Outstanding Securities or claims for
interest thereon in lieu of cash to the amount which shall,
upon distribution of the net proceeds of such sale, be
payable thereon, and such Securities, in case the amounts so
payable thereon shall be less than the amount due thereon,
shall be returned to the Holders thereof after being
appropriately stamped to show partial payment;
(c) the Trustee may make and deliver to the purchaser
or purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) the Trustee is hereby irrevocably appointed the
true and lawful attorney of the Company, in its name and
stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property so
sold; and for that purpose it may execute all necessary
deeds, bills of sale and instruments of assignment and
transfer, and may substitute one or more persons, firms or
corporations with like power, the Company hereby ratifying
and confirming all that its said attorney or such substitute
or substitutes shall lawfully do by virtue hereof; but, if
so requested by the Trustee or by any purchaser, the Company
shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser
or purchasers all proper deeds, bills of sale, instruments
of assignment and transfer and releases as may be designated
in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of the
Company of, in and to the property so sold shall be divested
and such sale shall be a perpetual bar both at law and in
equity against the Company, its successors and assigns, and
against any and all persons claiming or who may claim the
property sold or any part thereof from, through or under the
Company; and
(f) the receipt of the Trustee or of the officer
making such sale shall be a sufficient discharge to the
purchaser or purchasers at such sale for his or their
purchase money and such purchaser or purchasers and his or
their assigns or personal representatives shall not, after
paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or
be in anywise answerable for any loss, misapplication or non-
application thereof.
SECTION 1526. Receiver.
In addition to those provisions contemplated by Article
Eight, if an Event of Default shall have occurred and, during the
continuance thereof, the Trustee shall have commenced judicial
proceedings to enforce any right under this Indenture, the
Trustee shall, to the extent permitted by law, be entitled, as
against the Company, without notice or demand and without regard
to the adequacy of the security for the Securities or the
solvency of the Company, to the appointment of a receiver of the
Mortgaged Property.
SECTION 1527. Suits for Enforcement by Trustee.
In addition to those provisions contemplated by Article
Eight, the Trustee shall, to the extent permitted by law, be
entitled to sue and recover judgment as aforesaid either before,
during or after the pendency of any proceedings for the
enforcement of the Lien of this Indenture, and in case of a sale
of the Mortgaged Property or any part thereof and the application
of the proceeds of sale as aforesaid, the Trustee, in its own
name and as trustee of an express trust, shall be entitled to
enforce payment of, and to receive, all amounts then remaining
due and unpaid upon the Securities then Outstanding for
principal, premium, if any, and interest, if any, for the benefit
of the Holders thereof, and shall be entitled to recover judgment
for any portion of the same remaining unpaid, with interest as
aforesaid. No recovery of any such judgment by the Trustee and
no levy of any execution upon any such judgment upon any of the
Mortgaged Property or any other property of the Company shall
affect or impair the Lien of this Indenture upon the Mortgaged
Property or any part thereof or any rights, powers or remedies of
the Trustee hereunder, or any rights, powers or remedies of the
Holders of the Securities.
SECTION 1528. Application of Money Collected.
So long as this Article remains in effect, this Section
will replace Section 806. Any money collected by the Trustee
pursuant to this Article, including any rents, profits, revenues
and other income collected pursuant to Section 1523 (after the
deductions therein provided) and any proceeds of any sale (after
deducting the costs and expenses of such sale, including a
reasonable compensation to the Trustee, its agents and counsel,
and any taxes, assessments or Liens prior to the Lien of this
Indenture, except any thereof subject to which such sale shall
have been made), whether made under any power of sale herein
granted or pursuant to judicial proceedings, and any money
collected by the Trustee under Sections 1508 and 1517, together
with, in the case of an entry or sale or as otherwise provided
herein, any other sums then held by the Trustee as part of the
Mortgaged Property, shall be applied in the following order, to
the extent permitted by law, 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 and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all undeducted amounts due
the Trustee under Section 907;
Second: To the payment of the whole amount then due
and unpaid upon the Outstanding Securities for principal and
premium, if any, and interest, if any, in respect of which
or for the benefit of which such money has been collected;
and in case such proceeds shall be insufficient to pay in
full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and
interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment
of premium, if any, and, if so specified as contemplated by
Section 301 with respect to the Securities of any series, or
any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid,
all to the extent permitted by applicable law; provided,
however, that any money collected by the Trustee pursuant to
Sections 1508 and 1517 in respect of interest and Section
1523 shall first be applied to the payment of interest
accrued on the principal of Outstanding Securities; 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 1529. Rights and Remedies - Additional Provision.
In addition to those provisions contemplated by Article
Eight, anything in Article Eight to the contrary notwithstanding,
the availability of the remedies set forth therein (on an
individual or cumulative basis) and the procedures set forth
therein relating to the exercise thereof shall be subject to (a)
the law (including, for purposes of this paragraph, general
principles of equity) of any jurisdiction wherein the Mortgaged
Property or any part thereof is located to the extent that such
law is mandatorily applicable and (b) the rights of the holder of
any Lien prior to the Lien of this Indenture, and, if and to the
extent that any provision of Article Eight conflicts with any
provision of such applicable law and/or with the rights of the
holder of any such prior Lien, such provision of law and/or the
rights of such holder shall control.
SECTION 1530. Control by Holders of Securities.
So long as this Article remains in effect, this Section
will replace Section 812. If an Event of Default shall have
occurred and be continuing, the Holders of a majority in
principal amount of the Securities then Outstanding shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however,
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 1531. Waiver of Past Defaults.
So long as this Article remains in effect, this Section
will replace Section 813. Before any sale of any of the
Mortgaged Property 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 Holders of not less
than a majority in principal amount of the Securities then
Outstanding may on behalf of the Holders of all the Securities
then Outstanding waive any past default hereunder 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 Outstanding, 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 any
series or Tranche 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 1532. Additional Supplemental Indentures Without Consent
of Holders
In addition to those provisions contemplated by
Section 1201, 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 correct or amplify the description of any
property at any time subject to the Lien of this Indenture;
or better to assure, convey and confirm unto the Trustee any
property subject or required to be subjected to the Lien of
this Indenture; or to subject to the Lien of this Indenture
additional property (including property of Persons other
than the Company); or
(b) to exclude from the Lien of this Indenture any
kind of character of property, provided, that any Mortgaged
Property of such kind or character shall have been released
from the Lien of this Indenture or shall be subject to a
release application to the Trustee; or
(c) to amend and restate this Indenture, as originally
executed and delivered and as it may have been subsequently
amended, in its entirety to read substantially as this
Indenture with the deletion of the Granting Clauses, this
Article Fifteen and all references to "Mortgaged Property"
and the "Lien" of the Indenture.
Prior to the execution and delivery by the Trustee of a
supplemental indenture described in clause (c) above, the Company
shall deliver to the Trustee:
(i) a Company Order requesting execution and
delivery by the Trustee of such supplemental indenture;
(ii) an Officer's Certificate stating that:
(x) to the knowledge of
the signer, no Event of Default has
occurred or is continuing; and
(y) (i) the Company's
Charter has been duly amended to
eliminate the restrictions on the
issuance of unsecured indebtedness by
the Company contained in the Charter; or
(ii) all of the preferred securities
which have the benefit of such
restrictions have been paid, retired or
redeemed; or (iii) holders of such
preferred securities consent to amend
the Charter for the purpose of
eliminating such restrictions.
Upon the execution and delivery of a supplemental
indenture described in clause (c) above, (a) the Lien of this
Indenture shall be deemed to have been satisfied and discharged,
(b) the Trustee shall assign, transfer and otherwise turn over to
the Company the Mortgaged Property (other than money and Eligible
Obligations held by the Trustee pursuant to Section 703), (c) the
Trustee shall execute and deliver to the Company such deeds and
other instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence such
satisfaction, discharge, assignment and transfer and (d) the
Company shall, as promptly as practicable, give notice to all
Holders of such satisfaction and discharge in the same manner as
notice of redemption.
SECTION 1533. Additional Supplemental Indenture Restriction
Requiring the Consent of Holders.
In addition to those provisions contemplated by
Section 1202, no supplemental indenture shall (except by virtue
of a supplemental indenture described in clause (b) in
Section 1532) terminate the Lien of this Indenture on all or
substantially all of the Mortgaged Property or deprive the
Holders of the benefit of the Lien of this Indenture, without, in
any such case, the consent of the Holders of all Securities then
Outstanding.
SECTION 1534. Satisfaction and Discharge of Indenture.
Upon satisfaction and discharge of this Indenture as
provided in Section 702, the Trustee shall release, quitclaim and
otherwise turn over to the Company the Mortgaged Property (other
than money and Eligible Obligations held by the Trustee pursuant
to Section 703) and shall execute and deliver to the Company such
deeds and other instruments as, in the judgment of the Company,
shall be necessary, desirable or appropriate to effect or
evidence such release and quitclaim and the satisfaction and
discharge of this Indenture.
SECTION 1535. Company may Consolidate, etc., Only on Certain
Terms.
So long as this Article remains in effect, Sections
1535, 1536, 1537, 1538 and 1539 will replace the provisions of
Article Eleven. The Company shall not consolidate with or merge
into any other corporation, or convey or otherwise transfer or
lease, subject to the Lien of this Indenture, the Mortgaged
Property as or 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 other transfer, or which leases,
the Mortgaged Property as or substantially as an entirety
shall be a corporation organized and existing under the laws
of the United States, any State or Territory thereof or the
District of Columbia (such corporation being hereinafter
sometimes called the "Successor Corporation") and shall
execute and deliver to the Trustee an indenture supplemental
hereto, in form recordable and satisfactory to the Trustee,
which:
(i) in the case of a consolidation, merger,
conveyance or other transfer, or in the case of a lease
if the term thereof extends beyond the last Stated
Maturity of the Securities then Outstanding, contains
an assumption by the Successor Corporation of the due
and punctual payment of the principal of and premium,
if any, and interest, if any, on all the Securities
then Outstanding and the performance and observance of
every covenant and condition of this Indenture to be
performed or observed by the Company, and
(ii) in the case of a consolidation, merger,
conveyance or other transfer, contains a grant,
conveyance, transfer and mortgage by the Successor
Corporation, of the same tenor of the Granting Clauses
herein,
(A) confirming the Lien of this
Indenture on the Mortgaged Property (as
constituted immediately prior to the time such
transaction became effective) and subjecting to
the Lien of this Indenture all property, real,
personal and mixed, thereafter acquired by the
Successor Corporation which shall constitute an
improvement, extension or addition to the
Mortgaged Property (as so constituted) or a
renewal, replacement or substitution of or for any
part thereof, and, at the election of the
Successor Corporation,
(B) subjecting to the Lien of this
Indenture such property, real, personal or mixed,
in addition to the property described in subclause
(A) above, then owned or thereafter acquired by
the Successor Corporation as the Successor
Corporation shall, in its sole discretion, specify
or describe therein,
and the Lien confirmed or created by such grant,
conveyance, transfer and mortgage shall have force,
effect and standing similar to those which the Lien of
this Indenture would have had if the Company had not
been a party to such consolidation, merger, conveyance
or other transfer or lease and had itself, after the
time such transaction became effective, purchased,
constructed or otherwise acquired the property subject
to such grant, conveyance, transfer and mortgage;
(b) in the case of a lease, such lease shall be made
expressly subject to termination by the Company or by the
Trustee at any time during the continuance of an Event of
Default, and also by the purchaser of the property so leased
at any sale thereof hereunder, whether such sale be made
under the power of sale hereby conferred or pursuant to
judicial proceedings; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each of
which shall state 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 transaction
have been complied with.
As used in Sections 1535, 1537 and in Section 1520(d),
the terms "improvement", "extension" and "addition" shall be
limited to (a) with respect to real property subject to the Lien
of this Indenture, any item of personal property which has been
so affixed or attached to such real property as to be regarded a
part of such real property under applicable law and (b) with
respect to personal property subject to the Lien of this
Indenture, any improvement, extension or addition to such
personal property which (i) is made to maintain, renew, repair or
improve the function of such personal property and (ii) is
physically installed in or affixed to such personal property.
SECTION 1536. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance or
other transfer, subject to the Lien of this Indenture, of the
Mortgaged Property as or substantially as an entirety in
accordance with Section 1535, the Successor Corporation shall
succeed to, and be substituted for, and may exercise every power
and right of, the Company under this Indenture with the same
effect as if such Successor Corporation had been named as the
"Company" herein.
All Securities so executed by the Successor
Corporation, and authenticated and delivered by the Trustee,
shall in all respects be entitled to the benefit of the Lien of
this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation,
merger, conveyance or other transfer became effective.
SECTION 1537. Extent of Lien Hereof on Property of Successor
Corporation.
Unless, in the case of a consolidation, merger,
conveyance or other transfer contemplated by Section 1535, the
indenture supplemental hereto contemplated in clause (b)(ii) in
Section 1535, or any other indenture, contains a grant,
conveyance, transfer and mortgage by the Successor Corporation as
described in subclause (B) thereof, neither this Indenture nor
such supplemental indenture shall become or be, or be required to
become or be, a Lien upon any of the properties then owned or
thereafter acquired by the Successor Corporation except
properties acquired from the Company in or as a result of such
transaction and improvements, extensions and additions to such
properties and renewals, replacements and substitutions of or for
any part or parts thereof.
SECTION 1538. Release of Company upon Conveyance or Other
Transfer.
In the case of a conveyance or other transfer to any
Person or Persons as contemplated in Section 1535, upon the
satisfaction of all the conditions specified in Section 1535 the
Company (such term being used in this Section without giving
effect to such transaction) shall be released and discharged from
all obligations and covenants under this Indenture and on and
under all Securities then Outstanding unless the Company shall
have delivered to the Trustee an instrument in which it shall
waive such release and discharge.
SECTION 1539. Merger into Company; Extent of Lien Hereof.
(a) Nothing in this Indenture shall be deemed to
prevent or restrict any consolidation or merger after the
consummation of which the Company would be the surviving or
resulting corporation or any conveyance or other transfer or
lease, subject to the Lien of this Indenture, of any part of the
Mortgaged Property which does not constitute the entirety, or
substantially the entirety, thereof.
(b) Unless, in the case of a consolidation or merger
described in subsection (a) of this Section, an indenture
supplemental hereto shall otherwise provide, this Indenture shall
not become or be, or be required to become or be, a Lien upon any
of the properties acquired by the Company in or as a result of
such transaction or any improvements, extensions or additions to
such properties or any renewals, replacements or substitutions of
or for any part or parts thereof.
_________________________
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.
ARKANSAS POWER & LIGHT COMPANY
By:_________________________________
[SEAL]
ATTEST:
_______________________
CHEMICAL BANK, 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 Arkansas 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
Chemical Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name
thereto by like authority.
________________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A
[All real property subject to the lien of the Mortgage as of the
date hereof and all personal property and fixtures included on the
Company's books as electric utility plant]
Excepted Property
Expressly excepting and excluding, however, from
the Lien of this Indenture all right, title and
interest of the Company in and to the following
property, whether now owned or hereafter acquired
(herein sometimes called "Excepted Property"):
(a) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests
in general or limited partnerships, bonds, notes, evidences
of indebtedness and other securities not hereafter paid or
delivered to, deposited with or held by the Trustee
hereunder or required so to be;
(b) all contracts, leases, operating agreements, and
other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute
securities, in which case they are separately excepted from
the Lien of this Indenture under clause (a) above); all
revenues, income and earnings, all accounts, accounts
receivable and unbilled revenues, and all rents, tolls,
issues, product and profits, claims, credits, demands and
judgments; all governmental and other licenses, permits,
franchises, consents and allowances; all patents, patent
licenses and other patent rights, patent applications, trade
names, trademarks, copyrights, claims, credits, chooses in
action and other intangible property and general intangibles
including, but not limited to, computer software;
(c) all automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable
equipment; all rolling stock, rail cars and other railroad
equipment; all vessels, boats, barges and other marine
equipment; all airplanes, helicopters, aircraft engines and
other flight equipment; all parts, accessories and supplies
used in connection with any of the foregoing; and all
personal property of such character that the perfection of a
security interest therein or other Lien thereon is not
governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;
(d) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the
ordinary course of business; all materials, supplies,
inventory and other items of personal property which are
consumable (otherwise than by ordinary wear and tear) in
their use in the operation of the Mortgaged Property; all
fuel, including nuclear fuel, whether or not any such fuel
is in a form consumable in the operation of the Mortgaged
Property, including separate components of any fuel in the
forms in which such components exist at any time before,
during or after the period of the use thereof as fuel; all
hand and other portable tools and equipment; all furniture
and furnishings; and computers and data processing, data
storage, data transmission, telecommunications and other
facilities, equipment and apparatus, which, in any case, are
used primarily for administrative or clerical purposes or
are otherwise not necessary for the operation or maintenance
of the facilities, machinery, equipment or fixtures;
(e) all coal, ore, gas, oil and other minerals and all
timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have
been mined or extracted or otherwise separated from the
land; and all electric energy, gas (natural or artificial),
steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the
Company;
(f) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment
or apparatus, in any case used or to be used primarily for
the production or gathering of natural gas; and
(g) all leasehold interests held by the Company as
lessee.
provided, however, that (x) if, at any time after the
occurrence of an Event of Default, the Trustee, or any
separate trustee or co-trustee appointed under Section
914 or any receiver, shall have entered into possession
of all or substantially all of the Mortgaged Property,
all the Excepted Property described or referred to in
the foregoing clauses (b), (c) and (d), then owned or
held or thereafter acquired by the Company, to the
extent that the same is used in connection with, or
otherwise relates or is attributable to, the Mortgaged
Property, shall immediately, and, in the case of any
Excepted Property described or referred to in clause
(f), to the extent that the same is used in connection
with, or otherwise relates or is attributable to, the
Mortgaged Property, upon demand of the Trustee or such
other trustee or receiver, become subject to the Lien
of this Indenture to the extent not prohibited by law
or by the terms of any other Lien on such Excepted
Property, and the Trustee or such other trustee or
receiver may, to the extent not prohibited by law or by
the terms of any such other Lien (and subject to the
rights of the holders of all such other Liens), at the
same time likewise take possession thereof, and (y)
whenever all Events of Default shall have been cured
and the possession of all or substantially all of the
Mortgaged Property shall have been restored to the
Company, such Excepted Property shall again be excepted
and excluded from the Lien hereof to the extent set
forth above; it being understood that the Company may,
however, subject to the Lien of this Indenture any
Excepted Property, whereupon the same shall cease to be
Excepted Property.
<PAGE>
EXHIBIT B
The amendment of clause (c) of subdivision (4) of
Section 59 of the Mortgage to read substantially as follows:
(c) the principal amount of each bond or
fraction of bond to the authentication and delivery of which
the Company shall be entitled under the provisions of Section
26 or 10/6 of the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 29 hereof,
by virtue of compliance with all applicable provisions of said
Section 26 or Section 29, as the case may be (except as
hereinafter in this Section otherwise provided) the
application for such release shall operate as a waiver by the
Company of such right to the authentication and delivery of
each such bond or fraction thereof on the basis of which right
such property is released and to such extent no such bond or
fraction thereof may thereafter be authenticated and delivered
hereunder, and any such bonds or Qualified Lien Bonds which
have been made the basis of any such right to the
authentication and delivery of bond(s) or fraction of a bond
so waived shall be deemed to have been made the basis of the
release of such property;
(a) The amendment of Section 60 of the Mortgage by
inserting "(I)" before the word "Unless" in the first line
thereof, and by adding a subsection (II) at the end of Section 60
to read substantially as follows:
(II) Unless the Company is in default in the
payment of the interest on any bonds then Outstanding
hereunder or one or more of the Defaults defined in Section 65
hereof shall have occurred and be continuing, the Company may
obtain the release of any of the Mortgaged and Pledged
Property that is not Funded Property, except cash then held by
the Corporate Trustee (provided, however, that Qualified Lien
Bonds deposited with the Corporate Trustee shall not be
released or surrendered except as provided in Article IX
hereof and obligations secured by purchase money mortgage
deposited with the Corporate Trustee shall not be released
except as provided in Section 61 hereof), and the Corporate
Trustee shall release all its right, title and interest in and
to the same from the Lien hereof upon application of the
Company and receipt by the Corporate Trustee of the following
(in lieu of complying with the requirements of Section 59
hereof):
(1) an Officers' Certificate complying
with the requirements of Section 121 hereof and describing in
reasonable detail the property to be released and requesting
such release, and stating:
(a) that the Company is not in
default in the payment of interest on any bonds then
Outstanding hereunder and that no Default has occurred and is
continuing;
(b) that the Company has
decided to release from the Lien hereof the property to be
released;
(c) that the property to be
released is not Funded Property;
(d) that (except in any case
where a governmental body or agency has exercised a right to
order the Company to divest itself of such property) such
release is in the opinion of the signers desirable in the
conduct of the business of the Company; and
(e) the amount of cash and/or
principal amount of obligations secured by purchase money
mortgage received or to be received for any portion of said
property sold to any Federal, State, County, Municipal or
other governmental bodies or agencies or public or semi-public
corporations, districts, or authorities;
(2) an Engineer's Certificate, made and
dated not more than ninety (90) days prior to the date of such
application, stating:
(a) the fair value, in the
opinion of the signers, of the property (or securities) to be
released;
(b) that in the opinion of the
signers such release will not impair the security under this
Indenture in contravention of the provisions hereof; and
(c) that the Company has
Property Additions constituting property that is not Funded
Property (not including the Property Additions then being
released) of a Cost or fair value to the Company (whichever is
less) of not less than one dollar ($1) (after making any
deductions and any additions pursuant to the provisions of
Section 4 hereof) after deducting the Cost of the property
then being released;
(3) an Opinion of Counsel complying with
the requirements of Section 121 hereof and stating that all
conditions precedent provided for in this Indenture relating
to the release of the property in question have been complied
with; and
(4) in case the Corporate Trustee is
requested to release any franchise, an Opinion of Counsel
complying with the requirements of Section 121 hereof and
stating that in his or their opinion such release will not
impair to any material extent the right of the Company to
operate any of its remaining properties.
(b) The amendment of clause (a) of subdivision (3)
of Section 59 to read substantially as follows:
(a) that the Company has decided to release
from the Lien hereof the property to be released;
(c) The amendment of clause (b) of subdivision (4)
of Section 59 to delete the words "that no such application
for release may be based in whole or in part upon Property
Additions acquired, made or constructed more than five years
prior to the last day of the calendar month immediately
preceding the date of such application, and provided,
further,"
The amendment of clause (5) on page 331 of the Mortgage
to add after the word "royalties;" substantially the following
text:
any property (other than cash [, Class A Bonds] or
purchase money mortgage obligations delivered to the Trustee
hereunder), whether real, personal or mixed, of a character
which does not come within the definition of Property
Additions contained in Section 4 hereof without regard to
whether such property was acquired by the Company before or
after June 30, 1994 or actually constructed or created before
or after such date; any property released from the Lien hereof
pursuant to the provisions hereof without regard to whether
such property is still owned by the Company;
The amendment of Article XIX of the Mortgage to read
substantially as follows:
ARTICLE XIX.
Meetings and Consents of
Bondholders.
SECTION 107.
Modifications and alterations of this Indenture and/or of any
indenture supplemental hereto and/or of the rights and
obligations of the Company and/or of the rights of the holders
of bonds and coupons issued hereunder may be made as provided
in this Article XIX.
SECTION 108. The Corporate Trustee may at any
time call a meeting of the holders of bonds of one or more, or
all, series and it shall call such a meeting on written
request of the Company, given pursuant to a Resolution of its
Board of Directors, or a resolution of the holders of a
majority or more in principal amount of the bonds of such
series Outstanding hereunder, considered as one class, at the
time of such request. In the event of the Corporate Trustee's
failing for ten (10) days to call a meeting after being
thereunto requested by the Company or bondholders as above set
forth, holders of Outstanding bonds in the amount above
specified in this Section or the Company, pursuant to
Resolution of its Board of Directors, may call such meeting.
Every such meeting called by and at the instance of the
Corporate Trustee shall be held in the Borough of Manhattan,
The City of New York, or with the written approval of the
Company, at any other place in the United States of America,
and written notice thereof, stating the place and time thereof
and in general terms the business to be submitted, shall be
mailed by the Corporate Trustee not less than thirty (30) days
before such meeting (a) to each registered holder of bonds of
the series in respect of which such meeting is being called,
then Outstanding hereunder addressed to him at his address
appearing on the registry books, (b) to all other holders of
bonds of such series then Outstanding hereunder the names and
addresses of whom are preserved by the Corporate Trustee as
required by the provisions of Section 43 hereof and (c) to the
Company addressed to it at _____________________ (or at such
other address as may be designated by the Company from time to
time), and, if any bonds of such series shall not be in fully
registered form, shall be published by the Corporate Trustee
at least once a week for four (4) successive calendar weeks
immediately preceding the meeting, upon any secular day of
each such calendar week, which need not be the same day of
each week, in a Daily Newspaper, printed in the English
language, and published and of general circulation in The City
of New York; provided, however, that, if such notice by
publication shall have been given, the mailing of such notice
to any bondholders shall in no case be a condition precedent
to the validity of any action taken at such meeting. Any
meeting of holders of the bonds of one or more, or all, series
shall be valid without notice if the holders of all bonds of
such series then Outstanding hereunder are present in person
or by proxy and if the Company and the Corporate Trustee are
present by duly authorized representatives, or if notice is
waived in writing before or after the meeting by the Company,
the holders of all bonds of such series Outstanding hereunder
and by the Corporate Trustee, or by such of them as are not
present in person or by proxy.
SECTION 109. Officers and nominees of the
Corporate Trustee and of the Company and of the Co-Trustee or
their or its nominees may attend such meeting, but shall not
as such be entitled to vote thereat. Attendance by
bondholders may be in person or by proxy. In order that the
holder of any bond payable to bearer and his proxy may attend
and vote without producing his bond, the Corporate Trustee,
with respect to any such meeting, may make and from time to
time vary such regulations as it shall think fit for deposit
of bonds with, (i) any bank or trust or insurance company, or
(ii) any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization, or similar
fund or funds, or (iii) the United State of America, any
Territory thereof, the District of Columbia, any State of the
United States, any municipality in any State of the United
States or any public instrumentality of the United States, any
State or Territory, or (iv) any other person or corporation
satisfactory to the Corporate Trustee, and for the issue to
the persons depositing the same of certificates by such
depositaries entitling the holders thereof to be present and
vote at any such meeting and to appoint proxies to represent
them and vote for them at any such meeting in the same way as
if the persons so present and voting, either personally or by
proxy, were the actual bearers of the bonds in respect of
which such certificates shall have been issued and any
regulations so made shall be binding and effective. A
bondholder in any of the foregoing categories may sign such a
certificate in his own behalf. In lieu of or in addition to
providing for such deposit, the Corporate Trustee may, in its
discretion, permit such institutions to issue certificates
stating that bonds were exhibited to them, which certificates
shall entitle the holders thereof to vote at any meeting only
if the bonds with respect to which they are issued are not
produced at the meeting by any other person and are not at the
time of the meeting registered in the name of any other
person. Each such certificate shall state the date on which
the bond or bonds in respect of which such certificate shall
have been issued were deposited with or exhibited to such
institution and the series, maturities and serial numbers of
such bonds. A bondholder in any of the foregoing categories
may sign such a certificate in his own behalf. In the event
that two or more such certificates shall be issued with
respect to any bond or bonds, the certificate bearing the
latest date shall be recognized and be deemed to supersede any
certificate or certificates previously issued with respect to
such bond or bonds. If any such meeting shall have been
called under the provisions of Section 108 hereof, by
bondholders or by the Company, and the Corporate Trustee shall
fail to make regulations as above authorized, then regulations
to like effect for such deposit, or exhibition of bonds and
the issue of certificates by (i) any bank or trust or
insurance company, or (ii) any trustee, secretary,
administrator or other proper officer of any pension, welfare,
hospitalization, or similar fund or funds, or (iii) by the
United States of America, any Territory thereof, the District
of Columbia, any State of the United States, any municipality
in any State of the United States or any public
instrumentality of the United States, any State or Territory
shall be similarly binding and effective for all purposes
hereof if adopted or approved by the bondholders calling such
meeting or by the Board of Directors of the Company, if such
meeting shall have been called by the Company, provided that
in either such case copies of such regulations shall be filed
with the Corporate Trustee. A bondholder in any of the
foregoing categories may sign such a certificate in his own
behalf.
SECTION 110. Subject to the restrictions
specified in Sections 109 and 113 hereof, any registered
holder of bonds Outstanding hereunder and any holder of a
certificate provided for in Section 109 hereof relating to
bonds Outstanding hereunder, in either case of the series in
respect of which a meeting shall have been called, shall be
entitled in person or by proxy to attend and vote at such
meeting as a holder of the bonds registered or certified in
the name of such holder without producing such bonds. All
others seeking to attend or vote at such meeting in person or
by proxy must, if required by any authorized representative of
the Corporate Trustee or the Company or by any other
bondholder, produce the bonds claimed to be owned or
represented at such meeting and every one seeking to attend or
vote shall, if required as aforesaid, produce such further
proof of bond ownership or personal identity as shall be
satisfactory to the authorized representative of the Corporate
Trustee, or if none be present then to the Inspectors of Votes
hereinafter provided for. Proxies shall be witnessed or in
the alternative may (a) have the signature guaranteed by a
bank or trust company or a registered dealer in securities,
(b) be acknowledged before a Notary Public or other officer
authorized to take acknowledgements, or (c) have their gen
uineness otherwise established to the satisfaction of the
Inspector of Votes. All proxies and certificates presented at
any meeting shall be delivered to said Inspectors of Votes and
filed with the Corporate Trustee.
SECTION 111. Persons nominated by the
Corporate Trustee if it is represented at the meeting shall
act as temporary Chairman and Secretary, respectively, of the
meeting, but if the Corporate Trustee shall not be represented
or shall fail to nominate such persons or if any person so
nominated shall not be present, the bondholders and proxies
present shall by a majority vote of bonds represented elect
another person or other persons from those present to act as
temporary Chairman and/or Secretary. A permanent Chairman and
a permanent Secretary of such meeting shall be elected from
those present by the bondholders and proxies present by a
majority vote of bonds represented. The Corporate Trustee, if
represented at the meeting, shall appoint two Inspectors of
Votes who shall decide as to the right of anyone to vote and
shall count all votes cast at such meeting, except votes on
the election of a Chairman and Secretary, both temporary and
permanent, as aforesaid, and who shall make and file with the
permanent Secretary of the meeting their verified written
report in duplicate of all such votes so cast at said meeting.
If the Corporate Trustee shall not be represented at the
meeting or shall fail to nominate such Inspectors of Votes or
if either Inspector of Votes fails to attend the meeting, the
vacancy shall be filled by appointment by the permanent
Chairman of the meeting.
SECTION 112. The holders of a majority in
aggregate principal amount of the bonds Outstanding hereunder
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 bonds of
such series; and provided, further, 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 bonds
of such series Outstanding hereunder, considered as one class,
the holders of such specified percentage in principal amount
of the bonds of such series Outstanding hereunder, 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 bonds of such series, be dissolved. In any other
case the meeting may be adjourned for such period or periods
as may be determined by the chairman of the meeting prior to
the adjournment thereof.
SECTION 113. Any modification or alteration of
this Indenture and/or of any indenture supplemental hereto
and/or of the rights and obligations of the Company and/or the
rights of the holders of bonds and/or coupons issued hereunder
in any particular may be made at a meeting of bondholders duly
convened and held in accordance with the provisions of this
Article, but only by resolution duly adopted by the
affirmative vote of the holders of a majority in principal
amount of the bonds Outstanding hereunder, considered as one
class (or, if such modification or alteration shall directly
affect the holders of bonds of one or more, but less than all,
series then Outstanding hereunder, then the affirmative vote
only of the holders of a majority in aggregate principal
amount of the bonds of the series so directly affected then
Outstanding hereunder, considered as one class), when such
meeting is held, and in every case approved by Resolution of
the Board of Directors of the Company as hereinafter
specified; provided, however, that no such modification or
alteration shall, without the consent of the holder of any
bond issued hereunder affected thereby, permit (1) the
extension of the maturity of the principal of, or interest on,
such bonds, or (2) the reduction in such principal or the rate
of interest thereon or any other modification in the terms of
payment of such principal or interest, or (3) the creation of
any lien ranking prior to, or on a parity with, the Lien of
this Indenture with respect to any of the Mortgaged and
Pledged Property, or (4) the deprivation of any non-assenting
bondholder of a lien upon the Mortgaged and Pledged Property
for the security of his bonds (subject only to Excepted Encum
brances) or (5) the reduction of the percentage required by
the provisions of this Section for the taking of any action
under this Section with respect to any bond Outstanding
hereunder. For all purposes of this Article, the Trustees
shall be entitled to rely upon an Opinion of Counsel with
respect to the extent, if any, as to which any action taken at
such meeting affects the rights under this Indenture or under
any indenture supplemental hereto of any holders of bonds then
Outstanding hereunder.
Bonds owned and/or held by and/or for account
of and/or for the benefit or interest of the Company, or any
corporation of which the Company shall own twenty-five per
centum (25%) or more of the outstanding voting stock, shall
not be deemed Outstanding for the purpose of any vote or of
any calculation of bonds Outstanding in Article XVI hereof or
in this Article XVIII or for the purpose of the quorum
provided for in Section 112 of this Article; provided,
however, that bonds so owned or held which have been pledged
in good faith may be regarded as Outstanding for purposes of
this paragraph if the pledgee establishes to the satisfaction
of the Corporate Trustee the pledgee's right to vote or give
consents with respect to such bonds and that the pledgee is
not the Company or a corporation of which the Company shall
own twenty-give per centum (25%) or more of the outstanding
voting stock. For all purposes of this Indenture, the Cor
porate Trustee, the Chairman and Secretary of any meeting held
pursuant to the provisions of this Article XIX and the
Inspectors of Votes at any such meeting shall (unless the fact
is challenged at such meeting by any holder of bonds
Outstanding hereunder entitled to vote at such meeting and a
contrary fact is established) be entitled conclusively to rely
upon a notification in writing by the Company, specifying the
principal amount of bonds Outstanding hereunder owned by or
held by or for the account of or for the benefit or interest
of the Company or any corporation of which the Company shall
own twenty-five per centum (25%) or more of the outstanding
voting stock, or stating that no such bonds are so owned or
held. In case the meeting shall have been called otherwise
than on the written request of the Company, the Corporate
Trustee shall be entitled conclusively to assume that none of
the bonds Outstanding hereunder is so owned or held unless a
notification by the Company is furnished as in this paragraph
provided or unless the fact is challenged at such meeting by
any holder of bonds Outstanding hereunder and a contrary fact
is established.
SECTION 114. A record in duplicate of the
proceedings of each meeting of bondholders shall be prepared
by the permanent Secretary of the meeting and shall have
attached thereto the original reports of the Inspectors of
Votes, and affidavits by one or more persons having knowledge
of the facts showing a copy of the notice of the meeting, and
showing that said notice was mailed and published as provided
in Section 108 hereof. Such record shall be signed and
verified by the affidavit of the permanent Chairman and the
permanent Secretary of the meeting, and one duplicate thereof
shall be delivered to the Company and the other to the
Corporate Trustee for preservation by the Corporate Trustee.
Any record so signed and verified shall be proof of the
matters therein stated, and if such record shall also be
signed and verified by the affidavit of a duly authorized
representative of the Corporate Trustee, such meeting shall be
deemed conclusively to have been duly convened and held and
such record shall be conclusive, and any resolution or
proceeding stated in such record to have been adopted or
taken, shall be deemed conclusively to have been duly adopted
or taken by such meeting. A true copy of any resolution
adopted by such meeting shall be mailed by the Corporate
Trustee to all holders of bonds Outstanding hereunder, the
names and addresses of whom are then preserved by the
Corporate Trustee pursuant to the provisions of Section 43
hereof, and proof of such mailing by the affidavit of some
person having knowledge of the fact shall be filed with the
Corporate Trustee, but failure to mail copies of such
resolution as aforesaid shall not affect the validity thereof.
No such resolution shall be binding until and unless such
resolution is approved by Resolution of the Board of Directors
of the Company, of which such Resolution of approval, if any,
it shall be the duty of the Company to file a copy certified
by the Secretary or an Assistant Secretary of the Company with
the Corporate Trustee, but if such Resolution of the Board of
Directors of the Company is adopted and a certified copy
thereof is filed with the Corporate Trustee, the resolution so
adopted by such meeting shall (to the extent permitted by law)
be deemed conclusively to be binding upon the Company, the
Trustees and the holders of all bonds and coupons issued
hereunder, at the expiration of sixty (60) days after such
filing, except in the event of a final decree of a court of
competent jurisdiction setting aside such resolution, or
annulling the action taken thereby in a legal action or
equitable proceeding for such purposes commenced within such
sixty (60) day period; provided, however, that no such
resolution of the bondholders, or of the Company, shall in any
manner be so construed as to change or modify any of the
rights, immunities, or obligations of the Trustees or either
of them without their, its or his written assent thereto.
SECTION 115. Bonds authenticated and delivered
after the date of any bondholders' meeting may bear a notation
in form approved by the Corporate Trustee as to the action
taken at meetings of bondholders theretofore held, and upon
demand of the holder of any bond Outstanding at the date of
any such meeting and presentation of his bond for the purpose
at the principal office of the Corporate Trustee, the Company
shall cause suitable notation to be made on such bond by
endorsement or otherwise as to any action taken at any meeting
of bondholders theretofore held. If the Company or the
Corporate Trustee shall so determine, new bonds so modified as
in the opinion of the Corporate Trustee and the Board of
Directors of the Company to conform to such bondholders'
resolution shall be prepared, authenticated and delivered, and
upon demand of the holder of any bond then Outstanding and
affected thereby shall be exchanged without cost to such
bondholders for bonds then Outstanding hereunder upon
surrender of such bonds with all unmatured coupons, if any,
appertaining thereto. The Company or the Corporate Trustee
may require bonds Outstanding to be presented for notation or
exchange as aforesaid if either shall see fit to do so.
Instruments supplemental to this Indenture embodying any
modification or alteration of this Indenture or of any
indenture supplemental hereto made at any bondholders' meeting
and approved by Resolution of the Board of Directors of the
Company, as aforesaid, may be executed by the Trustees and the
Company and upon demand of the Corporate Trustee, or if so
specified in any resolution adopted by any such bondholders'
meeting, shall be executed by the Company and the Trustees.
Any instrument supplemental to this Indenture
executed pursuant to the provisions of this Section, shall
comply with all applicable provisions of the Trust Indenture
Act of 1939 as in force on the date of the execution of such
supplemental indenture.
SECTION 116. (A) Anything in this Article XIX
contained to the contrary notwithstanding, the Corporate
Trustee shall receive the written consent (in any number of
instruments of similar tenor executed by bondholders or by
their attorneys appointed in writing) of the holders of a
majority in principal amount of the bonds Outstanding
hereunder, considered as one class (or, if any action proposed
to be taken shall directly affect the holders of bonds of one
or more, but less than all, series then Outstanding hereunder,
then the consent only of the holders of a majority in
aggregate principal amount of bonds of the series so directly
affected then Outstanding hereunder, considered as one class),
at the time the last such needed consent is delivered to the
Corporate Trustee, in lieu of the holding of a meeting
pursuant to this Article XIX and in lieu of all action at such
a meeting and with the same force and effect as a resolution
duly adopted in accordance with the provisions of Section 113
hereof.
(B) Instruments of consent shall be witnessed
or in the alternative may (a) have the signature guaranteed by
a bank or trust company or a registered dealer in securities,
(b) be acknowledged before a Notary Public or other officer
authorized to take acknowledgments, or (c) have their
genuineness otherwise established to the satisfaction of the
Corporate Trustee.
The amount of bonds payable to bearer, and the
series and serial numbers thereof, held by a person executing
an instrument of consent (or whose attorney has executed an
instrument of consent in his behalf), and the date of his
holding the same, may be proved by exhibiting the bonds to and
obtaining a certificate executed by (i) any bank or trust or
insurance company organized under the laws of the United
States of America or of any State thereof, or (ii) any
trustee, secretary, administrator or other proper officer of
any pension, welfare, hospitalization or similar fund or
funds, or (iii) the United States of America, any Territory
thereof, the District of Columbia, any State of the United
States, any municipality in any State of the United States or
any public instrumentality of the United States, or of any
State or of any Territory, or (iv) any other person or
corporation satisfactory to the Corporate Trustee. A
bondholder in any of the foregoing categories may sign a
certificate in his own behalf.
Each such certificate shall be dated and shall
state in effect that as of the date thereof a coupon bond or
bonds bearing a specified serial number or numbers was
exhibited to the signer of such certificate. The holding by
the person named in any such certificate of any bonds speci
fied therein shall be presumed to continue unless (1) any
certificate bearing a later date issued in respect of the same
bond shall be produced, (2) the bond specified in such
certificate (or any bond or bonds issued in exchange or
substitution for such bond) shall be produced, or (3) the bond
specified in such certificate shall be registered as to
principal in the name of another holder or shall have been
surrendered in exchange or a fully registered bond registered
in the name of another holder. The Corporate Trustee may
nevertheless in its discretion require further proof in cases
where it deems further proof desirable. The ownership of
registered bonds shall be proved by the registry books.
(C) Until such time as the Corporate Trustee
shall receive the written consent of the necessary per centum
in principal amount of the bonds required by the provisions of
subsection (A) above for action contemplated by such consent,
any holder of a bond, the serial number of which is shown by
the evidence to be included in the bonds the holders of which
have consented to such action, may, by filing written notice
with the Corporate Trustee at its principal office and upon
proof of holding as provided in subsection (B) above, revoke
such consent so far as it concerns such bond. Except as
aforesaid, any such action taken by the holder of any bond
shall be conclusive and binding upon such holder and upon all
future holders of such bond (and any bond issued in lieu
thereof or exchanged therefor), irrespective of whether or not
any notation of such consent is made upon such bond, and in
any event any action taken by the holders of the percentage in
aggregate principal amount of the bonds specified in
subsection (A) above in connection with such action shall be
conclusively binding upon the Company, the Corporate Trustee
and the holders of all the bonds.
The amendment of Section 5 to replace the first two
paragraphs thereof with three paragraphs reading substantially as
follows:
The term "Funded Property Certificate" shall
mean an Independent Engineer's Certificate delivered to the
Corporate Trustee, within ninety days after the date thereof,
(A) stating the aggregate principal amount
of bonds then Outstanding under this Indenture;
(B) stating the aggregate principal amount
of bonds which the Company is then entitled to have
authenticated and delivered by compliance with the provisions
of Section 29 hereof;
(C) stating an amount equal to 10/7 of the
sum of the amounts stated in clauses (A) and (B) above;
(D) describing all or any portion of the
Mortgaged and Pledged Property which, in the opinion of the
signers, has an aggregate Fair Value not less than the amount
stated in clause (C) above.
The term "Funded Property" shall mean:
(1) all Mortgaged and Pledged Property
described in the most recent Funded Property Certificate
delivered to the Corporate Trustee;
(2) all Property Additions to the extent
that the same shall have been made the basis of the
authentication and delivery of bonds under this Indenture
after the date of the most recent Funded Property Certificate
delivered to the Corporate Trustee;
(3) all Property Additions to the extent
that the same shall have been made the basis of the release of
property from the Lien of this Indenture after the date of the
most recent Funded Property Certificate delivered to the
Corporate Trustee, subject, however, to the provisions of
Section 59 hereof;
(4) all Property Additions to the extent
that the same shall have been substituted (otherwise than
under the release or cash withdrawal provisions hereof) for
Funded Property retired after the date of the most recent
Funded Property Certificate delivered to the Corporate
Trustee; and
(5) all Property Additions to the extent
that the same shall have been made the basis of the withdrawal
of any Funded Cash as hereinafter defined after the date of
the most recent Funded Property Certificate delivered to the
Corporate Trustee, except to the extent that any such Property
Additions shall no longer be deemed to be Funded Property in
accordance with the provisions of other Sections of this
Indenture.
In the event that in any certificate filed with
the Corporate Trustee in connection with any of the
transactions referred to in clauses (2), (3) and (5) of this
Section only a part of the Cost or fair value of the Property
Additions described in such certificate shall be required for
the purposes of such certificate, then such Property Additions
shall be deemed to be Funded Property only to the extent so
required for the purpose of such certificate.
Collateral Trust Provisions
(a) The amendment of Section 2 of the Mortgage to
add at the end of such Section ____ new paragraphs, reading
substantially as follows:
"Class A Bonds" means bonds or other
obligations now or hereafter issued and Outstanding under any
Class A Mortgage or Mortgages.
"Class A Mortgage" means each mortgage or deed
of trust or similar indenture, as amended and supplemented
from time to time, (i) to which any corporation that is
subsequently merged into or consolidated with the Company was
a party at the time of such merger or consolidation or (ii)(A)
which constitutes a Lien on property conveyed or otherwise
transferred to the Company and (B) the obligations of the
mortgagor under which have been duly assumed by the Company,
and, in the case of either (i) or (ii) above, which is
hereafter designated an additional Class A Mortgage in an
indenture supplemental hereto executed and delivered in
accordance with Section 136.
"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 bonds which (a) are
of the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"Outstanding", when used with respect to Class
A Bonds, has the meaning specified in the related Class A
Mortgage.
(b) The amendment of clause (c) in the last
paragraph of Section 5 to add substantially the following
text:
any cash received by the Trustee from the payment of
the principal of Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131;
(c) The amendment of clause (iii) of subparagraph
(B) of the first paragraph of Section 7 to read substantially
as follows:
(iii) all Qualified Lien Bonds
which will be Outstanding immediately after the authentication
of the bonds then applied for in pending applications,
including the application in connection with which such
certificate is made; all Class A Bonds Outstanding under Class
A Mortgages at the date of such certificate, except any
delivered to and held by the Trustee pursuant to Sections 130
and 131 and except any for the payment or redemption of which
the bonds applied for are to be issued; provided, however,
that, if the Outstanding Class A Bonds of any series bear
interest at a variable rate or rates, then the interest
requirement on the Class A Bonds of such series shall be
determined by reference to the rate or rates in effect on the
date next preceding the date of the initial authentication and
delivery of the bonds then applied for in the application in
connection with which the Net Earning Certificate is made; and
(d) The amendment of Section 36 of the Mortgage to
add the words "and the liens of Class A Mortgages" after the
words "other than Excepted Encumbrances" in such Section and
to add the words "(including, but not limited to the lien of
any Class A Mortgage)" after the words "any lien thereon at
the time of the acquisition thereof" in such Section.
(e) The amendment of the Mortgage to add a new
Article XXI to read substantially as follows:
ARTICLE XXI
Class A Bonds; Additional Class A Mortgages;
Issuance of Bonds on the Basis of Class A Bonds
Discharge of Class A Mortgage
SECTION 130. Issuance of Bonds on the Basis of Class A Bonds.
(a) Bonds of any one
or more series may be authenticated and delivered on the basis
of, and in an aggregate principal amount not exceeding, the
aggregate principal amount of Class A Bonds delivered to the
Trustee for such purpose.
(b) Bonds of any
series shall be authenticated and delivered by the Trustee on
the basis of the delivery to the Trustee of Class A Bonds
which have not theretofore been made the basis of the
authentication and delivery of bonds hereunder, upon receipt
by the Trustee of:
(i) Class A
Bonds (A) maturing (or being subject to mandatory redemption)
on such dates and in such principal amounts that, at each
Stated Maturity of the bonds of such series (or the Tranche
thereof then to be authenticated and delivered), there shall
mature (or be redeemed) Class A Bonds equal in principal
amount to the bonds of such series or Tranche then to mature
and (B) containing, in addition to any mandatory redemption
provisions applicable to all Class A Bonds Outstanding under
the related Class A Mortgage and any mandatory redemption
provisions contained therein pursuant to clause (A) above,
mandatory redemption provisions correlative to the provisions,
if any, for the mandatory redemption (pursuant to a sinking
fund or otherwise) of the bonds of such series or Tranche or
for the redemption thereof at the option of the Holder; it
being expressly understood that such Class A Bonds (X) may,
but need not, bear interest, (Y) may, but need not, contain
provisions for the redemption thereof at the option of the
Company, any such redemption to be made at a redemption price
or prices not less than the principal amount thereof and (Z)
shall be held by the Trustee in accordance with Article XXI;
(ii) the documents with respect to the
bonds of such series specified in clauses (1), (2), (6), (8)
and (10) of Section 28; provided, however, that no Net
Earnings Certificate shall be required to be delivered if
there shall be delivered an Officers' Certificate to the
effect that such Class A Bonds have been authenticated and
delivered under the related Class A Mortgage on the basis of
retired Class A Bonds; and
(iii) an Opinion of Counsel to the
effect that:
(A) the form or forms of such
Class A Bonds have been duly authorized by the Company and
have been established in conformity with the provisions of the
related Class A Mortgage;
(B) the terms of such Class A
Bonds have been duly authorized by the Company and have been
established in conformity with the provisions of the related
Class A Mortgage; and
(C) (I) such Class A Bonds have
been duly authenticated and delivered by the trustee under the
related Class A Mortgage and (II) when the bonds to be
authenticated and delivered on the basis of the delivery to
the Trustee of such Class A Bonds shall have been
authenticated and delivered by the Trustee in accordance with
this Indenture and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, such Class A Bonds will constitute valid obli
gations of the Company, entitled to the benefit of the Lien of
such Class A Mortgage equally and ratably with all other Class
A Bonds then Outstanding under such Class A Mortgage.
No bonds shall be authenticated or delivered
under Section 29 hereof on the basis of any retired bonds
theretofore authenticated and delivered on the basis of Class
A Bonds pursuant to this Section until the Class A Mortgage
under which such Class A Bonds were delivered has been
discharged pursuant to the provisions thereof.
SECTION 131. Registration and Ownership of Class A Bonds.
Class A Bonds delivered to the Trustee pursuant
to Section 130 shall be registered in the name of the Trustee
or its nominee and shall be owned and held by the Trustee,
subject to the provisions of this Indenture, for the benefit
of all bonds from time to time Outstanding, and the Company
shall have no interest therein. The Trustee shall be entitled
to exercise all rights of securityholders under each Class A
Mortgage either in its discretion or as otherwise provided in
this Article or in Article XIII.
SECTION 132. Payments on Class A Bonds.
(a) Any payment by the Company of principal of
or premium or interest on any Class A Bonds delivered to and
held by the Trustee pursuant to Sections 130 and 131 shall be
applied by the Trustee to the payment of any principal,
premium or interest, as the case may be, in respect of the
bonds which is then due, and, to the extent of such
application, the obligation of the Company hereunder to make
such payment in respect of the bonds shall be deemed to have
been satisfied and discharged.
If, at the time of any such payment of
principal of Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131, there shall be no
principal then due in respect of the bonds, such payment in
respect of such Class A Bonds shall be deemed to constitute
Funded Cash and shall be held by the Trustee as part of the
Mortgaged and Pledged Property, to be withdrawn, used or
applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in Section 130; and
thereafter the bonds authenticated and delivered on the basis
of such Class A Bonds shall, to the extent of such payment of
principal, be deemed to have been authenticated and delivered
on the basis of the deposit of cash.
If, at the time of any such payment of premium
or interest on Class A Bonds delivered to and held by the
Trustee pursuant to Sections 130 and 131, there shall be no
premium or interest, as the case may be, then due in respect
of the bonds, such payment in respect of such Class A Bonds
shall be remitted to the Company upon receipt by the Trustee
of a Company Order requesting the same, together with an
Officers' Certificate stating that no Default has occurred and
is continuing; provided, however, that, if a Default shall
have occurred and be continuing, such proceeds shall be held
as part of the Mortgaged Property until such Default shall
have been cured or waived.
(b) Any payment by the Company hereunder of
principal of or premium or interest on bonds which shall have
been authenticated and delivered upon the basis of the
delivery to the Trustee of Class A Bonds (other than by the
application of the proceeds of a payment in respect of such
Class A Bonds) shall, to the extent thereof, be deemed, for
all purposes of this Indenture, to satisfy and discharge the
obligation of the Company, if any, to make a payment of
principal, premium or interest, as the case may be, in respect
of such Class A Bonds which is then due.
(c) The Trustee hereby waives notice of any
redemption of Class A Bonds delivered to it pursuant to
Section 402.
SECTION 133. Surrender of Class A Bonds.
At the time any bonds which shall have been
authenticated and delivered on the basis of the delivery to
the Trustee of Class A Bonds cease to be Outstanding (other
than as a result of the application of the proceeds of the
payment or redemption of such Class A Bonds), the Trustee
shall surrender to, or upon the order of, the Company an equal
principal amount of such Class A Bonds.
SECTION 134. No Transfer of Class A Bonds.
Anything in this Indenture to the contrary
notwithstanding, the Trustee shall not sell, assign or
otherwise transfer any Class A Bonds delivered to and held by
it pursuant to Sections 130 and 131 except to a successor
trustee under this Indenture and except as provided in Section
133. The Company may take such actions as it shall deem
necessary, desirable or appropriate to effect compliance with
such restrictions on transfer, including the placing of a
legend on each such Class A Bond and the issuance of stop-
transfer instructions to the trustee under the related Class A
Mortgage or any other transfer agent thereunder.
SECTION 135. Voting of Class A Bonds.
The Trustee shall, as the holder of Class A
Bonds delivered to and held by it pursuant to Sections 130 and
131, attend such meeting or meetings of bondholders under each
Class A Mortgage or, at its option, deliver its proxy in con
nection therewith, as relate to matters with respect to which
it, as such holder, is entitled to vote or consent. So long
as no Default hereunder shall have occurred and be continuing,
either at any such meeting or meetings, or otherwise when the
consent of the holders of the Class A Bonds Outstanding under
any Class A Mortgage is sought without a meeting, the Trustee
shall vote as holder of Class A Bonds delivered to and held by
it pursuant to Sections 130 and 131 which were delivered under
such Class A Mortgage, or shall consent with respect thereto,
as follows:
(a) with respect to any amendments or
modifications of any Class A Mortgage, the Trustee shall vote
all such Class A Bonds delivered under such Class A Mortgage,
or shall consent with respect thereto, proportionately with
the vote or consent of the holders of all other Class A Bonds
Outstanding under such Class A Mortgage the holders of which
are eligible to vote or consent, as indicated in a Class A
Bondholder's Certificate delivered to the Trustee.
For purposes of this Section, "Class A
Bondholder's Certificate" means a certificate signed by the
temporary chairman, the temporary secretary, the permanent
chairman, the permanent secretary, or an inspector of votes at
any meeting or meetings of bondholders under a Class A
Mortgage, or by the trustee under such Class A Mortgage in the
case of consents of such bondholders which are sought without
a meeting, which states what the signer thereof reasonably
believes will be the proportionate votes or consents of the
holders of all Class A Bonds (other than the Class A Bonds
delivered to and held by the Trustee pursuant to Sections 130
and 131) outstanding under such Class A Mortgage and counted
for the purposes of determining whether such bondholders have
approved or consented to the matter put before them.
SECTION 136. Designation of Additional Class A
Mortgages.
(a) In the event that, after the date of the
execution and delivery of this Indenture, a corporation which
was the mortgagor under a mortgage, deed of trust or similar
indenture shall have merged into or consolidated with the
Company, or shall have conveyed or otherwise transferred
property to the Company subject to the lien of such a
mortgage, deed of trust or similar indenture and the Company
shall have duly assumed and agreed to perform and pay all the
obligations of the mortgagor thereunder, such mortgage, deed
of trust or similar indenture may be designated an additional
Class A Mortgage upon delivery to the Trustee of the
following:
(i) a Company Order authorizing the
designation of such mortgage, deed of trust or similar
indenture as an additional Class A Mortgage;
(ii) an Officers' Certificate (A) stating
that no event has occurred and is continuing which entitles
the trustee under such mortgage, deed of trust or similar
indenture to accelerate the maturity of the obligations
outstanding thereunder, (B) reciting the aggregate principal
amount of obligations theretofore issued under such mortgage,
deed of trust or similar indenture and the aggregate principal
amount of obligations then outstanding thereunder and (C)
either (1) stating that the terms of such mortgage, deed of
trust or similar indenture, as then in effect, do not permit
the issuance of obligations thereunder upon the basis of
property additions in a principal amount exceeding seventy per
centum (70%) of the balance of the cost or fair value of such
property additions to the issuer thereof (whichever shall be
less) after making deductions and additions similar to those
provided for in Section 4, or (2) in the event that the
statements contained in clause (1) above cannot be made,
stating that the Company has irrevocably waived its right to
the authentication and delivery of further obligations under
such mortgage, deed of trust or similar indenture (I) on any
basis, in a principal amount equal to the excess of (x) the
aggregate principal amount of obligations then outstanding
under such mortgage, deed of trust or similar indenture which
were issued on the basis of property additions or on the basis
of the retirement of obligations which were issued (whether
directly or indirectly when considered in light of the
successive issuance and retirement of obligations) on the
basis of property additions over (y) an amount equal to
seventy per centum (70%) of the aggregate Dollar amount of
property additions certified as the basis for the issuance of
such obligations then outstanding and (II) on the basis of
property additions, in a principal amount exceeding seventy
per centum (70%) of the balance of the Cost or Fair Value to
the Company thereof (whichever shall be less) after making
deductions and additions similar to those provided for in
Section 4; and
(iii) an Opinion or Opinions of
Counsel to the effect that (A) the corporation that was the
mortgagor under such mortgage, deed of trust or similar
indenture has been duly and lawfully merged into or
consolidated with the Company or has duly and lawfully
conveyed or otherwise transferred property to the Company; (B)
the Company has duly assumed and agreed to perform and pay the
obligations of the mortgagor under such mortgage, deed of
trust or similar indenture; (C) such mortgage, deed of trust
or similar indenture constitutes a lien upon the property
described therein subject to no lien prior thereto except
liens generally of the character of Excepted Encumbrances and
liens permitted under Section 36 to exist or to be hereafter
created; (D) this Indenture constitutes, or, upon the delivery
of, and/or the filing and/or the recording in the proper
places and manner of, the instruments of conveyance,
assignment or transfer, if any, specified in such opinion,
will constitute, a lien on the property described in such
mortgage, deed of trust or similar indenture which is
generally of the character described in the definition of
Property Additions in Section 4 of this Indenture and which
was acquired by the Company from such corporation by virtue of
such merger, consolidation, conveyance or other transfer,
subject to no lien thereon prior to the lien of this Indenture
except the lien of such mortgage, deed of trust or similar
indenture, Excepted Encumbrances, liens generally of the
character permitted to exist or to be hereafter created under
Section 36 and, to the extent, if any, specified in such
opinion, the lien of any existing Class A Mortgage; (E) the
terms of such mortgage, deed of trust or similar indenture, as
then in effect, do not permit the further issuance of
obligations thereunder except on the basis of property
additions generally of the character of Property Additions,
the retirement or deposit of outstanding obligations, the
deposit of prior lien obligations or the deposit of cash; (F)
either (1) the terms of such mortgage, deed of trust or
similar indenture, as then in effect, do not permit the
further issuance of obligations thereunder upon the basis of
property additions in a principal amount exceeding seventy per
centum (70%) of the balance of the Cost or the Fair Value to
the Company thereof (whichever shall be less) after making
deductions and additions similar to those provided for in
Section 4, or, if such is not the case, (2) that the waivers
contemplated by clause (ii)(C)(2) above have been duly made;
(G) in the case of a conveyance or other transfer to the
Company of property subject to the lien of such mortgage, deed
of trust or similar indenture, no person, corporation or other
entity (other than the Company) has the right to issue or
redeem obligations secured by, or to obtain the release of
property from the lien of, such mortgage, deed of trust or
similar indenture; and (H) the indenture supplemental hereto
referred to in clause (i) of subsection (b) of this Section
complies with the requirements of said clause (i), and the
indenture supplemental to such mortgage, deed of trust or
similar indenture referred to in clause (ii) of subsection (b)
of this Section complies with the requirements of said clause
(ii).
(b) At such time as there shall have been
executed and delivered and properly recorded and filed:
(i) an indenture supplemental hereto (A)
in which such mortgage, deed of trust or similar indenture has
been designated as an additional Class A Mortgage and (B) by
which the Company has specifically imposed the lien of this
Indenture upon properties of the character of Property
Additions as defined in this Indenture which shall have been
acquired by the Company from such corporation by virtue of the
merger, consolidation, conveyance or other transfer (and later
improvements, extensions and additions thereto and renewals
and replacements thereof) as contemplated by Section 87
hereof; and
(ii) an indenture supplemental to such
mortgage, deed of trust or similar indenture by which such
mortgage, deed of trust or similar indenture has been amended
to provide that, so long as the Trustee shall hold any
obligations outstanding thereunder which were delivered to the
Trustee as the basis for the authentication and delivery of
bonds which remain Outstanding hereunder, a Default hereunder
shall constitute a matured event of default thereunder;
provided, however, that the waiver or cure of such Default
hereunder and the rescission and annulment of the consequences
thereof shall constitute a waiver of the corresponding event
of default under such mortgage, deed of trust or similar
indenture and a rescission and annulment of the consequences
thereof,
then such mortgage, deed of trust or similar indenture
and all obligations issued and outstanding thereunder shall
for all purposes hereof be treated as a Class A Mortgage and
as Class A Bonds, respectively.
SECTION 137. Discharge of Class A Mortgage.
The Trustee shall surrender for cancellation to
the trustee under any Class A Mortgage all Class A Bonds
delivered to and then held by it pursuant to Sections 130 and
131 which were delivered under such Class A Mortgage upon
receipt by the Trustee of:
(a) a Company Order requesting such
surrender for cancellation of such Class A Bonds;
(b) an Officers' Certificate to the
effect that no Class A Bonds are Outstanding under such Class
A Mortgage other than Class A Bonds delivered to and held by
the Trustee pursuant to Sections 130 and 131 and that promptly
upon such surrender such Class A Mortgage will be satisfied
and discharged pursuant to the terms thereof;
(c) an Engineer's Certificate
(i) describing all property
constituting Property Additions designated by the Company, in
its discretion, to be deemed, on and after the date of such
surrender for cancellation and for all purposes of this
Indenture, to be Funded Property, such Property Additions to
have, in the aggregate, a Cost (or as to Property Additions of
which the Fair Value to the Company specified pursuant to
subclause (viii) or clause (d) below is less than the Cost
thereof, then such Fair Value in lieu of Cost) not less than
ten-sevenths (10/7) of the aggregate principal amount of bonds
which shall have been authenticated and delivered under
Section 130 on the basis of Class A Bonds authenticated and
delivered under such Class A Mortgage and which, at such date,
remain Outstanding;
(ii) stating that all such
property constitutes Property Additions;
(iii) stating that such
Property Additions are desirable for use in the conduct of the
business of the Company;
(iv) stating that such Property
Additions, to the extent of the Cost (or as to Property
Additions of which the Fair Value to the Company specified
pursuant to subclause (viii) or clause (d) below is less than
the Cost thereof, then such Fair Value in lieu of Cost)
thereof to be deemed to be Funded Property pursuant to this
Section, do not constitute Funded Property;
(v) stating, except as to
Property Additions acquired, made or constructed wholly
through the delivery of securities or other property, that the
amount of cash forming all or part of the Cost thereof was
equal to or more than an amount to be stated therein;
(vi) briefly describing, with
respect to any Property Additions acquired, made or
constructed in whole or in part through the delivery of
securities or other property, the securities or other property
so delivered and stating the date of such delivery;
(vii) stating what part, if
any, of such Property Additions included property which within
six (6) months prior to the date of acquisition thereof by the
Company had been used or operated by others than the Company
in a business similar to that in which it has been or is to be
used or operated by the Company and stating whether or not, in
the judgment of the signers, the Fair Value to the Company
thereof, as of the date of such certificate, is less than
Twenty-five Thousand Dollars ($25,000) and whether or not the
Fair Value to the Company thereof, as of such date, is less
than one per centum (1%) of the aggregate principal amount of
bonds then Outstanding;
(viii) stating, in the
judgment of the signers, the Fair Value to the Company, as of
the date of such certificate, of such Property Additions,
except any thereof with respect to the Fair Value to the
Company of which a statement is to be made in an Independent
Engineer's Certificate pursuant to clause (d) below; provided,
however, that if any such Property Additions shall have
theretofore been certified to the trustee under such Class A
Mortgage in connection with the authentication and delivery of
Class A Bonds thereunder, the release of property, the
withdrawal of cash or the satisfaction of the requirements of
any sinking, improvement, maintenance, replacement or similar
fund or analogous provision, then there may be stated, in lieu
of the Fair Value to the Company of such Property Additions as
of the date of such certificate, the Fair Value to the Company
thereof as so certified to the trustee under such Class A
Mortgage; it being understood that the Company may make
allocations on a pro-rata or other reasonable basis for
purposes of determining whether or not, and/or the extent to
which, any such Property Additions shall have theretofore been
so certified to the trustee under a Class A Mortgage; and
(ix) if any property included in
such Property Additions is subject to easements, restrictions,
exceptions or reservations of the character described in
clause (e) of the definition of Excepted Encumbrances, stating
that the same do not, in the judgment of the signers,
materially impair the use by the Company of the Mortgaged
Property considered as a whole; and
(x) stating the lower of the
Cost or the Fair Value to the Company of such Property
Additions, as required to be stated in such Engineer's
Certificate pursuant to clauses (i) and (viii) above,
respectively;
(xi) stating the amount equal to
seventy per centum (70%) of the amount required to be stated
pursuant to clause (x) above; and
(xii) stating the aggregate
principal amount of the bonds referred to in clause (i) above
(such amount not to exceed the amount stated pursuant to
clause (xi) above);
(d) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause (c)
above to include property which, within six months prior to
the date of acquisition thereof by the Company, had been used
or operated by others than the Company in a business similar
to that in which it has been or is to be used or operated by
the Company and such certificate does not show the Fair Value
to the Company thereof, as of the date of such certificate, to
be less than Twenty-five Thousand Dollars ($25,000) or less
than one per centum (1%) of the aggregate principal amount of
bonds then Outstanding, an Independent Engineer's Certificate
stating, in the judgment of the signer, the Fair Value to the
Company, as of the date of such Independent Engineer's
Certificate, of (x) such Property Additions which have been so
used or operated and (at the option of the Company) as to any
other Property Additions included in the Engineer's
Certificate provided for in clause (c) above and (y) any
property so used or operated which has been subjected to the
lien of this Indenture since the commencement of the then
current calendar year as the basis for the authentication and
delivery of bonds and as to which an Independent Engineer's
Certificate has not previously been furnished to the Trustee;
(e) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause (c)
above to have been acquired, made or constructed in whole or
in part through the delivery of securities or other property,
an Engineer's Certificate stating, in the judgment of the
signers, the fair market value in cash of such securities or
other property at the time of delivery thereof in payment for
or for the acquisition of such Property Additions;
(f) an Opinion of Counsel to the effect
that:
(i) this Indenture constitutes,
or, upon (x) the satisfaction and discharge of such Class A
Mortgage and/or (y) the delivery of, and/or the filing and/or
recording in the proper places and manner of, the instruments
of conveyance, assignment or transfer, if any, specified in
said opinion, will constitute, a lien on all the Property
Additions to be deemed to be Funded Property in accordance
with this Section, subject to no lien thereon prior to the
lien of this Indenture except Excepted Encumbrances; and
(ii) the Company has corporate
authority to operate such Property Additions;
(g) an Opinion of Counsel to the effect
that upon satisfaction and discharge of such Class A Mortgage
the lien of this Indenture on the property formerly subject to
the lien of such Class A Mortgage, to the extent the same is
part of the Mortgaged and Pledged Property, will be subject to
no lien prior to the lien of this Indenture except Excepted
Encumbrances and liens of the character permitted to exist or
to be hereafter created under Section 36; and
(h) copies of the instruments of
conveyance, assignment and transfer, if any, specified in the
Opinion of Counsel provided for in clause (f) above.
SECTION 138. Defaults under Class A Mortgages.
In addition to every other right and remedy
provided herein, the Trustee may (but shall not be obligated
to) exercise any right or remedy available to the Trustee in
its capacity as owner and holder of Class A Bonds which arises
as a result of a default or matured event of default under any
Class A Mortgage, whether or not a Default shall then have
occurred and be continuing.
The Trustee shall give to the trustee under
each Class A Mortgage a copy of each notice of default given
to the bondholders pursuant to Section 66 hereof. In
addition, the Trustee shall give to the bondholders copies of
each notice of default under any Class A Mortgage given to the
Trustee in its capacity as owner and holder of Class A Bonds
delivered thereunder.
The amendment of the Mortgage to add a new Section which
reads substantially as follows:
Section ____. Nothing in this Indenture shall
prevent the Company from implementing a corporate division,
whereby all or substantially all of the Company's assets and
liabilities, including the bonds then Outstanding under this
Indenture, are divided among two or more successor
corporations, one of which may be the Company, provided that
the following conditions are met:
(A) the Company shall deliver an Independent
Engineer's Certificate to the Trustee, dated not more than
ninety days prior to such corporate division,
(1) stating the Fair Value, in the opinion
of the signers, of all Funded Property then owned by the
Company;
(2) stating, with respect to each
successor corporation, the Fair Value, in the opinion of the
signers, of the Funded Property to be transferred to each such
successor corporation in the corporate division;
(3) stating the Fair Value, in the opinion
of the signers, of all of the Mortgaged and Pledged Property
to be released from the Lien of this Indenture in such
corporate division; and
(4) stating, that in the opinion of the
signers, the release of the Mortgaged and Pledged Property to
each successor corporation will not impair the security under
this Indenture in contravention of the provisions hereof;
(B) each of the successor corporations which
receives any Mortgaged and Pledged Property in the corporate
division shall adopt an indenture substantially identical to
this Indenture, each such indenture to create a lien on the
Mortgaged and Pledged Property received by such successor
corporation to secure the payment of those bonds then
Outstanding under this Indenture the payment of which is
assumed by such successor corporation;
(C) each of the successor corporations which
receives any Funded Property shall assume the payment of
certain bonds then Outstanding under this Indenture, the
aggregate principal amount of such assumed bonds to be between
ninety-nine per centum (99%) and one hundred one per centum
(101%) of the product of the aggregate principal amount of all
bonds then Outstanding under this Indenture multiplied by the
amount stated in clause (2) above with respect to such
successor corporation divided by the amount stated in clause
(1) above;
(D) the amount of bonds that the Company was
entitled to have authenticated and delivered pursuant to the
provisions of Section 29 hereof shall be allocated to the
successor corporations under each of their respective
indentures in the same proportion as bonds were assumed under
clause (C) above;
(E) the Company shall deliver to the Corporate
Trustee an Opinion of Counsel, dated not more than ninety days
prior to such corporate division,
(1) describing the instruments, documents
and actions necessary to preserve the Lien of this Indenture
on the Mortgaged and Pledged Property until the lien of the
indenture of each successor corporation has been perfected
with respect to so much of the Mortgaged and Pledged Property
as is being transferred to such successor corporation in the
corporate division,
(2) stating that, in the opinion of the
signers, the bonds assumed by each successor corporation will
be secured by a lien upon the Mortgaged and Pledged Property
transferred to such successor corporation similar in
character, validity and priority to the Lien of this Indenture
immediately prior to such corporation division.
The Trustees under this Indenture shall execute and
deliver such instruments and other documents and take such
other action as is described in the Opinion of Counsel
described above to release from the Lien of this Indenture the
Mortgaged and Pledged Property transferred to each such
successor corporation in the corporate division effective as
of the date of the imposition of the lien of the indenture
described above on such Mortgaged and Pledged Property. The
Corporate Trustee shall allocate and deliver any Funded Cash
held by it as of the date of corporate division among the
trustees for the indentures of the successor corporations in
the same proportion that bonds are assumed under clause (C)
above.
Promptly after the implementation of the foregoing, the
Company shall be released and discharged from any obligation
to pay the principal or interest on any bond assumed by a
successor corporation other than the Company and such assumed
bonds shall be deemed to have been paid for purposes of
Section 106 of this Indenture.
The amendment of Section 25 of the Mortgage to change the
words "sixty per centum (60%)" to "seventy per centum (70%). The
amendment of clause (c) of subdivision (4) of Section 59 to read
as follows:
(c) the principal amount of each bond or
fraction of bond to the authentication and delivery of which
the Company shall be entitled under the provisions of Section
26 or 10/7 of the principal amount of each bond or fraction of
bond to the authentication and delivery of which the Company
shall be entitled under the provisions of Section 29 hereof,
by virtue of compliance with all applicable provisions of said
Section 26 or Section 29, as the case may be (except as
hereinafter in this Section otherwise provided) the
application for such release shall operate as a waiver by the
Company of such right to the authentication and delivery of
each such bond or fraction thereof on the basis of which right
such property is released and to such extent no such bond or
fraction thereof may thereafter be authenticated and delivered
hereunder, and any such bonds or Qualified Lien Bonds which
have been made the basis of any such right to the
authentication and delivery of bond(s) or fraction of a bond
so waived shall be deemed to have been made the basis of the
release of such property;
(a) The amendment of subparagraph (A) of the first
paragraph of Section 7 to substitute the words "eighteen (18)"
for the words "fifteen (15)" in the second line.
(b) The amendment of clause (1) of clause (A) of
Section 7 to add after the word "revenues" substantially the
following text:
(which may include revenues subject when collected
or accrued to possible refund at a future date)
(c) The amendment of clause (8) of subparagraph (A)
of the first paragraph of Section 7 to add after the word
"(net)" substantially the following text:
, which may include any portion of the allowance for
funds used during construction or any portion of the allowance
for funds used for conservation expenditures (or any analogous
amount), in either case, which is not included in "other
income" (or any analogous item) in the Company's books of
account
(d) The amendment of the second paragraph in
Section 7 (which begins with the words "In calculating such
Adjusted Net Earnings ..." to add at the end of the first
sentence thereof substantially the following text:
and provided further that no deduction from revenues
or income shall be made for expenses or provisions for any non-
recurring charge to income of whatever kind or nature
(including without limitation the recognition of expense due
to the non-recoverability of investment), whether or not
recorded as an extraordinary item in the Company's books of
account, and no deduction from revenues or income shall be
made for provisions for any refund of revenues previously
collected or accrued subject to possible refund.
(e) The addition of a new paragraph at the end of
Section 7 to read substantially as follows:
In calculating such Annual Interest
Requirements (A) if any bonds issued hereunder, Qualified Lien
Bonds and/or other indebtedness bear interest at a variable
rate or rates, the Annual Interest Requirements thereon shall
be determined by reference to the rate or rates in effect on
the date next preceding the date of the initial authentication
and delivery of the bonds then applied for in the application
in connection with which the Net Earning Certificate is made,
(B) if such bonds then applied for and/or any bonds applied
for in any other pending application are to bear interest at a
variable rate or rates, the Annual Interest Requirements
thereon shall be determined by reference to the rate or rates
to be in effect at the time of the initial authentication and
delivery thereof, and (C) the Annual Interest Requirements on
bonds issued or to be issued hereunder, Qualified Lien Bonds
and any other indebtedness shall be determined by reference to
the rate or rates at which such obligations are stated by
their terms to bear simple interest, without regard to the
effective interest cost to the Company of such obligations and
without regard to the stated interest rate or rates upon, or
the effective cost to the Company of, other obligations for
which such obligations are or are to be pledged or otherwise
delivered as security.
The amendment of Section 86 of the Mortgage to add a
new paragraph at the end reading substantially as follows:
In case the Company, as permitted by Section 85
hereof, shall convey or transfer, subject to the Lien of this
Indenture, all or substantially all of the Mortgaged and
Pledged Property as an entirety to a successor corporation,
the indenture described above in this Section may also provide
for the release and discharge of the Company from all
obligations under this Indenture or any bonds issued hereunder
which are assumed by such successor corporation.
The amendment of Section 102 of the Mortgage to insert
immediately after the first paragraph thereof a new paragraph
reading substantially as follows:
So long as no event which is, or after notice
or lapse of time, or both, would become, a Default (as defined
in Section 65 hereof) shall have occurred and be continuing,
if the Company shall have delivered to the Corporate Trustee
(i) an instrument executed by order of its Board of Directors
and duly acknowledged by proper officers of the Company
appointing a successor Corporate Trustee, Individual Trustee
or other 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, such
trustee shall be deemed to have resigned as contemplated in
Section 101, and such successor trustee shall be deemed to
have been appointed pursuant to the first paragraph of this
Section, all as of such date, and all other provisions of this
Article shall be applicable to such resignation, appointment
and acceptance except to the extent inconsistent with this
paragraph.
The amendment of Section 120 of the Mortgage to read
substantially as follows:
SECTION 120. Anything in this Indenture to the
contrary notwithstanding, without the consent of any holders
of bonds, the Company and the Trustees, at any time and from
time to time, may enter into one or more indentures supple
mental hereto, in form satisfactory to the Trustees, for any
of the following purposes:
(a) to evidence the succession of another
corporation to the Company and the assumption by any such
successor of the covenants of the Company herein and in the
bonds, all as provided in Article XVI hereof, or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all holders of
the bonds or for the benefit of the holders of, or to remain
in effect only so long as there shall be Outstanding, bonds of
one or more specified series, and to make the occurrence of a
default in the performance of any of such additional covenants
an additional "Default" under Section 65 permitting the
enforcement of all or any of the several remedies provided in
this Indenture, as herein set forth; provided, however, that
in respect of any such additional covenant, such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than those
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default, or may (subject to
the provisions of applicable law) limit the remedies available
to the Trustees upon such default; or to provide that the
occurrence of one or more specified events shall constitute
additional "Defaults" under Section 65 as if set forth
therein, or to surrender any right or power herein conferred
upon the Company, which additional "Default" or surrender may
be limited so as to remain in effect only so long as bonds of
one or more specified series shall remain Outstanding; or
(c) to correct or amplify the description
of any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto the
Trustees any property subject or required to be subjected to
the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property; or
(d) to change or eliminate any provision
of this Indenture or to add any new provision to this
Indenture; provided, however, that no such change, elimination
or addition shall adversely affect the interests of the
holders of bonds of any series in any material respect; or
(e) to establish the form or terms of
bonds of any series as contemplated by Article II; or
(f) 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
of bonds; or
(g) 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 bonds shall be payable, (2) all
or any series of bonds may be surrendered for registration of
transfer, (3) all or any series of bonds may be surrendered
for exchange and (4) notices and demands to or upon the Com
pany in respect of all or any series of bonds and this
Indenture may be served; or
(h) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein; or to make any
other 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
bonds of any series in any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act of 1939, as in effect at
any time and from time to time,
(x) 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 the Trust Indenture Act
of 1939 as then in effect, and the Company and the Trustees
may, without the consent of any holders of bonds, enter into
an indenture supplemental hereto to evidence such amendment
hereof; or
(y) shall permit one or more
changes to, or the elimination of, any provisions hereof which
shall theretofore have been required by the Trust Indenture
Act of 1939 to be contained herein or are contained herein to
reflect any provisions of the Trust Indenture Act of 1939,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company and the Trustees
may, without the consent of any holders of bonds, enter into
an indenture supplemental hereto to evidence such amendment
hereof.
The amendment of Section 59 of the Mortgage to delete the
clause at the end of subdivision (4) beginning with the words
"provided, however, that (i) no obligations ...." and ending with
the words "... at such time Outstanding under this Indenture" and
substituting therefor substantially the following:
provided, however, that no obligations secured by
purchase money mortgage upon any property being released from
the Lien hereof shall be used as a credit in any application
for such release unless the Company shall deliver to the
Trustee a certificate or opinion of an engineer, appraiser or
other expert as to the fair value of such purchase money
mortgage obligations to the Company, and provided further,
that if the fair value to the Company of such purchase money
mortgage obligations and of all other securities (other than
bonds authenticated and delivered hereunder) made the basis of
any authentication and delivery of bonds hereunder, the
withdrawal of any cash constituting part of the trust estate
hereunder, or the release of any property or securities from
the Lien hereof since the commencement of the then calendar
year, as set forth in the certificates or opinions required by
this clause, is ten per centum (10%) or more of the aggregate
principal amount of the bonds at the time Outstanding under
this Indenture, such certificate or opinion shall be made by
an independent engineer, appraiser, or other expert; but such
a certificate of an independent engineer, appraiser, or other
expert shall not be required with respect to any purchase
money mortgage obligations so deposited, if the fair value
thereof to the Company as set forth in the certificate or
opinion required by this clause is less than twenty-five
thousand Dollars ($25,000) or less than one per centum (1%) of
the aggregate principal amount of bonds at the time
Outstanding under this Indenture.
The amendment of Section 37 of the Mortgage to replace the
words "Fifty Thousand Dollars ($50,000)" with the words "the
greater of (A) Ten Million Dollars ($10,000,000) and (B) three
per centum (3%) of the aggregate principal amount of bonds then
Outstanding on the date of such particular loss" in each place
such words appear in such Section.
No._______________
Cusip No.__________
EXHIBIT 4(b)
[FORM OF FACE OF SECURITY]
ARKANSAS POWER & LIGHT COMPANY
______________________________________________,
DUE __________________
Arkansas Power & Light Company, a corporation duly organized
and existing under the laws of the State Arkansas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ______________, or registered assigns, the principal
sum of ____________________ Dollars on __________________, and to
pay interest on said principal sum from ___________, 1996 or from
the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on each ________ and
________, commencing _____________1996 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 __________, 1996 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) 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
__________ 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 of New York, the 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.
ARKANSAS 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.
CHEMICAL BANK, as Trustee
By:_______________________________________
Authorized Officer
<PAGE>
[FORM OF 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 __________, 1996 (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 Chemical Bank, 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 ___________, 1996 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]
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 then
Outstanding, on behalf of the Holders of all the Securities then
Outstanding, to waive certain past defaults under the Indenture
and their consequences or of the Securities of all series
affected, on behalf of Holders of all Securities of such series
to waive compliance by the Company with certain provisions of the
Indenture and. 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 Securities of this series are issuable only in
registered form without coupons in denominations of $1000 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.
EXHIBIT 4(c)
ARKANSAS POWER & LIGHT COMPANY
OFFICER'S CERTIFICATE
Reference is made to the Indenture for Debt Securities dated
as of __________, 1996 (the "Indenture") from Arkansas Power &
Light Company (the "Company") to Chemical Bank, as Trustee (the
"Trustee"). Capitalized terms used herein without being defined
shall have the meanings set forth in the Indenture.
Pursuant to (i) the authority granted in the Board
Resolutions adopted on __________, 199_, and (ii) Section 301 of
the Indenture, the undersigned _____________, ___________ of the
Company, does hereby certify as follows:
1. The securities of the first series to be issued
under the Indenture shall be designated
"______________________________________" (the
"Securities of the First Series").
2. The Securities of the First Series shall be
limited in aggregate principal amount to $___________
at any time Outstanding, except as contemplated in
Section 301(b) of the Indenture;
3. The Securities of the First Series shall mature
and the principal shall be due and payable together
with all accrued and unpaid interest thereon on
__________________;
4. The Securities of the First Series shall bear
interest from _________, at the rate of ____% per annum
payable semiannually on ________, and _________ of each
year (each an "Interest Payment Date") commencing
___________, 199_. The amount of interest payable for
any such period will be computed on the basis of a 360-
day year of twelve 30-day months. Interest on the
Securities of the First 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 the
First Series with respect to the day on which the
Securities of the First Series mature. In the event
that any Interest Payment Date is not a Business Day,
then payment of interest payable on such date will be
made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect
of such delay) with the same force and effect as if
made on such Interest Payment Date. Interest on any
overdue principal will accrue at the same rate as the
interest rate on the Securities of the First Series set
forth above, but interest will not accrue on overdue
installments of interest on the Securities of the First
Series;
5. Each installment of interest on a Security of the
First Series shall be payable to the Person in whose
name such Security of the First Series is registered at
the close of business on ________ or ________ next
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Securities of the First
Series. Any installment of interest on the Securities
of the First Series not punctually paid or duly
provided for shall forthwith cease to be payable
to the Holders of such Securities of the First Series
on such Regular Record Date, and may be paid to the
Persons in whose name the Securities of the First
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Securities of the First
Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on
the Securities of the First Series shall be payable at,
and registration and registration of transfers and
exchanges and notices and demands to or upon the
Company in respect of the Securities of the First
Series may be effected or served at the office or
agency of the Company in the City of New York; provided
that payment of interest may be made at the option of
the Company by check mailed to the address of the
persons entitled thereto. The Trustee will initially
be the agency of the Company for the foregoing purposes
and the Paying Agent and Security Registrar; provided,
however, that the Company reserves the right to change,
by one or more Officer's Certificates any such office
or agency;
7. The redemption provisions will be inserted here;
8 In the event that the Securities of the First
Series are issued in global form, matters contemplated
in clause (r) in the second paragraph of Section 301 of
the Indenture will be established here.
[9. In the event that, at any time subsequent to the
initial authentication and delivery of the Securities
of the First Series, the Securities of the First Series
are to be held by a securities depositary, the Company
may at such time establish the matters contemplated in
clause (r) in the second paragraph of Section 301 of
the Indenture in an Officer's Certificate supplemental
to this Certificate;]
10. No service charge shall be made for the
registration of transfer or exchange of the Securities
of the First Series; provided, however, that the
Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with the exchange or transfer;
[11 Additional statements, if any, pursuant to Article
Fifteen of the Indenture may be inserted here;]
12. The Securities of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
13. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Securities of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
14. The statements contained in this certificate are
based upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
15. In the opinion of the undersigned, he has made
such examination or investigation as is necessary to
express an informed opinion whether or not such
covenants and conditions have been complied with; and
16. In the opinion of the undersigned, such conditions
and covenants and the conditions precedent, if any
(including any covenants compliance with which
constitutes a condition precedent) to the
authentication and delivery of the Securities of the
First Series requested in the accompanying Company
Order have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of ________, 1996.
___________________
[Authorized Officer]
No._______________
Cusip No.__________
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
ARKANSAS POWER & LIGHT COMPANY
______________________________________________,
DUE __________________
Arkansas Power & Light Company, a corporation duly organized
and existing under the laws of the State Arkansas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to ______________, or registered assigns, the principal
sum of ____________________ Dollars on __________________, and to
pay interest on said principal sum from ___________, 1996 or from
the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on each ________ and
________, commencing _____________1996 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 __________, 1996 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) 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
__________ 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 of New York, the 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.
ARKANSAS POWER & LIGHT COMPANY
By:_______________________________________
ATTEST:
____________________________
<PAGE>
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:_______________________________________
Authorized Officer
<PAGE>
[FORM OF 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 __________, 1996 (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 Chemical Bank, 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 ___________, 1996 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]
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 then
Outstanding, on behalf of the Holders of all the Securities then
Outstanding, to waive certain past defaults under the Indenture
and their consequences or of the Securities of all series
affected, on behalf of Holders of all Securities of such series
to waive compliance by the Company with certain provisions of the
Indenture and. 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 Securities of this series are issuable only in
registered form without coupons in denominations of $1000 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.
EXHIBIT 4(e)
ARKANSAS POWER & LIGHT COMPANY
TO
BANKERS TRUST COMPANY
(successor to Morgan Guaranty Trust Company of New York)
AND
STANLEY BURG
(successor to John W. Flaherty, Henry A. Theis,
Herbert E. Twyeffort and Grainger S. Greene)
AND
(as to property, real or personal, situated or being in Missouri)
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
(successor to Marvin A. Mueller)
As Trustees under Arkansas Power & Light Company's Mortgage and
Deed of Trust, dated as of October 1, 1944
____________________________
SUPPLEMENTAL INDENTURE
Providing among other things for
First Mortgage Bonds, _______________ Series _____
(________ Series)
____________________________
Dated as of _________, 199_
SUPPLEMENTAL INDENTURE
INDENTURE, dated as of _________________ , 199_, between
ARKANSAS POWER & LIGHT COMPANY, a corporation of the State of
Arkansas, whose post office address is 425 West Capitol, Little
Rock, Arkansas 72201 (hereinafter sometimes called the
"Company"), and BANKERS TRUST COMPANY (successor to Morgan
Guaranty Trust Company of New York), a corporation of the State
of New York, whose post office address is 4 Albany Street, New
York, New York 10006 (hereinafter sometimes called the "Corporate
Trustee"), and STANLEY BURG (successor to John W. Flaherty, Henry
A. Theis, Herbert E. Twyeffort and Grainger S. Greene), and (as
to property, real or personal, situated or being in Missouri) THE
BOATMEN'S NATIONAL BANK OF ST. LOUIS, a national banking
association existing under the laws of the United States of
America (successor to Marvin A. Mueller), whose post office
address is 510 Locust Street, St. Louis, Missouri 63101, (said
Stanley Burg being hereinafter sometimes called the "Co-Trustee",
and The Boatmen's National Bank of St. Louis being hereinafter
sometimes called the "Missouri Co-Trustee", and the Corporate
Trustee, the Co-Trustee and the Missouri Co-Trustee being
hereinafter together sometimes called the "Trustees"), as
Trustees under the Mortgage and Deed of Trust, dated as of
October 1, 1944 (hereinafter sometimes called the "Mortgage"),
which Mortgage was executed and delivered by the Company to
secure the payment of bonds issued or to be issued under and in
accordance with the provisions of the Mortgage, reference to
which Mortgage is hereby made, this indenture (hereinafter called
the "_____________ Supplemental Indenture") being supplemental
thereto.
WHEREAS, the Mortgage was appropriately filed or recorded in
various official records in the States of Arkansas, Missouri,
Tennessee and Wyoming; and
WHEREAS, an instrument, dated as of July 7, 1949, was
executed by the Company appointing Herbert E. Twyeffort as Co-
Trustee in succession to Henry A. Theis (resigned) under the
Mortgage, and by Herbert E. Twyeffort accepting said appointment,
and said instrument was appropriately filed or recorded in
various official records in the States of Arkansas, Missouri,
Tennessee and Wyoming; and
WHEREAS, an instrument, dated as of March 1, 1960, was
executed by the Company appointing Grainger S. Greene as Co-
Trustee in succession to Herbert E. Twyeffort (resigned) under
the Mortgage, and by Grainger S. Greene accepting said
appointment, and said instrument was appropriately filed or
recorded in various official records in the States of Arkansas,
Missouri, Tennessee and Wyoming; and
WHEREAS, by the Twenty-first Supplemental Indenture
mentioned below, the Company, among other things, appointed John
W. Flaherty as Co-Trustee in succession to Grainger S. Greene
(resigned) under the Mortgage, and John W. Flaherty accepted said
appointment; and
WHEREAS, by the Thirty-third Supplemental Indenture
mentioned below, the Company, among other things, appointed
Marvin A. Mueller as Missouri Co-Trustee, and Marvin A. Mueller
accepted said appointment; and
WHEREAS, by the Thirty-fifth Supplemental Indenture
mentioned below, the Company, among other things, appointed The
Boatmen's National Bank of St. Louis as Missouri Co-Trustee in
succession to Marvin A. Mueller (resigned) under the Mortgage,
and The Boatmen's National Bank of St. Louis accepted said
appointment; and
WHEREAS, an instrument, dated ________________, was executed
by the Company appointing Bankers Trust Company as Trustee, and
Stanley Burg as Co-Trustee in succession to Morgan Guaranty Trust
Company of New York (resigned) and John W. Flaherty (resigned),
respectively, under the Mortgage and Bankers Trust Company and
Stanley Burg accepted said appointments, and said instrument was
appropriately filed or recorded in various official records in
the States of Arkansas, Missouri, Tennessee and Wyoming; and
WHEREAS, by the Mortgage the Company covenanted that it
would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as might be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the lien of the
Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, the Company executed and delivered to the Trustees
the following supplemental indentures:
Designation Dated as of
First Supplemental Indenture July 1, 1947
Second Supplemental Indenture August 1, 1948
Third Supplemental Indenture October 1, 1949
Fourth Supplemental Indenture June 1, 1950
Fifth Supplemental Indenture October 1, 1951
Sixth Supplemental Indenture September 1, 1952
Seventh Supplemental Indenture June 1, 1953
Eighth Supplemental Indenture August 1, 1954
Ninth Supplemental Indenture April 1, 1955
Tenth Supplemental Indenture December 1, 1959
Eleventh Supplemental Indenture May 1, 1961
Designation Dated as of
Twelfth Supplemental Indenture February 1, 1963
Thirteenth Supplemental Indenture April 1, 1965
Fourteenth Supplemental Indenture March 1, 1966
Fifteenth Supplemental Indenture March 1, 1967
Sixteenth Supplemental Indenture April 1, 1968
Seventeenth Supplemental Indenture June 1, 1968
Eighteenth Supplemental Indenture December 1, 1969
Nineteenth Supplemental Indenture August 1, 1970
Twentieth Supplemental Indenture March 1, 1971
Twenty-first Supplemental Indenture August 1, 1971
Twenty-second Supplemental Indenture April 1, 1972
Twenty-third Supplemental Indenture December 1, 1972
Twenty-fourth Supplemental Indenture June 1, 1973
Twenty-fifth Supplemental Indenture December 1, 1973
Twenty-sixth Supplemental Indenture June 1, 1974
Twenty-seventh Supplemental Indenture November 1, 1974
Twenty-eighth Supplemental Indenture July 1, 1975
Twenty-ninth Supplemental Indenture December 1, 1977
Thirtieth Supplemental Indenture July 1, 1978
Thirty-first Supplemental Indenture February 1, 1979
Thirty-second Supplemental Indenture December 1, 1980
Thirty-third Supplemental Indenture January 1, 1981
Thirty-fourth Supplemental Indenture August 1, 1981
Thirty-fifth Supplemental Indenture February 1, 1982
Thirty-sixth Supplemental Indenture December 1, 1982
Thirty-seventh Supplemental Indenture February 1, 1983
Thirty-eighth Supplemental Indenture December 1, 1984
Thirty-ninth Supplemental Indenture December 1, 1985
Fortieth Supplemental Indenture July 1, 1986
Forty-first Supplemental Indenture July 1, 1989
Forty-second Supplemental Indenture February 1, 1990
Forty-third Supplemental Indenture October 1, 1990
Forty-fourth Supplemental Indenture November 1, 1990
Forty-fifth Supplemental Indenture January 1, 1991
Forty-sixth Supplemental Indenture August 1, 1992
Forty-seventh Supplemental Indenture November 1, 1992
Forty-eighth Supplemental Indenture June 15, 1993
Forty-ninth Supplemental Indenture August 1, 1993
Designation Dated as of
Fiftieth Supplemental Indenture October 1, 1993
Fifty-first Supplemental Indenture October 1, 1993
Fifty-second Supplemental Indenture June 15, 1994
[Here will be inserted additional executed supplemental indentures.]
which supplemental indentures were appropriately filed or
recorded in various official records in the States of Arkansas,
Missouri, Tennessee and Wyoming; and
WHEREAS, in addition to the property described in the
Mortgage, 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 Mortgage,
as supplemented, the following series of First Mortgage Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
3 1/8% Series due 1974 $ 30,000,000 None
2 7/8% Series due 1977 11,000,000 None
3 1/8% Series due 1978 7,500,000 None
2 7/8% Series due 1979 8,700,000 None
2 7/8% Series due 1980 6,000,000 None
3 5/8% Series due 1981 8,000,000 None
3 1/2% Series due 1982 15,000,000 None
4 1/4% Series due 1983 18,000,000 None
3 1/4% Series due 1984 7,500,000 None
3 3/8% Series due 1985 18,000,000 None
5 5/8% Series due 1989 15,000,000 None
4 7/8% Series due 1991 12,000,000 None
4 3/8% Series due 1993 15,000,000 None
4 5/8% Series due 1995 25,000,000 None
5 3/4% Series due 1996 25,000,000 $25,000,000
5 7/8% Series due 1997 30,000,000 30,000,000
7 3/8% Series due 1998 15,000,000 15,000,000
9 1/4% Series due 1999 25,000,000 None
9 5/8% Series due 2000 25,000,000 None
7 5/8% Series due 2001 $30,000,000 None
Principal Principal
Amount Amount
Series Issued Outstanding
8% Series due August 1, 2001 30,000,000 None
7 3/4% Series due 2002 35,000,000 None
7 1/2% Series due December 1, 2002 15,000,000 None
8 % Series due 2003 40,000,000 None
8 1/8% Series due December 1, 2003 40,000,000 None
10 1/2% Series due 2004 40,000,000 None
9 1/4% Series due November 1, 1981 60,000,000 None
10 1/8% Series due July 1, 2005 40,000,000 None
9 1/8% Series due December 1, 2007 75,000,000 None
9 7/8% Series due July 1, 2008 75,000,000 None
10 1/4% Series due February 1, 2009 60,000,000 None
16 1/8% Series due December 1, 1986 70,000,000 None
4 1/2% Series due September 1, 1983 1,202,000 None
5 1/2% Series due January 1, 1988 598,310 None
5 5/8% Series due May 1, 1990 1,400,000 None
6 1/4% Series due December 1, 1996 3,560,000 960,000
9 3/4% Series due September 1, 2000 4,600,000 2,200,000
8 3/4% Series due March 1, 1998 9,800,000 4,200,000
17 3/8% Series due August 1, 1988 75,000,000 None
16 1/2% Series due February 1, 1991 80,000,000 None
13 3/8% Series due December 1, 2012 75,000,000 None
13 1/4% Series due February 1, 2013 25,000,000 None
14 1/8% Series due December 1, 2014 100,000,000 None
Pollution Control Series A 128,800,000 128,800,000
10 1/4% Series due July 1, 2016 50,000,000 None
9 3/4% Series due July 1, 2019 75,000,000 75,000,000
10 % Series due February 1, 2020 150,000,000 150,000,000
10 3/8% Series due October 1, 2020 175,000,000 23,818,000
Solid Waste Disposal Series A 21,066,667 21,066,667
Solid Waste Disposal Series B 28,440,000 28,440,000
7 1/2% Series due August 1, 2007 100,000,000 100,000,000
7.90% Series due November 1, 2002 25,000,000 25,000,000
8.70% Series due November 1, 2022 25,000,000 25,000,000
Pollution Control Series B 46,875,000 46,875,000
6.65% Series due August 1, 2005 115,000,000 115,000,000
6% Series due October 1, 2003 155,000,000 155,000,000
7% Series due October 1, 1023 175,000,000 175,000,000
Principal Principal
Amount Amount
Series Issued Outstanding
Pollution Control Series C 20,319,000 20,319,000
Pollution Control Series D 9,586,400 9,586,400
[Here will be inserted additional outstanding series.]
which bonds are also hereinafter sometimes called bonds of the
First through ____________________ Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of
each series of bonds (other than the First Series) issued
thereunder and of the coupons to be attached to coupon bonds of
such series shall be established by Resolution of the Board of
Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof,
and may also contain such provisions not inconsistent with the
provisions of the Mortgage as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage 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 Mortgage, 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 or restrictions for the benefit of any one or more
series of bonds issued thereunder, or the Company may cure any
ambiguity contained therein or in any supplemental indenture, or
may establish the terms and provisions of any series of bonds
other than said First Series, 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 record in
all of the states in which any property at the time subject to
the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create _________ new
series of bonds and (pursuant to the provisions of Section 120 of
the Mortgage) to add to its covenants and agreements contained in
the Mortgage, as heretofore supplemented, certain other covenants
and agreements to be observed by it and to alter and amend in
certain respects the covenants and provisions contained in the
Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this
________________ Supplemental Indenture, and the terms of the
bonds of the ___________ Series, hereinafter referred to, have
been duly authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One
Dollar 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 further evidence of assurance of the estate,
title and rights of the Trustees and in order further to secure
the payment of both the principal of and interest and premium, if
any, on the bonds from time to time issued under the Mortgage,
according to their tenor and effect and the performance of all
the provisions of the Mortgage (including any instruments
supplemental thereto and any modifications made as in the
Mortgage provided) and of said bonds, hereby grants, bargains,
sells, releases, conveys, assigns, transfers, mortgages,
hypothecates, affects, pledges, sets over and confirms (subject,
however, to Excepted Encumbrances as defined in Section 6 of the
Mortgage) unto The Boatmen's National Bank of St. Louis (as to
property, real or personal, situated or being in Missouri) and
Stanley Burg (but, as to property, real or personal, situated or
being in Missouri, only to the extent of his legal capacity to
hold the same for the purposes hereof) and (to the extent of its
legal capacity to hold the same for the purposes hereof) to
Bankers Trust Company, as Trustees under the Mortgage, and to
their successor or successors in said trust, and to them and
their successors and assigns forever, all property, real,
personal or mixed, of any kind or nature acquired by the Company
after the date of the execution and delivery of the Mortgage
(except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned or, subject to the
provisions of Section 87 of the Mortgage, 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 this __________
Supplemental Indenture) all lands, power sites, flowage rights,
water rights, water locations, water appropriations, ditches,
flumes, reservoirs, reservoir sites, canals, raceways, 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, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all street and interurban railway and transportation
lines and systems, terminal systems and facilities; all bridges,
culverts, tracks, railways, sidings, spurs, wyes, roadbeds,
trestles and viaducts; all overground and underground trolleys
and feeder wires; all telephone, radio and television systems,
air-conditioning systems and equipment incidental thereto, water
works, water systems, steam heat and hot water plants,
substations, lines, service and supply systems, ice or
refrigeration plants and equipment, offices, buildings and other
structures and the equipment thereof, all machinery, engines,
boilers, dynamos, electric, gas and other machines, regulators,
meters, transformers, generators, 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, wires,
cables, tools, implements, apparatus, furniture and chattels; all
municipal and other franchises, consents or permits; all lines
for the transmission and distribution of electric current, gas,
steam heat or water for any purpose including towers, poles,
wires, cables, pipes, conduits, ducts and all apparatus for use
in connection therewith; 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 and (except as herein or in the Mortgage,
as heretofore supplemented, 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 hereinbefore or in
the Mortgage, as heretofore supplemented, 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 57 of the
Mortgage) 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 and franchises and every part and parcel
thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 87 of the Mortgage, 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 herein or in the
Mortgage, as heretofore supplemented, expressly excepted, shall
be and are as fully granted and conveyed hereby and by the
Mortgage and as fully embraced within the lien hereof and the
lien of the Mortgage, as heretofore supplemented, as if such
property, rights and franchises were now owned by the Company and
were specifically described herein or in the Mortgage and
conveyed hereby or thereby.
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 and are hereby expressly
excepted from the lien and operation of this ____________
Supplemental Indenture and from the lien and operation of the
Mortgage, as heretofore supplemented, viz: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in
the usual course of business or for the purpose of repairing or
replacing (in whole or in part) any street cars, rolling stock,
trolley coaches, motor coaches, buses, automobiles or other
vehicles or aircraft, and fuel, oil and similar materials and
supplies consumable in the operation of any properties of the
Company; street cars, rolling stock, trolley coaches, motor
coaches, buses, automobiles and other vehicles and all aircraft;
(3) bills, notes and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage, as
heretofore supplemented, or covenanted so to be; the Company's
contractual rights or other interest in or with respect to tires
not owned by the Company; (4) the last day of the term of any
lease or leasehold which may hereafter become subject to the lien
of the Mortgage; (5) electric energy, gas, 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; all timber, minerals, mineral
rights and royalties; (6) the Company's franchise to be a
corporation; (7) the properties heretofore sold or in the process
of being sold by the Company and heretofore released from the
Mortgage and Deed of Trust dated as of October 1, 1926 from
Arkansas Power & Light Company to Guaranty Trust Company of New
York, trustee, and specifically described in a release instrument
executed by Guaranty Trust Company of New York, as trustee, dated
October 13, 1938, which release has heretofore been delivered by
the said trustee to the Company and recorded by the Company in
the office of the Recorder for Garland County, Arkansas, in
Record Book 227, Page 1, all of said properties being located in
Garland County, Arkansas; and (8) any property heretofore
released pursuant to any provisions of the Mortgage and not
heretofore disposed of by the Company; provided, however, that
the property and rights expressly excepted from the lien and
operation of the Mortgage, as heretofore supplemented, and this
_________ Supplemental 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 any or all 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 XIII of the Mortgage by reason of the
occurrence of a Default as defined in Section 65 thereof.
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 by the Company as aforesaid, or intended so to be,
unto The Boatmen's National Bank of St. Louis (as to property,
real or personal, situated or being in Missouri), and unto
Stanley Burg (but, as to property, real or personal, situated or
being in Missouri, only to the extent of his legal capacity to
hold the same for the purposes hereof) and (to the extent of its
legal capacity to hold the same for the purposes hereof) unto
Bankers Trust Company, as Trustees, and their successors and
assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
heretofore supplemented, this Supplemental
Indenture being supplemental to the Mortgage.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Mortgage, as heretofore supplemented, shall affect and
apply to the property hereinbefore described and conveyed and to
the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors in the trust
in the same manner and with the same effect as if said property
had been owned by the Company at the time of the execution of the
Mortgage, and had been specifically and at length described in
and conveyed to said Trustees, by the Mortgage as a part of the
property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustees and their successors in said trust under the Mortgage,
as follows:
ARTICLE I
SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated "
Series " (herein sometimes called the "
Series"), each of which shall also bear the descriptive title
"First Mortgage Bond", and the form thereof, which shall be
established by Resolution of the Board of Directors of the
Company, shall contain suitable provisions with respect to the
matters hereinafter in this Section specified. Bonds of the
Series (which shall be issued in the aggregate principal amount
not to exceed $__________) shall be issued as fully registered
bonds in the denomination of One Thousand Dollars and, at the
option of the Company, in any multiple or multiples of One
Thousand Dollars (the exercise of such option to be evidenced by
the execution and delivery thereof), and shall be dated as in
Section 10 of the Mortgage provided. Each bond of the __________
Series shall (a) be issued in such principal amount, (b) mature
on such date (not more than ______ (__) years after the date of
the execution and delivery of this __________ Supplemental
Indenture) and (c) have such other terms and provisions, all as
shall be specified by the Company in a written order, or orders,
executed by the Chairman of the Board, the President, any Vice
President, the Treasurer or any Assistant Treasurer of the
Company, delivered to the Trustee referring to the bonds of the
__________ Series (each such written order being hereinafter
sometimes referred to as a "Company Order"), such specification
by such an officer of the Company having been heretofore
authorized in a Resolution filed with the Trustee referring to
this __________ Supplemental Indenture. The bonds of the
__________ Series shall not bear interest. The principal of and
interest on each said bond shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts.
(II) The bonds of the _________ Series shall be issued and
delivered from time to time by the Company to the trustee under
the Indenture, to be dated as of _________, 1996, as supplemented
(the "1996 Indenture"), of the Company to Chemical Bank, as such
trustee (such trustee and any successor thereto hereinafter
referred to as the "1996 Indenture Trustee"), as the basis for
the authentication and delivery from time to time of securities
under the 1996 Indenture. As provided in the 1996 Indenture, the
bonds of the __________ Series, when so issued and delivered,
will be registered in the name of the 1996 Indenture Trustee or
its nominee and will be owned and held by the 1996 Indenture
Trustee, subject to the provisions of the 1996 Indenture, for the
benefit of the holders of all securities from time to time
outstanding under the 1996 Indenture, and the Company shall have
no interest therein.
Anything herein to the contrary notwithstanding, any payment
by the Company under the 1996 Indenture of the principal of the
securities which shall have been authenticated and delivered
under the 1996 Indenture on the basis of the delivery to the 1996
Indenture Trustee of bonds of the __________ Series (other than
by the application of the proceeds of a payment in respect of
such bonds of the __________ Series) shall, to the extent
thereof, be deemed to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal of such bonds of
the _________ Series which is then due.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds _________ Series as
the same shall become due and payable, whether at maturity, upon
redemption or otherwise, shall have been fully satisfied and
discharged unless and until it shall have received a written
notice from the 1996 Indenture Trustee, signed by an authorized
officer thereof, stating that the principal of specified bonds of
the ___________ Series has become due and payable and has not
been fully paid, and specifying the amount of funds required to
make such payment.
(III) Bonds of the Series shall be redeemable in
whole at any time, or in part from time to time, prior to
maturity, either at the option of the Company or by the
application (either at the option of the Company or pursuant to
the requirements of the Mortgage) of cash delivered to or
deposited with the Corporate Trustee pursuant to the provisions
of Section 39 or Section 64 of the Mortgage or with the Proceeds
of Released Property in any case at a redemption price equal to
100% of the principal amount thereof.
In the event that any bonds of the __________ Series have a
stated maturity date subsequent to the stated maturity date of
the securities authenticated and delivered under the 1996
Indenture on the basis of the delivery to the 1996 Indenture
Trustee of such bonds of the __________ Series, such bonds of the
__________ Series shall be redeemed on the stated maturity date
of such securities at a redemption price equal to 100% of the
principal amount thereof.
In the event that any securities authenticated and delivered
under the 1996 Indenture on the basis of the delivery to the 1996
Indenture Trustee of bonds of the ___________ Series are to be
redeemed pursuant to any provisions contained in such securities
for the mandatory redemption thereof (pursuant to a sinking fund
or otherwise) or for the redemption thereof at the option of the
holder, such bonds of the ________ Series shall be redeemed in a
corresponding principal amount on the date fixed for such
redemption of such securities at a redemption price equal to 100%
of the principal amount thereof.
If less than all the bonds of the _________ Series are to be
redeemed pursuant to the first paragraph of this subsection
(III), the bonds to be redeemed shall be selected from bonds
having the stated maturity dates and redemption provisions, and
in the principal amounts, designated to the Trustee by the
Company. Notwithstanding the provisions of Section 52 of the
Mortgage, no notice of any redemption of bonds of the __________
Series shall be required to be given.
(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, shall be exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized
denominations which have the same stated maturity date and
redemption provisions, if any.
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; provided, however, that the
bonds of the __________ Series shall not be transferable by the
1996 Indenture Trustee except to a successor trustee under the
1996 Indenture. The bonds of the __________ Series may bear such
legends as may be necessary to comply with an law or with any
rules or regulations made pursuant thereto or with the rules or
regulations of any securities exchange or to conform to usage
with respect thereto.
The Company hereby waives any right to make a charge for any
exchange or transfer of bonds of the _________ Series.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2. Subject to the amendments provided for in this
________ Supplemental Indenture, the terms defined in the
Mortgage and the First through ________ Supplemental Indentures
shall, for all purposes of this ________________ Supplemental
Indenture, have the meanings specified in the Mortgage and the
First through ________ Supplemental Indentures.
SECTION 3. 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 Mortgage
and in the First through _______ Supplemental Indentures 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 XVII of the Mortgage, as heretofore amended,
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 _______ Supplemental Indenture.
SECTION 4. Whenever in this ______ Supplemental Indenture
either of the parties hereto is named or referred to, this shall,
subject to the provisions of Articles XVI and XVII of the
Mortgage, as heretofore amended, be deemed to include the
successors and assigns of such party, and all the covenants and
agreements in this _______ Supplemental Indenture contained by or
on behalf of the Company, or by or on behalf of the Trustees, or
either of them, shall, subject as aforesaid, bind and inure to
the respective benefits of the respective successors and assigns
of such parties, whether so expressed or not.
SECTION 5. Nothing in this _______ Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to
confer upon, or give to, any person, firm or corporation, other
than the parties hereto and the holders of the bonds and coupons
Outstanding under the Mortgage, any right, remedy or claim under
or by reason of this _________ Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises or
agreements in this _____ Supplemental Indenture contained by or
on behalf of the Company shall be for the sole and exclusive
benefit of the parties hereto, and of the holders of the bonds
and of the coupons Outstanding under the Mortgage.
SECTION 6. This _______ Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 7. This _______ Supplemental Indenture shall be
construed in accordance with and governed by the laws of the
State of New York.
IN WITNESS WHEREOF, ARKANSAS POWER & LIGHT COMPANY has caused
its corporate name to be hereunto affixed, and this instrument to
be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its
Secretary or one of its Assistant Secretaries for and in its
behalf, and BANKERS 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, and its corporate seal to
be attested by one of its Assistant Secretaries for and in its
behalf, and STANLEY BURG has hereunto set his hand and affixed
his seal, and THE BOATMEN'S NATIONAL BANK OF ST. LOUIS has caused
its corporate name to be hereunto affixed, and this instrument to
be signed and sealed by, one of its Vice Presidents or one of its
Trust Officers, and its corporate seal to be attested by one of
its Assistant Secretaries or one of its Assistant Trust Officers
for and in its behalf, as of the day and year first above
written.
ARKANSAS POWER & LIGHT COMPANY
By:..............................
Vice President
Attest:
..........................................
Assistant Secretary
Executed, sealed and delivered by
ARKANSAS POWER & LIGHT COMPANY
in the presence of:
..........................................
..........................................
<PAGE>
BANKERS TRUST COMPANY,
As Corporate Trustee
By:..............................
Vice President
Attest:
............................ Stanley Burg
Assistant Secretary As Co-Trustee
............................[L.S.]
Executed, sealed and delivered by
BANKERS TRUST COMPANY
and STANLEY BURG
in the presence of:
..............................................................
..............................................................
<PAGE>
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
As Co-Trustee as to property,
real or personal, situated or
being in Missouri
By: ..........................
Trust Officer
Attest:
.............................
Trust Officer
Executed, sealed and delivered by
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS in the presence of:
.............................................................
.............................................................
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this ______ day of _________________, 199_, before me,
____________________, a Notary Public duly commissioned,
qualified and acting within and for said County and State,
appeared in person the within named ______________ and
___________________, to me personally well known, who stated that
they were a ___________________ and_________________,
respectively, of ARKANSAS POWER & LIGHT COMPANY, a corporation,
and were duly authorized in their respective capacities to
execute the foregoing instrument for and in the name and behalf
of said corporation, and further stated and acknowledged that
they had so signed, executed and delivered said foregoing
instrument for the consideration, uses and purposes therein
mentioned and set forth.
On the ________ day of________________, 199_, 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
ARKANSAS POWER & LIGHT COMPANY, one of the corporations 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.
On the ________ day of_______________, 199_, before me
appeared __________________________, to me personally known, who,
being by me duly sworn, did say that he is a ___________________
of ARKANSAS POWER & LIGHT COMPANY, and that the seal affixed to
the foregoing instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of
Directors, and he acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
.................................................................
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this __________ day of __________________, 199_, before
me,___________________, a Notary Public duly commissioned,
qualified and acting within and for said County and State,
appeared __________________ and _________________, to me
personally well known, who stated that they were a
______________________ and __________________, respectively, of
BANKERS TRUST COMPANY, a corporation, and were duly authorized in
their respective capacities to execute the foregoing instrument
for and in the name and behalf of said corporation; and further
stated and acknowledged that they had so signed, executed and
delivered said foregoing instrument for the consideration, uses
and purposes therein mentioned and set forth.
On the _______ day of ________________, 199_, before me
personally came __________________________, to me known, who,
being by me duly sworn, did depose and say that she resides
_________________________; that she is a ______________ of
BANKERS TRUST COMPANY, one of the corporations described in and
which executed the above instrument; that she knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that she signed her
name thereto by like authority.
On the ______ day of ______________, 199_, before me appeared
___________, to me personally known, who, being by me duly sworn,
did say that she is a ________________ of BANKERS TRUST COMPANY,
and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors, and she acknowledged said instrument to
be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
.................................................................
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this ____________ day of _________________, 199_, before
me, __________________________, the undersigned, personally
appeared STANLEY BURG, known to me to be the person whose name is
subscribed to the within instrument, and acknowledged that he
executed the same for the purposes therein contained.
On the ____________ day of __________________, 199_, before
me personally appeared STANLEY BURG, to me known to be the person
described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
.................................................................
<PAGE>
STATE OF MISSOURI )
) SS.:
COUNTY OF ST. LOUIS )
On this _______day of _________________, 199_, before me,
___________________, a Notary Public duly commissioned, qualified
and acting within and for said County and State, appeared
______________________ and _____________, to me personally well
known, who stated that they were a ____________ and
___________________, respectively, of THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS, a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and
in the name and behalf of said corporation, and further stated
and acknowledged that they had so signed, executed and delivered
said foregoing instrument for the consideration, uses and
purposes therein mentioned and set forth.
On the _________ day of _____________________, 199_, 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
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, one of the corporations
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 by like order.
On the _____________ day of ____________________, 199_,
before me appeared ______________________, to me personally
known, who, being by me duly sworn, did say that he is a
________________ of THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, and
that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of
its Board of Directors, and he acknowledged said instrument to be
the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in said County and State the day
and year last above written.
.................................................................
EXHIBIT 5(a)
January 9, 1996
Arkansas Power & Light Company
425 West Capitol, 40th Floor
Little Rock, Arkansas 72201
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3,
including the exhibits thereto, which Arkansas Power & Light
Company (the "Company") proposes to file with the Securities
and Exchange Commission (the "Commission") on or shortly after
the date hereof, for the registration under the Securities Act
of 1933, as amended, of $300,000,000 in aggregate principal
amount of its Debt Securities (the "Securities") to be issued
in one or more new series, and for the qualification under the
Trust Indenture Act of 1939, as amended, of the Company's
Indenture for Debt Securities, as proposed to be supplemented,
under which the Securities are to be issued (the "Indenture").
We advise you that in our opinion:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Arkansas.
(2) All action necessary to make valid and legal
the proposed issuance and sale by the Company of the
Securities will have been taken when:
(a) the Company's said Registration
Statement on Form S-3, as it may be amended, shall
have become effective in accordance with the
applicable provisions of the Securities Act of 1933,
as amended, and a supplement or supplements to the
prospectus specifying certain details with respect
to the offering or offerings of the Securities shall
have been filed with the Commission, and the
Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended;
(b) appropriate orders shall have
been issued by the Arkansas Public Service
Commission and the Tennessee Public Service
Commission authorizing the issuance and sale of the
Securities;
(c) appropriate action shall have
been taken by the Board of Directors of the Company
and/or by the Executive Committee thereof and/or by
an Authorized Officer thereof for the purpose of
authorizing the consummation of the issuance and
sale of the Securities;
(d) the specific terms of each
Security shall have been determined by supplemental
indenture, board resolution, or officer's
certificate; and
(e) the Securities shall have been
issued and delivered for the consideration
contemplated by, and otherwise in conformity with,
the acts, proceedings, and documents referred to
above.
(3) When the foregoing steps applicable to the
Securities shall have been taken, the Securities will
have been legally issued and will be valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization, or other laws affecting the enforcement
of mortgagees' and other creditors' rights.
This opinion does not pass upon the matter of
compliance with "blue sky" laws or similar laws relating to
the sale or distribution of the Securities by underwriters.
We are members of the Arkansas Bar and do not hold
ourselves out as experts on the laws of any other state. As
to all matters of New York law, we have relied upon an
opinion of even date herewith addressed to you by Reid &
Priest LLP, of New York, New York.
We hereby consent to the use of this opinion as an
exhibit to the Company's Registration Statement on Form S-3
and consent to such references to our firm as may be made in
the Registration Statement and in the Prospectus constituting
a part thereof.
Very truly yours,
FRIDAY, ELDREDGE & CLARK
EXHIBIT 5(b)
January 9, 1996
Arkansas Power & Light Company
425 West Capitol, 40th Floor
Little Rock, Arkansas 72201
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3,
including the exhibits thereto, which Arkansas Power & Light
Company (the "Company") proposes to file with the Securities
and Exchange Commission (the "Commission") on or shortly after
the date hereof, for the registration under the Securities Act
of 1933, as amended, of $300,000,000 in aggregate principal
amount of its Debt Securities (the "Securities") to be issued
in one or more new series, and for the qualification under the
Trust Indenture Act of 1939, as amended, of the Company's
Indenture for Debt Securities, as proposed to be supplemented,
under which the Securities are to be issued (the "Indenture").
We advise you that in our opinion:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Arkansas.
(2) All action necessary to make valid and legal
the proposed issuance and sale by the Company of the
Securities will have been taken when:
(a) the Company's said Registration
Statement on Form S-3, as it may be amended, shall
have become effective in accordance with the
applicable provisions of the Securities Act of 1933,
as amended, and a supplement or supplements to the
prospectus specifying certain details with respect
to the offering or offerings of the Securities shall
have been filed with the Commission, and the
Indenture shall have been qualified under the Trust
Indenture Act of 1939, as amended;
(b) appropriate orders shall have
been issued by the Arkansas Public Service
Commission and the Tennessee Public Service
Commission authorizing the issuance and sale of the
Securities;
(c) appropriate action shall have
been taken by the Board of Directors of the Company
and/or by the Executive Committee thereof and/or by
an Authorized Officer thereof for the purpose of
authorizing the consummation of the issuance and
sale of the Securities;
(d) the specific terms of each
Security shall have been determined by supplemental
indenture, board resolution or officer's
certificate; and
(e) the Securities shall have been
issued and delivered for the consideration
contemplated by, and otherwise in conformity with,
the acts, proceedings and documents referred to
above.
(3) When the foregoing steps applicable to the
Securities shall have been taken, the Securities will
have been legally issued and will be valid and binding
obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of
mortgagees' and other creditors' rights.
This opinion does not pass upon the matter of
compliance with "blue sky" laws or similar laws relating to
the sale or distribution of the Securities by underwriters.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As
to all matters of Arkansas law, we have relied upon an opinion
of even date herewith addressed to you by Friday, Eldredge &
Clark, of Little Rock, Arkansas.
We hereby consent to the use of this opinion as an
exhibit to the Company's Registration Statement on Form S-3
and consent to such references to our firm as may be made in
the Registration Statement and in the Prospectus constituting
a part thereof.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our reports dated
February 21, 1995, on our audit of the financial statements
and financial statement schedule of Arkansas Power & Light
Company as of and for the year ended December 31, 1994,
which reports are included in the Company's Annual Report on
Form 10-K. We also consent to the reference to our firm
under the caption "Experts and Legality."
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
January 5, 1996
EXHIBIT 23(d)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Arkansas Power & Light Company on
Form S-3 of our reports dated February 11, 1994 appearing in
the Annual Report on Form 10-K of Arkansas Power & Light
Company for the year ended December 31, 1994, and to the
references to us under the heading "Experts and Legality" in
the Prospectus which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New Orleans, Louisiana
January 8, 1995
Exhibit 25
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Arkansas Power & Light Company
(Exact name of obligor as specified in its charter)
Arkansas 71-0005900
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
425 West Capitol Avenue
Little Rock, Arkansas 72201
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a)Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State
House, Albany, New York 12110. Board of Governors of the
Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington,
D.C., 20429.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee
as now in effect, including the Organization Certificate and
the Certificates of Amendment dated February 17, 1969, August
31, 1977, December 31, 1980, September 9, 1982, February 28,
1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference).
3. None, authorization to exercise corporate trust
powers being contained in the documents identified above as
Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 33-84460, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
7. A copy of the latest report of condition of the
Trustee, published pursuant to law or the requirements of its
supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Chemical Bank, a corporation organized and
existing under the laws of the State of New York, has duly
caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City
of New York and State of New York, on the 4th day of January,
1996.
CHEMICAL BANK
By /s/W. B. Dodge
W. B. Dodge
Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 5,319
Interest-bearing balances 3,591
Securities:
Held to maturity securities 6,402
Available for sale securities 22,966
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold 1,088
Securities purchased under agreements to resell 1,015
Loans and lease financing receivables:
Loans and leases, net of unearned income $76,064
Less: Allowance for loan and lease losses 1,878
Less: Allocated transfer risk reserve 104
-------
Loans and leases, net of unearned income,
allowance, and reserve 74,082
Trading Assets 28,967
Premises and fixed assets (including capitalized leases) 1,380
Other real estate owned 65
Investments in unconsolidated subsidiaries and associated 160
companies
Customer's liability to this bank on acceptances outstanding 1,187
Intangible assets 467
Other assets 6,418
---------
TOTAL ASSETS $153,107
=========
<PAGE>
LIABILITIES
Deposits
In domestic offices $44,067
Noninterest-bearing $14,227
Interest-bearing 29,840
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's 37,004
Noninterest-bearing $ 173
Interest-bearing 36,831
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased 16,136
Securities sold under agreements to repurchase 1,274
Demand notes issued to the U.S. Treasury 903
Trading liabilities 22,513
Other Borrowed money:
With original maturity of one year or less 11,674
With original maturity of more than one year 613
Mortgage indebtedness and obligations under capitalized
leases 16
Bank's liability on acceptances executed and outstanding 1,190
Subordinated notes and debentures 3,411
Other liabilities 6,333
TOTAL LIABILITIES 145,134
--------
EQUITY CAPITAL
Common stock 620
Surplus 4,611
Undivided profits and capital reserves 2,890
Net unrealized holding gains (Losses)
on available-for-sale securities (156)
Cumulative foreign currency translation adjustments 8
TOTAL EQUITY CAPITAL 7,973
----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL $153,107
==========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank,
do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the appropriate Federal
regulatory authority and is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance
with the instructions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
