Exhibit B-4(c)
RIVER FUEL TRUST #1
___________________
NOTE AGREEMENT
___________________
Dated as of December 14, 1995
$30,000,000
INTERMEDIATE TERM SECURED NOTES
6.34% Series B, Due December 22, 0000
XXXXX XXXX XXXXX #0
x/x XXXXXX XXXXXX TRUST COMPANY
OF NEW YORK, as trustee
000 XXXX 00xx XXXXXX, 00xx Xxxxx
XXX XXXX, XXX XXXX 00000
As of December 14, 1995
To Each of the Purchasers
Listed in Exhibit A hereto
Re: Intermediate Term Secured Notes,
Series B, Due December 22, 1998
Dear Sirs:
River Fuel Trust #1 (the "Trust"), a trust formed pursuant
to the Trust Agreement dated as of December 20, 0000 (xxx "Xxxxx
Xxxxxxxxx"), xxxxx Xxxxxx Xxxxxx Trust Company of New York, as
trustee (the "Trustee"), Xxxxxx Guaranty Trust Company of New
York, as trustor, and Arkansas Power & Light Company (the
"Lessee"), as beneficiary, hereby agrees with you as follows:
DEFINITIONS.
Certain terms are used in this Agreement as specifically
defined herein. Those definitions are contained or referred to
in Section 11.1 hereof.
PURCHASE AND SALE OF THE NOTES.
The Notes. The Trust Agreement authorizes the issuance of
IT Notes and the Trust proposes to issue and sell at the Closing
the Trust's Intermediate Term Secured Notes, Series B, due
December 22, 1998, in the original aggregate principal amount of
$30,000,000 pursuant to the provisions of this Agreement and of
an identical Agreement with each of the other Purchasers listed
in Exhibit A hereto (each of such purchasers being hereinafter
referred to individually as a "Purchaser" and all of such
purchasers being hereinafter referred to collectively as the
"Purchasers"). The term the "Notes" shall mean said $30,000,000
of Intermediate Term Secured Notes, Series B, due December 22,
1998, and shall include any of the notes delivered in exchange
therefor or upon the transfer or replacement thereof as provided
herein; and the term "Note" shall mean any one of the Notes.
Each Note shall be issued substantially in the form set forth in
Exhibit B hereto in the denomination of $1,000 or an integral
multiple thereof, shall be dated the date of its issuance, and
shall bear interest on the unpaid principal amount thereof from
the date of issuance at the rate of 6.34% per annum (computed on
the basis of a 360-day year and a 30-day month), payable
semiannually in arrears on the 15th day of June and December in
each year, commencing June 15, 1996, provided that the final
interest payment shall be payable at the maturity of the Notes
rather than December 15, 1998 and shall be executed in the name
and on behalf of the Trust by one of the Trustee's Vice
Presidents or Assistant Vice-Presidents thereunto duly
authorized.
Other Purchasers. Contemporaneously with the execution of
this Agreement, the Trust is executing an identical (except for
the name of the Purchaser) agreement with each other Purchaser
pursuant to which the Trust will issue and sell Notes to such
other Purchaser in the aggregate principal amount set opposite
the name of such Purchaser in Exhibit A hereto. The sale of the
Notes to each Purchaser is a separate transaction in which each
Purchaser shall act for itself severally and not jointly with the
other Purchasers. Such identical agreements with you and with
the other Purchasers are sometimes hereinafter referred to as the
"Agreements".
The Closing. The Trust agrees to issue and sell to you, in
reliance upon your representations and warranties in Section 2.5
hereof, and subject to the terms and conditions and in reliance
upon the representations and warranties of the Trust set forth in
this Agreement and of the Lessee set forth in the certificate
referred to in Section 4.2(b)(ii) hereof, you agree to purchase
from the Trust at the Closing the principal amount of Notes set
opposite your name and specified in Exhibit A hereto for purchase
by you, in each case at a price equal to 100% of such principal
amount. The Closing to release all documents from escrow and to
deliver the Notes to you and make payment therefor shall be held
at 9:30 A.M., New York time, on December 22, 1995 (or such later
date, not in any case later than December 31, 1995, as you and
the Trust may agree upon). Preliminary closing in escrow shall
take place at 10 A.M., New York time, on December 14, 1995 at the
offices of Ropes & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
Unless otherwise requested by you, the Notes to be delivered to
you at the Closing shall consist of a single Note payable to you
or your nominee or registered assigns in the principal amount set
opposite your name and specified in Exhibit A for purchase by
you. You will pay for the Note or Notes delivered to you as
aforesaid by causing payment, in immediately available funds, to
be wire transferred to Account No. 00000000 (entitled the "River
Fuel Trust #1 Collateral Account") at Xxxxxx Guaranty Trust
Company of New York. If at the Closing the Trust shall fail to
tender the Notes to you as provided herein or if any of the
conditions set forth in Section 4.2 hereof shall not have been
fulfilled to your satisfaction, you shall, at your election, be
relieved of all obligations under this Agreement, without thereby
waiving any other rights you may have be reason of such failure
or such non-satisfaction.
Use of Proceeds. The Trust will apply the proceeds of the
sale of the Notes solely in accordance with the terms and
limitations of the Basic Agreements. The proceeds of the sale of
the Notes sold at the Closing shall be paid into the Collateral
Account to be applied forthwith to the repayment of $25,000,000
principal amount of Series A IT Notes which mature on December
22, 1995 and the balance to be applied ultimately toward the
purchase price of additional Nuclear Fuel in accordance with the
directions of the Lessee.. The Trust will not, directly or
indirectly, use any of the proceeds of the sale of the Notes for
the purpose of purchasing or carrying any "margin security"
within the meaning of Regulation G of the Board of Governors of
the Federal Reserve System or otherwise take or permit any action
which would cause the making of the Agreements or the sale of the
Notes to violate such Regulation G, Regulation T, Regulation U,
Regulation X or any other regulation of the Board of Governors of
the Federal Reserve System (12 C.F.R. Part II, as from time to
time in effect, applicable to the Trust.
Purchase for Investment. You represent and warrant to the
Trust that you will acquire the Notes to be purchased by you for
your own account (or for a separate account under your sole
control and discretion), for investment and not with a view to
the distribution or any disposition thereof or any beneficial
interest therein, and that you have no present intention of
making any such distribution or disposition; provided, however,
that the disposition of your property shall at all times be and
remain within your control. You have received a copy of the
Private Placement Memorandum referred to in Section 4.2(b)(ii)
hereof. Your acquisition of the Notes at the Closing shall
constitute your confirmation of said representation and warranty.
REPRESENTATIONS AND WARRANTIES.
The Trust represents and warrants that:
Organization, Authorization of the Trust. The Trust is a
trust duly created and validly existing under the laws of the
State of New York and has all requisite power and authority to
own its assets, to carry on its business as now conducted and now
proposed to be conducted, to enter into the Agreements, to issue
and sell the Notes and to carry out the terms of the Agreements
and the Notes and of the Credit Agreement, the Depositary
Agreement and each of the Basic Agreements. The Trust has all
necessary power and has taken all action required to make all of
the provisions of the Agreements, the Notes, the Credit
Agreement, the Depositary Agreement, each of the Basic Agreements
and any other agreements and instruments executed in connection
herewith and therewith by which the Trustee or the Trust Estate
is bound, the valid and binding obligations of the Trust that
they purport to be.
Due Execution and Delivery. The Agreements, the Notes, the
Credit Agreement, the Depositary Agreement and each of the Basic
Agreements to which the Trust is a party and the other
certificates and documents signed or to be signed on behalf of
the Trust by the Trustee have been or will be duly executed and
delivered by one of the Trustee's employees who is, or at the
time of the execution and delivery thereof on behalf of the Trust
will be, duly authorized to effect such execution and delivery,
and all such agreements, certificates and documents (collectively
"Documents") when executed and delivered will be legal, valid and
binding obligations of the Trust, enforceable in accordance with
their terms, except that enforcement of the rights and remedies
created by the Documents, is subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and (ii) to
general equitable principles (regardless or whether such
enforceability is considered in a proceeding in equity or at
law).
Financial Statements; Business. The Trust has furnished you
a copy of its statement of receipts and disbursements for the
eleven months ended November 30, 1995 and, by the Closing, the
Trust shall provide you a pro forma balance sheet as at the date
of the Closing, taking into account the sale of Notes hereunder,
the application of the proceeds thereof and the other
transactions contemplated hereby and by the other Basic
Agreements. The Trust is not a party to any instrument providing
for the incurrence by the trust of indebtedness for money
borrowed other than the Credit Agreement, the Basic Agreements
and the Depositary Agreement. The Trust has transacted no
business except that which is contemplated by the Credit
Agreement, the Basic Agreements and the agreements referred to
therein. The chief place of business of the Trust and the place
where it keeps its records concerning its accounts, contract
rights, chattel paper and general intangibles is in New York
County. The Trust's only place of business is in New York State.
Title to Properties. The Trust has title to all of the
Trust's assets owned or purported to be owned by the Trust as of
the date hereof as shown on the pro forma balance sheet delivered
pursuant to Section 3.3 hereof, including without limitation the
Nuclear Fuel referred to in Schedule A to the Lease Agreement as
of the Closing Date and all such assets are free of any Liens,
except those which are of a character permitted by Section 8.12
hereof; provided, however, that, with respect to any title to
assets acquired from the Lessee or any other vendor as provided
in the Lease Agreement, the Trust (except with respect to its own
actions) is making this representation and warranty only to the
extent of and entirely in reliance on representations and
warranties made by the Lessee or such other vendor in the
Agreement of Sale or in the Vendors' Bills of Sale delivered from
time to time pursuant to the Lease Agreement or in other
instruments and has made no independent investigation with
respect thereto.
Litigation. There is no litigation at law or in equity, nor
any proceeding or investigation before any court, board or other
governmental or administrative agency or arbitrator, pending or
to the knowledge of the Trustee threatened, which may result in
any material judgment or liability against the Trust not fully
covered by insurance or which may otherwise result in any
material adverse change in the business, assets or condition,
financial or other, of the Trust, or which questions the validity
or enforceability of the Agreements, the Notes, the Credit
Agreement, the Depositary Agreement or any of the Basic
Agreements or of any action taken or to be taken by the Trust
pursuant to or in connection with the Agreements, the Credit
Agreement, the Depositary Agreement or the Basic Agreements; and
no judgment, decree or order has been issued against the Trust or
the trustee which has, or may have, any material adverse effect
on the business, assets or condition, financial or other, of the
Trust.
Conformity with Other Agreements. The Agreements do not
contain any provision, term or condition which is inconsistent
with, or contrary to, the Security Agreement, or which would
violate, or cause the Trust to be in violation of, the Credit
Agreement, the Depositary Agreement or any of the Basic
Agreements. Neither the execution and delivery of the Agreements
or the Notes nor the consummation of any transaction contemplated
hereby or thereby has constituted or resulted in or will
constitute or result in a breach of the provisions of any other
agreement or instrument by which the Trust or the Trustee is
bound or result in the creation under any agreement or instrument
of any Lien upon any of the assets of the Trust, except as
permitted by Section 8.12 hereof.
No Legal Obstacle to Agreement. The execution, delivery and
performance, or the acceptance, as the case may be, by the Trust
of this Agreement, the Credit Agreement, the Basic Agreements,
the Nuclear Fuel Contracts, and the Notes does not and will not
violate any provision of any law or regulation or of any writ of
decree of any court or governmental instrumentality applicable to
the Trust, and no consent, license, approval, order or
authorization of, or filing, registration or declaration with,
any governmental authority, bureau or agency or any court of
other Person is required in connection with the execution,
delivery, performance, acceptance, validity or enforceability of
any of the above-mentioned documents and instruments (provided
that no representation is given with respect to the Nuclear Fuel
Contracts insofar as the respective manufacturers are concerned),
except for (i) a general license for the Trust to own Nuclear
Fuel from the Nuclear Regulatory Commission (currently granted
under 10 C.F.R. Sections 40.21 and 70.20), and (ii) the Orders
dated December 20, 1988 and July 7, 1989, of the Securities and
Exchange Commission ("SEC") authorizing the issuance of up to
$185 million aggregate principal amount of IT Notes at any one
time outstanding, all of which licenses, orders, approvals and
filings have been duly obtained or made and are final and are in
full force and effect, and none of such licenses, orders,
approvals and filings is the subject of any pending or, to the
best of the Trustee's knowledge, any threatened attachment by
direct proceedings or otherwise; and except for a special license
to possess Nuclear Fuel from the Nuclear Regulatory Commission
that the Trust or the Collateral Agent may require to take
possession of the Nuclear Fuel in event of default, provided that
no representation is given with respect to Federal, New York or
Arkansas banking or trust laws or regulations or the securities
or blue sky laws or regulations of any State.
Investment Company Status. The Trust is not an "investment
company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as
amended. The Trust is not a "public-utility company," or a
"holding company," or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
The Security Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the creation of the
security interest in the Collateral in favor of the Secured
Parties under the Security Agreement does not require an
indenture to be qualified under said Act.
Absence of Foreign Status.
Absence of Foreign Status. Neither the Trust nor the
Trustee is (i) a Person included within the definition of
"designated foreign country" or "national" of a "designated
foreign country" in Executive Order No. 9193, as amended or in
the Foreign Asset Control Regulations (31 C.F.R., Chapter V, Part
500, as amended), in the Cuban Assets Control Regulations (31
C.F.R., Chapter V Part 515, as amended) or within the meaning of
any of such orders or regulations, or of any regulations,
interpretations or rulings issued thereunder, or in violation of
such orders or regulations or of any regulations, interpretations
or rulings issued thereunder or (ii) an entity listed in Section
550.304 of the Foreign Funds Control Regulations (31 C.F.R.,
Chapter V, Part 550, as amended).
Pension Plan. The Trust has no pension plans which are
subject to the provisions of Title IV of the Federal Employee
Retirement Income Security Act of 1974, as amended, and the
applicable rules and regulations issued thereunder.
Margin Stock. The Trust does not presently own any
shares of "margin stock" within the meaning of Regulation G of
the Board of Governors of the Federal Reserve System or any
regulations, interpretations or rulings thereunder.
Private Offering. Neither the Trustee, nor to the knowledge
of the Trustee, the Lessee nor any Person authorized or employed
by any of them as agent, broker, dealer or otherwise (the only
such agent being Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated) in connection with the offering or sale of the
Notes has directly or indirectly offered any of the Notes or any
similar Securities (other than commercial paper) for sale to, or
solicited offers to buy any thereof from, or otherwise approached
or negotiated with respect thereto with, any prospective
purchaser other than you, the other Purchasers, and not more than
25 other prospective purchasers. To the knowledge of the
Trustee, based on the representation of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx, Incorporated, each offeree was an "accredited
investor" as defined in Rule 501 under the Securities Act of 1933
as amended. The Trust agrees that it will not, either directly
or indirectly, offer the Notes or any part thereof or any similar
Securities (other than commercial paper) for issue or sale to, or
solicit any offer to acquire any of the same from, anyone, or
take any other action which would subject the issuance and sale
of the Notes to the provisions of Section 5 of the Securities Act
of 1933, as amended.
Disclosure. None of the representations in this Agreement,
the pro forma balance sheet referred to in Section 3.3 hereof,
Schedule A to the Lease Agreement referred to in Section 3.4
hereof, or in any other document, certificate, or statement
furnished to you by or on behalf of the Trust in connection with
the transactions contemplated hereby contained as of its date any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the representations
contained herein or the statements contained therein not
misleading in light of the circumstances under which they were
made. There is no fact within the knowledge of the Trustee which
has not been disclosed herein or therein and which materially
adversely affects or in the future, so far as the Trustee can not
foresee, may so affect, the business, assets or condition,
financial or otherwise, of the Trust.
No Default. No Default or Event of Default has occurred
under the Credit Agreement and, to the knowledge of the Trustee,
no event of termination has occurred under Section 20 of the
Lease Agreement as of the date hereof.
Security. The Security Agreement is effective to create in
favor of the Collateral Agent as agent for the Secured Parties a
legal, valid and enforceable first priority security interest in
all of the Collateral, and a legal, valid and enforceable
purchase money security interest in all of the Trust's right,
title and interest in the Nuclear Fuel Contracts (as defined in
the Security Agreement) and the Nuclear Fuel referred to in
Schedule A to the Lease Agreement referred to in Section 3.4
hereof, including, without limitation, any Nuclear Fuel to be
acquired, stored, fabricated, or processed with the funds being
made available to the Trust pursuant to this Agreement, and all
filings, recordings and other actions that are necessary in order
to establish, preserve and perfect the Collateral Agent's lien on
and security interest in the Collateral as a legal, valid and
enforceable first lien and security interest, or purchase money
security interest, as the case may be, have been duly effected,
except that the foregoing representation shall not be deemed to
be violated as a result of the existence or priority of any lien
permitted by Section 15 of the Lease Agreement.
Permitted Indebtedness. As of the date hereof and after
giving effect to the sale of the Notes pursuant to this
Agreement, the aggregate SLV of the Nuclear Fuel plus any accrued
Daily Lease Charges equals or exceeds the sum of the Outstandings
under the Credit Agreement plus the aggregate outstanding
principal amount of all IT Notes.
CLOSING CONDITIONS.
Condition Precedent to Trust's Obligations. The Trust's
obligation to issue and deliver the Notes to be delivered to you
at the Closing shall be subject to the receipt by the Trust at or
prior to the time of the Closing of (1) supplemental instructions
of the Lessee authorizing the Trust to execute and deliver the
Agreements and to issue and sell the Notes; (2) the consent of
the Lessee to the execution and delivery by the Trust of the
Agreements and the issue of the Notes; and (3) copies of the
opinions of Friday, Xxxxxxxx & Xxxxx and Xxxx & Priest LLP
referred to in Section 4.2(a).
Conditions Precedent to Purchaser's Obligations. Your
obligation to purchase and pay for the Notes to be delivered to
you at the Closing shall be subject to the satisfaction of the
following conditions precedent prior to or contemporaneously with
the delivery of the Notes to you at the Closing;
Opinions of Counsel. You shall have received at the
Closing the opinions of Xxxxxx Xxxxxxx & Xxxxxxx, counsel for
the Trustee, in the form of Exhibit E-1 and E-1A hereto,
respectively, Friday, Xxxxxxxx & Xxxxx and Xxxx & Priest LLP,
counsel for the Lessee, in the form of Exhibits E-2 and E-3
hereto, respectively, and Ropes & Xxxx, your special counsel, in
the form of Exhibit E-4 hereto.
Representations True.
The representations and warranties contained in Section
3 hereof and otherwise made by or on behalf of the Trust in
writing in connection with the transactions contemplated hereby
shall be true and correct in all material respects at and as of
the time of the Closing with the same effect as though made at
and as of the time of the Closing; and no condition or event
which, if the Notes had been outstanding from the date hereof,
would constitute a Default as defined in Section 11 hereof shall
have occurred and be continuing at the time of Closing.
You shall have received a certificate in the form of
Exhibit C hereto signed by a Lessee Representative and the
representations and warranties of the Lessee contained therein
shall be true and correct at and as of the time of the Closing.
Compliance with this Agreement. The Trust shall have
performed and complied with all agreements and conditions
contained herein which are required to be performed or complied
with by the Trust before or at the Closing.
Trust's Certificate. You shall have received at the
Closing a certificate dated the date thereof and signed by or on
behalf of the Trust, certifying that the conditions specified in
Sections 4.2(b)(i) and 4.2(c) have been fulfilled.
Lessee's Letter Agreement. You shall have received at
the Closing a letter agreement substantially in the form of
Exhibit D to this Agreement (the "Lessee's Letter Agreement")
signed by the Lessee.
Simultaneous Sales. At the Closing the Trust shall have
simultaneously sold to the other Purchasers the principal amount
of the Notes set opposite their names in Exhibit A hereto and
shall have received from them payment therefor.
Legality. The purchase of and payment for the Notes
shall not be prohibited by any applicable law or governmental
regulations and shall not subject you to any penalty or other
onerous condition under or pursuant to any applicable law or
governmental regulation. The Notes shall at the time of the
Closing qualify as a legal investment for insurance companies
under New York Insurance Law and you shall have received such
evidence as you may reasonably request to establish compliance
with this condition.
Private Placement Number. A Private Placement Number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation
with the Securities Valuation Office of the National Association
of Insurance Commissions) shall have been obtained for the Series
D Notes.
Payment of Fees. The Trust shall have made satisfactory
arrangements for the payment of the legal fees and expenses of
your special counsel, Ropes & Xxxx.
Proceedings Satisfactory; Basic Agreements. All
proceedings taken in connection with the sale of the Notes and
all documents and papers relating thereto shall be satisfactory
to you and the other Basic Agreements, in form satisfactory to
you, shall be executed and delivered simultaneously herewith.
You and your special counsel shall have received copies of such
documents and papers as you or they may reasonably request in
connection therewith or as a basis for your special counsel's
closing opinion, all in form and substance satisfactory to you.
Information. The Trust shall have delivered to you such
information as you shall have reasonably requested for use as a
basis for any filings which you may be required to make with
certain regulatory bodies and with the National Association of
Insurance Commissioners.
PAYMENT, REGISTRATION, TRANSFER, EXCHANGE AND REPLACEMENT OF
THE NOTES.
Payment Address. The Trust shall make or shall cause the
Registrar to make all payments on account of interest and
principal to be paid in respect of the Notes held by each of the
Purchasers by wire transfer in immediately available funds on the
scheduled payment date at the payment address of such Purchaser
specified in Exhibit A hereto, or in such other manner and at
such other address as shall be designated by notice to the Trust
and the Registrar in respect of Notes held by any Purchaser or by
any other Noteholder. Payments on account of each Note shall be
made without the necessity of any presentment or notation of
payment, and the amount of principal so paid on any Note shall be
regarded as having been retired and canceled at the time of
payment. Any Note with respect to which interest and principal
shall have been fully paid shall be surrendered to the Trust (or,
at the Trust's direction, to the Registrar) and shall be retired
and canceled. The holder of any Note, before any transfer
thereof, shall make a notation thereon of the date to which
interest has been paid and of all principal payments theretofore
made thereon and shall in writing notify the Trust of the name
and address of the transferee.
Registration, Transfer or Exchange. So long as any of the
Notes remains unpaid, the Trust shall cause the Registrar to keep
at its principal office referred to in Section 11.9 hereof (or at
such other office of the Registrar within the State of New York
as the Trust or the Registrar shall have identified by written
notice to each of the Noteholders) a register in which shall be
entered the names and addresses of all Noteholders and the
particulars of those Notes held by them and of all transfers of
such Notes. The holder in whose name any Note shall be so
registered shall be deemed and treated as the owner thereof for
all purposes of the Agreements and neither the Trust nor the
Registrar shall be affected by any notice to the contrary. For
the purpose of any request, direction or consent hereunder, the
Trust and the Registrar may deem and treat the holder of any Note
as the owner thereof without production of such Note. Any
Noteholder may at any time and from time to time prior to
maturity or redemption thereof surrender any Note held by it for
transfer or exchange at said office of the Registrar; provided,
however, that the proposed transfer or exchange does not violate
the Securities Act of 1933, as amended, or any other applicable
law relating to the sale of securities and the Trust may require,
as a condition to the registration of any transfer, an opinion of
counsel for the transferring Noteholder (which may be in-house
counsel) to the effect that such transfer is exempt from the
registration requirements of the Securities Act of 1933, as
amended, and if applicable, any state securities law. If such
opinion is not provided by in-house counsel and if the transfer
shall be to an "accredited investor" as defined in Rule 501(a)
under the Securities Act of 1933, as amended, the cost of such
opinion shall be borne by the Trust. Within a reasonable time
thereafter and without expense (other than transfer taxes, if
any) to such holder, the Trust shall cause the Registrar to issue
in exchange therefor another Note or Notes, dated the date to
which interest has been paid on each Note surrendered or dated
the date of such surrendered Note if no interest has theretofore
been paid thereon, for the same aggregate principal amount as the
unpaid principal amount of the Note or Notes so surrendered,
having the same maturity date and rate of interest, containing
the same provisions and subject to the same terms and conditions
as the Note or Notes so surrendered. Each such new Note shall be
registered in the name of such Person or Persons as the holder of
such surrendered Note or Notes may designate in writing, and such
exchange shall be made in a manner such that no additional or
lesser amount of principal or interest shall result. The Trust
will pay or will cause the Registrar to pay shipping and
insurance charges, from and to each Noteholder's main office,
involved in the exchange or transfer or any Note.
Replacement. Upon receipt of evidence reasonably
satisfactory to the Trust of the loss, theft, destruction or
mutilation of any Note and, if requested in the case of any such
loss, theft or destruction, upon delivery of an indemnity
agreement or security reasonably satisfactory to the Trust, or,
in the case of any such mutilation, upon surrender and
cancellation of such Note, the Trust will cause the Registrar to
issue a new Note, of like tenor and amount and dated the date to
which interest has been paid, or dated the date of such lost,
stolen, destroyed or mutilated Note if no interest has
theretofore been paid thereon, in lieu of such lost, stolen,
destroyed or mutilated Note.
Notwithstanding the foregoing provisions of this Section
5.3, if any Note of which you or your nominees is the holder is
lost, stolen or destroyed, the affidavit of your Treasurer or any
officer setting forth the circumstances with respect to such
loss, theft or destruction shall be accepted as satisfactory
evidence thereof, and no indemnity or security shall be required
as a condition to the execution and delivery by the Trust and the
Registrar of a new Note in replacement of such lost, stolen or
destroyed Note other than your written agreement to indemnify the
Trust and the Registrar.
REDEMPTION PROVISIONS. The Trust covenants and agrees that
so long as any of the Notes are outstanding it will redeem the
Notes as follows:
Mandatory Redemption upon Termination of Lease Agreement.
The Trust shall, upon the occurrence of any "Event of
Termination" described in Section 20(a)(ii) through 20 (a)(x) of
the Lease Agreement, redeem or shall cause the Registrar to
redeem the entire outstanding principal amount of the Notes
without premium on the Termination Settlement Date. In the event
of a purchase of Nuclear Fuel by the Lessee pursuant to Section
10(f) of the Lease Agreement, the Trust shall redeem or shall
cause the Registrar to redeem without premium only that portion
of the principal amount of the Notes at the time outstanding
which bears the same relationship to the aggregate principal
amount of all IT Notes at the time outstanding as the SLV of the
Nuclear Fuel affected by such partial termination bears to the
SLV of all Nuclear Fuel. Upon any partial redemption of the
Notes, each Noteholder shall, if so requested by the Trust or the
Registrar, surrender to the Registrar all Notes held by such
Noteholder in exchange for a new Note or Notes in an aggregate
principal amount equal to the outstanding principal amount of the
surrendered Note or Notes, less the amount of such partial
redemption. Except as provided in this Section 6.1 or in Section
6.2 hereof, neither the Trust nor the Registrar may redeem the
Notes, in whole or in part, prior to the stated maturity thereof.
Optional Redemption of Notes. Subject to the provisions of
Section 6.7 hereof, the Trust shall, at the request of the
Lessee, redeem or shall cause the Registrar to redeem the entire
principal amount of the Notes outstanding, or any portion thereof
equal to or greater than $500,000 (the "Called Principal") at a
price equal to the sum of (i) the Called Principal, (ii) interest
accrued on the Called Principal through the Redemption Date (as
defined below) and (iii) the Yield Maintenance Premium, if any.
Notice of Redemption. Notice of each redemption of Notes
pursuant to Section 6.1 or 6.2 hereof shall be given by the Trust
not less than 30 nor more than 60 days before the redemption date
(the "Redemption Date") by mailing to each Noteholder an
irrevocable notice of intention to redeem specifying the date of
redemption, identifying the "Event of Termination" under the
Lease Agreement giving rise to such redemption (in the case of
redemption pursuant to Section 6.1), stating the aggregate
principal amount of Notes to be redeemed on such date and the
principal amount of the Notes to be redeemed on such date held by
the Noteholder to whom such notice is sent and accrued interest
applicable to such redemption. In the case of a redemption
pursuant to Section 6.2 hereof, a written calculation of the
redemption price shall be sent to holder of Notes to be redeemed
not later than 12 noon on the Business Day prior to the
Redemption Date.
Payment and Interest Cut-Off. Upon each redemption of
Notes, in whole or in part, the Trust shall pay or shall cause
the Registrar to pay to each holder thereof the amount of its
Notes to be redeemed together with the unpaid interest in respect
thereof accrued to the Redemption Date and the Yield Maintenance
Premium, if any. Notice of redemption having been given in
compliance with Section 6.3 hereof, the aggregate principal
amount of the Notes to be redeemed shall become due and payable
on the Redemption Date, and from and after said date (unless the
Trust or the Registrar shall default in paying the amounts then
due) interest on such principal amount of the Notes shall cease
to accrue.
Permanent Retirement of Notes. Notes redeemed in full or
otherwise acquired by the Trust or the Registrar shall be
permanently retired and canceled and shall not under any
circumstances be reissued or resold.
Selection of Notes for Redemption. Each redemption required
by the Agreements shall be made so that the Notes then held by
each Noteholder shall be redeemed in a principal amount in
integral multiples of $1,000 which shall bear the same ratio, as
nearly as possible, to the total principal amount being redeemed
as the principal amount of Notes then held by each Noteholder
shall bear to the aggregate principal amount of the Notes then
outstanding.
Repurchase of Notes. Neither the Trust nor the Registrar
will repurchase or make any offer to repurchase IT Notes unless
(i) such IT Notes are repurchased in order of maturity and (ii)
if the Trust or the Registrar has offered to purchase less than
all IT Notes with a given maturity date, then such IT Notes will
be repurchased pro rata from all holders of such IT Notes at the
time outstanding and upon the same terms.
TERMINATION OF LEASE AGREEMENT; AMENDMENT OF BASIC
AGREEMENTS AND NUCLEAR FUEL CONTRACT; ADDITIONAL COVENANTS. So
long as any IT Notes are outstanding:
Termination of Lease Agreement. The Trust shall not
terminate the Lease Agreement pursuant to Section 3(b) of the
Lease Agreement without receiving the prior written consent of
the holders of at least 66 2/3% in aggregate principal amount of
all IT Notes at the time outstanding.
Basic Agreements and Nuclear Fuel Contracts. The Trust
shall not enter into any amendment to or supplement of any Basic
Agreement or any written waiver or modification of the terms of
any Basic Agreement or enter into any amendment to or supplement
of any Nuclear Fuel Contract or any written waiver or
modification of the terms of any Nuclear Fuel Contract (unless,
in the case of Nuclear Fuel Contracts, such actions shall be
permitted under the Lease Agreement) without in each case
receiving the prior written consent of the holders of at least 66
2/3% in aggregate principal amount of all IT Notes at the time
outstanding.
Additional Covenants. The Trust shall not agree to any
affirmative or negative covenant with respect to the business,
operations, properties or condition, financial or otherwise, of
the Trust with any Person who shall extend or propose to extend
credit to the Trust unless either (x) such covenant is in
existence on the date hereof and a copy of the document
containing such covenant has been provided to you or (y) subject
to Section 11.6(a), such covenant is contained in an amendment of
or supplement to the Agreements or one of the Basic Agreements.
COVENANTS. Without limiting any other covenants and
provisions hereof, the Trust covenants and agrees that, so long
as any of the Notes is outstanding, it will perform and observe
the following covenants and provisions:
General Obligations. The Trust will (i) duly observe and
conform to all valid requirements of any governmental authorities
relative to the conduct of its business or to the ownership of
its assets, (ii) preserve and keep in full force and effect the
existence of the Trust and the rights, privileges and franchises
of the Trust and (iii) obtain, maintain and keep in full force
and effect all consents, permits, licenses, approvals, orders and
authorizations which are necessary to properly carry out the
transactions contemplated to be performed by it by this
Agreement, the Notes and the Basic Agreements to which it is a
party.
Books of Trust. The Trust will keep books of record and
account acceptable to you in relation to its business and
activities.
Notices. Upon obtaining knowledge thereof, the Trust will
promptly give written notice to you of (i) the occurrence of any
Default or Event of Default hereunder or any of the events set
forth in Sections 18, 19 or 20(a) of the Lease Agreement or any
"Default" or "Event of Default" under the Credit Agreement; (ii)
any litigation or proceedings with respect to the Trustee, or
affecting the Trust or any of its assets; and (iii) such other
information concerning the business, assets, or condition,
financial or otherwise, of the Trust as you may from time to time
reasonably request.
Payment of Taxes. The Trust will cause to be computed, paid
and discharged (subject to the provisions of Section 10.1 hereof)
when due all taxes, assessments and other governmental charges or
levies imposed upon the Trust, or upon any income or assets of
the Trust, prior to the day on which penalties are attached
thereto, unless and to the extent that the same shall be
contested in good faith by appropriate proceedings diligently
prosecuted and no foreclosure, distraint, sale or other similar
proceedings shall have commenced or been threatened.
Governmental Permits. The Trust will, to the extent
obtained or received by it, furnish or cause to be furnished to
you a copy of any authorization, license, permit, consent, order
or approval of any governmental authority obtained or required to
be obtained in connection with the transactions contemplated by
the Agreements, the Notes or any of the Basic Agreements.
Inspection. The Trust will permit any Person designated by
you to inspect any of the Property (subject to the provisions of
Section 12 of the Lease Agreement) or any of the books or
financial records of the Trust and to discuss the affairs,
finances and accounts of the Trust with the officers of the Trust
or the Trust's independent Certified Public Accountants, all at
such reasonable times and as you may reasonably request.
Financial Statements. The Trust will furnish to you, within
30 days after the close of each Calendar Quarter, a statement of
receipts and disbursements relating to the Trust for such quarter
and for the portion of the fiscal year then ended.
Copies of Documents. The Trust will promptly deliver to you
copies of all (i) amendments, modifications and waivers, (ii) all
requests for any such amendment, modification or waiver, and
(iii) any notice of an "Event of Default" received or delivered
by the Trust under or with respect to the Credit Agreement, the
Lease Agreement, any of the Basic Agreements or any of the IT
Note Agreements (or, to the extent requested by you, the
Depositary Agreement or Dealer Agreement), to the extent that the
same shall not have been delivered to you pursuant thereto.
Activities of Trust. The Trust will not engage in any
business or activity of any kind or enter into any transaction
which is not directly related to the purchase and sale and
leasing of Nuclear Fuel pursuant to the Lease Agreement and the
financing thereof in the manner contemplated by the Credit
Agreement, the Agreements, the Depositary Agreement and the Basic
Agreements.
Indebtedness. The Trust will not, directly or indirectly,
create, incur, assume or suffer to exist any indebtedness of any
kind for borrowed money, extensions of credit or the deferred
purchase price of property, except
the indebtedness evidenced by the IT Notes,
indebtedness evidenced by the Credit Agreement, the CP
Notes and the Loan Notes or any of their successors. No such
bank indebtedness shall constitute permitted indebtedness of the
Trust unless (i) the banks providing such credit facilities,
other than the Credit Agreement, shall have acknowledged and
agreed to the terms of the Basic Agreements, (ii) the banks
providing such credit facilities, including the banks
participating in the Credit Agreement, shall not be secured by
any collateral other than the Collateral described in the
Security Agreement in accordance with the terms thereof unless
all IT Notes at the time outstanding are secured equally and
ratably by such additional Collateral, (iii) indebtedness
incurred in connection with such bank credit facilities shall not
be guaranteed directly or indirectly by any Person nor shall any
bank providing such credit facilities be assured against loss or
nonpayment unless all IT Notes shall have the benefit of such
guaranty or assurance on a pro rata basis with the banks
providing such credit facilities, (iv) there shall not exist a
Default or an Event of Default hereunder at the time of execution
of any credit agreement with a bank other than the Credit
Agreement, and (v) immediately following the incurrence of any
indebtedness with respect to such bank credit facilities, the sum
of (a) the aggregate SLV of the Nuclear Fuel plus (b) any accrued
Daily Lease Charges plus (c) cash and investments held by the
Trust shall equal or exceed the sum of Outstandings under the
Credit Agreement and all other outstanding bank indebtedness plus
the aggregate outstanding principal amount of all IT Notes
(including the Notes), and
overnight borrowings from the Lessee, on an unsecured and
interest free basis, for the purpose of depositing funds in the
Commercial Paper Account, which funds shall be used solely to pay
matured or concurrently maturing CP Notes;
provided, however, that all indebtedness for borrowed money
(other than indebtedness evidenced by the IT Notes), in aggregate
principal amount (before discount) at any one time outstanding
shall not exceed $250,000,000 less the aggregate principal amount
of the IT Notes outstanding at such time, evidenced by one or
more IT Notes each of which complies with all of the following
requirements: No IT Note shall constitute permitted indebtedness
of the Trust unless (i) such IT Note shall not be secured by any
collateral other than the Collateral described in the Security
Agreement in accordance with the terms thereof, unless the Notes,
the CP Notes and the Loan Note and any other indebtedness
incurred in connection with bank credit facilities permitted
under Section 8.10(b) hereof are secured equally and ratably by
such additional collateral, (ii) such IT Note shall not be
guaranteed directly or indirectly by any Person nor shall the
holder thereof be assured against loss or nonpayment unless the
Notes, the CP Notes and the Loan Note and any other indebtedness
incurred in connection with bank credit facilities permitted
under Section 8.10(b) hereof shall have the benefit of such
guaranty or assurance on a pro rata basis with such IT Note,
(iii) there shall not exist a Default or an Event of Default
hereunder or a "Default" or "Event of Default" under the Credit
Agreement on the date of issuance of such IT Note, and (iv)
immediately following the issuance of such IT Note, the sum of
(a) the aggregate SLV of the Nuclear Fuel plus (b) any accrued
Daily Lease Charges plus (c) cash and investments held by the
Trust shall equal or exceed the sum of the Outstandings under the
Credit Agreement and any other indebtedness incurred in
connection with bank credit facilities permitted under Section
8.10(b) hereof plus the aggregate outstanding principal amount of
all IT Notes (including the Notes).
Guarantees. The Trust will not become or remain liable,
directly or contingently, in connection with any obligation of
any Person, whether by guaranty, endorsement (other than
endorsements of negotiable instruments for deposit or collection
in the ordinary course of business), agreement to purchase or
repurchase, agreement to supply or advance funds or otherwise.
Liens. The Trust will not create, incur, assume or suffer
to exist any Lien upon or with respect to any of the Trust's
Property, whether now owned or hereafter acquired, or assign or
otherwise convey any right to receive income except (i) Liens
created in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, under the Security Agreement and (ii)
Liens which Section 15 of the Lease Agreement allows the Lessee
to permit on the Trust Estate.
Distributions. The Trust will not declare or pay any
distribution (whether in cash or in Property) with respect to the
profits, assets or capital of the Trust or the Trustor's or the
Beneficiary's interest therein.
Investments; Loans. The Trust will not make or suffer to
exist any loans or advances to, or make any investments (by way
of transfer of Property, contributions to capital, purchase of
stock or securities or evidences of indebtedness, acquisition of
the business or assets, or otherwise) in, any Person except for
the purchase of Nuclear Fuel as contemplated by the Lease
Agreement and the investments permitted by Section 3.4 of the
Security Agreement.
Salaries. The Trust will not pay any salaries or wages.
Merger; Sales. The Trustee on behalf of the Trust will not
enter into any transaction of merger or consolidation, or
terminate, liquidate or dissolve itself (or suffer any
termination, liquidation or dissolution), or acquire or be
acquired by any Person, or otherwise change the form or
organization of its business, or convey, sell, lease or otherwise
dispose of any of its Property or business, except (i) for
transactions contemplated by the Lease Agreement, (ii) Liens
permitted by Section 8.12 hereof or (iii) in connection with the
appointment of a co-trustee, separate trustee or successor
trustee pursuant to Section 10.2 hereof.
Payments. The Trust will not make any payment or advance
any amounts to any Person unless it shall be expressly permitted
to make such payment by this Agreement, the Credit Agreement,
other bank credit facilities permitted under Section 8.10(b)
hereof, the Lease Agreement, the Dealer Agreement or an IT Note
Agreement.
Compliance with Agreements. The Trust will not fail to (i)
duly perform all obligations to be performed by it under each of
the Basic Agreements and (ii) upon instructions from the
Collateral Agent on behalf of the Secured Parties pursuant to
Section 6.2 of the Security Agreement, promptly take any and all
actions as may be necessary to enforce its rights under the Lease
Agreement and to enforce or secure the performance by the Lessee
of its obligations thereunder. Without limiting the generality
of the foregoing, the Trust shall, upon the written instructions
of the Lessee, file or cause to be filed all continuation
statements required under the Uniform Commercial Code, as from
time to time in effect in each applicable jurisdiction, with
respect to the Liens and security interests granted under the
Security Agreement in order to maintain a prior perfected
security interest in the Collateral. Not later than December 1,
1998, the Trust shall provide to the Collateral Agent and to each
Noteholder evidence satisfactory to each Noteholder of the due
recordation of such continuation statements.
Acceptance of Additional Nuclear Fuel Contracts. The Trust
shall not accept the assignment by the Lessee of all or any part
of the Lessee's rights in and to any additional Nuclear Fuel
Contracts except in accordance with the terms and provisions of
Section 4 of the Lease Agreement.
Investment Company. The Trust will not be an "investment
company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as
amended.
Public Utility Holding Company. The Trust will not be a
"public utility company," or a "holding company," or an
"affiliate" of a "holding company" or a "subsidiary" of a
"holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Accounts and Deposits. The Trust will not open, create or
maintain any bank account, or make any deposit with or in any
financial institution, except for the Commercial Paper Account
and the Collateral Account.
Expenses and Indemnity. Whether or not the transactions
contemplated hereby shall be consummated, the Trust will pay all
reasonable expenses (including the reasonable fees and expenses
of its counsel and your special counsel) in connection with the
preparation and reproduction of the Agreements and the Notes, and
also in connection with any amendments of or waivers under the
Agreements or the Notes, will indemnify you and hold you harmless
against all broker's and finder's fees, and will pay all your out-
of-pocket expenses reasonably incurred in connection with the
matters contemplated thereby, and, at your election, will
reimburse you for any such expenses paid by you.
In the event that it subsequently is determined that any tax
is due on the issue of the Notes or on your acquisition thereof,
or on any modification of the Notes or of the Agreements, the
Trust will pay or cause to be paid all such taxes and any
interest and penalties related thereto (excluding, however, any
transfer taxes), and will indemnify and save you and all holders
of the Notes harmless from any loss or damage of any kind
whatsoever resulting from or arising out of the nonpayment or
delay in the payment of such taxes. The obligations of the Trust
under this Section 8.23 shall survive the payment of the Notes.
In no event shall the Trust be required to pay any taxes based
upon your net income or profits or upon interest income arising
out of the Notes.
EVENTS OF DEFAULT; CONSEQUENCES
Events of Default. The occurrence of one or more of the
following events shall constitute an "Event of Default" under the
Agreements:
Principal Payments. The Trust fails to make any payment
of any part of the principal of, or the Yield Maintenance
Premium, if any, on any of the Notes when and as the same shall
become due and payable, whether at the stated maturity of the
Notes or at a date fixed for redemption or by acceleration or
otherwise; or
Interest Payments. The Trust fails to make any payment
of interest on any of the Notes when and as the same shall become
due and payable and any such default shall continue for a period
of ten days; or
Covenant Defaults. The Trust (i) fails to perform or
observe any covenant contained in Section 7 or Sections 8.9,
8.10, 8.11, 8.12 (with respect to Liens created by it), 8.13
through 8.17, 8.18(ii) (with respect to specific instructions
from the Collateral Agent), 8.19 and 8.22 of this Agreement or in
the Notes or (ii) fails to provide the notice required by Section
8.3(i) of this Agreement, and any such failure shall continue for
a period of fifteen days from the date of which an officer of the
Trustee first acquired knowledge of the event requiring such
notice; or
Other Defaults. The Trust fails to comply with any other
provision of the Notes or of the Agreements, and such failure
shall continue for more than thirty days after written notice
thereof shall have been given to the Trust by any Noteholder; or
Representations or Warranties. Any representation or
warranty made by or on behalf of the Trust or the Lessee
contained in the Agreements or in any instrument furnished in
compliance with or in reference to the Agreements, or in
connection with any amendment thereof, shall prove to have been
false or misleading in any material respect as of the date made;
or
Default on Indebtedness. Any IT Note, or any other
indebtedness for borrowed money of the Trust is declared to be,
or otherwise becomes, due and payable (other than at the option
of the Trust) prior to its stated maturity or regularly scheduled
dates of payment, or any scheduled dates of payment, or any event
shall occur or any condition shall exist in respect of any such
indebtedness or under any agreement securing or relating to such
indebtedness, the effect of which is to require (or permit any
holder of such indebtedness or a trustee to require) such
indebtedness, or any portion thereof, to be paid prior to its
stated maturity or prior to its regularly scheduled dates of
payment; or
Event of Default under Lease Agreement or Credit
Agreement. Any "Event of Default" shall occur under the Lease
Agreement or any "Event of Default" shall occur under the Credit
Agreement or any event of default shall occur with respect to any
other indebtedness incurred in connection with bank credit
facilities permitted under Section 8.10(b) hereof; or
Lessee's Letter Agreement. The Lessee fails to observe
any covenant contained in the Lessee's Letter Agreement.
Bankruptcy; Insolvency. The Trust shall be involved in
financial difficulties as evidenced:
by its commencement of a voluntary case under Title 11
of the United States Code as from time to time in effect, or by
its authorizing the commencement of such a voluntary case;
by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed
against it commencing an involuntary case under said Title 11, or
seeking, consenting to or acquiescing in the relief therein
provided, or by its failing to controvert timely the material
allegations of any such petition;
by the entry of an order for relief in any involuntary
case commenced under said Title 11;
by its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or by its
consenting to or acquiescing in such relief;
by the entry of an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation, reorganization or any
modification or alteration of the rights of its creditors, or
(iii) assuming custody of, or appointing a receiver or other
custodian for all or a substantial part of its property; or
by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian
for all or a substantial part of its property.
Default Remedies.
Acceleration. If an Event of Default described in clause
(a) or (b) of Section 9.1 hereof shall occur and be continuing
with respect to any Note, the holder of such Note, may by notice
in writing to the Trust declare the entire unpaid balance of such
Note and all interest accrued and unpaid thereon to be, and such
amount shall thereupon become, forthwith due and payable, without
any presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived, and, to the extent
permitted by law, such holder may proceed to institute suit for
the enforcement of the payment of principal and interest on such
Note. If an Event of Default, including without limitation, an
Event of Default described in clause (a) or (b) of Section 9.1
hereof, shall occur and be continuing (unless there shall have
occurred an Event of Default under Section 9.1(i) hereof, in
which case the unpaid balance of all Notes shall automatically
become due and payable), the holders of at least 33-1/3% of the
principal amount of the Notes at the time outstanding may, by
notice in writing to the Trust, declare the entire unpaid balance
of the Notes and all interest accrued and unpaid thereon to be,
and such Notes shall thereupon become, forthwith due and payable,
without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived. The Trust will
forthwith pay to the holder or holders of all the Notes at the
time outstanding the entire unpaid principal balance of and
interest accrued on the Notes. In addition, subject to the
provisions of the Security Agreement, following an Event of
Default each Noteholder may proceed to protect and enforce such
holder's rights by suit in equity, action at law and/or other
appropriate proceeding of or for specific performance of, or for
any injunction against violation of, any covenant or provision
contained in the Notes or herein or in aid of the exercise of any
power granted in the Notes. Each of the Noteholders shall,
following an Event of Default, have all of the rights of a
Secured Party; provided, however, that no Noteholder shall have
any right to enforce directly any of the rights or the security
interests granted by the Security Agreement or to require the
Collateral Agent to take or refrain from taking any action under
the Security Agreement.
Nonwaiver and Expenses. No course of dealing between the
Trust or the Lessee and any Noteholder nor any delay or failure
on the part of any Noteholder to exercise any right shall operate
as a waiver of such right. A waiver of the rights of any
Noteholder may be made only in accordance with Section 11.6
hereof. If the Trust fails to pay when due the principal of or
interest on any Note, or fails to comply with any other provision
of the Agreements, the Trust will pay to the holder thereof, to
the extent permitted by law, any applicable late charge, as
provided in the Notes, and such further amounts as shall be
sufficient to cover the cost and expenses, including but not
limited to reasonable attorneys' fees, incurred by such holder in
collecting any sums due on the Note or in otherwise enforcing any
of such holder's rights under this Agreement.
Annulment of Acceleration. If a declaration is made
pursuant to Section 9.2(a) by any holder or holders of the Notes,
then and in every such case, the holders of more than 66-2/3% in
aggregate principal amount of the Notes then outstanding may, by
written instrument filed with the Trust, rescind and annul such
declaration, and the consequences thereof, provided that at the
time such declaration is annulled and rescinded:
no judgment or decree has been entered for the payment of
any monies due pursuant to the Notes or the Agreements;
all arrears of interest upon all the Notes and all other
sums payable under the Notes and under this Agreement (except any
principal or interest on the Notes which has become due and
payable by reason of such declaration under Section 9.2(a)) shall
have been duly paid; and
each and every other Default and Event of Default shall
have been waived pursuant to Section 11.6 hereof or otherwise
made good or cured;
and provided, further that no such rescission and annulment shall
extend to or affect any subsequent Default or Event of Default or
impair any right consequent thereon.
Notice of Default. If any Noteholder shall demand payment
because of, or take any other action of which the Trustee shall
have actual knowledge in respect of, an alleged Default, or if
the Trustee acquires knowledge of any Default, the Trustee shall
forthwith give written notice, specifying the nature of such
Default and any such action, to each holder of the Notes at the
time outstanding, and the Trustee shall also give written notice
to each such holder if any written instrument of rescission or
annulment as aforesaid shall be filed with it under the
provisions of Section 9.3 hereof.
CONCERNING THE TRUSTEE.
Trustee Not Personally Liable. United States Trust Company
of New York is entering into the Agreements and issuing the Notes
solely as trustee under the Trust Agreement and pursuant to
instructions contained in the Trust Agreement and not in its
individual capacity and in no case whatsoever shall an
institution or Person acting as the Trustee (or any entity acting
as successor trustee, co-trustee or separate trustee under the
Trust Agreement) or the Trustor be personally liable on, or for
any loss in respect of, the Notes or any of the statements,
representations, warranties, agreements or obligations of the
Trust or Trustee hereunder, as to all of which you agree to look
solely to the Trust, except for any loss caused by the willful
misconduct or gross negligence of United States Trust Company of
New York (provided that this exception shall not be deemed to
apply to the extent that United States Trust Company of New York
has followed instructions given to it, or which it is authorized
to accept, pursuant to the Trust Agreement and provided that
United States Trust Company of New York shall be entitled to rely
without independent investigation on information and calculations
provided to it by the Lessee). The obligation of the Trustee to
make payments hereunder shall be solely from the Trust Estate,
and nothing contained herein shall be deemed to impose
obligations on the Trustee other than those expressly set forth
in this Agreement, the Notes and the Basic Agreements.
Successor Trustee. You hereby agree that if a successor
trustee is appointed in accordance with the terms of the Trust
Agreement, such successor trustee shall, without further act,
succeed to all the rights, duties, immunities and obligations of
the trustee hereunder and the predecessor trustee shall be
released from all further duties and obligations hereunder, all
without in any way altering the terms of this Agreement. The
Trustee under the Trust Agreement or any successor trustee
thereunder may from time to time appoint one or more co-trustees
or separate trustees pursuant to the terms of the Trust Agreement
to exercise or hold any or all of the rights, powers and title of
the Trustee hereunder, without in any way altering the terms of
this Agreement. One such appointment and designation of a
successor trustee, co-trustee or separate trustee shall not
exhaust the right to appoint further successor trustees, co-
trustees or separate trustees pursuant to the Trust Agreement,
and such right may be exercised repeatedly so long as this
Agreement shall be in effect. At least one trustee shall at all
times be (a) a corporation in good standing and organized and
doing business under the laws of any state of the United States
of America, or (b) a bank or trust company in good standing and
organized and doing business under the laws of the United States
of America or any state thereof, which has its principal office
in the City of Boston or the Borough of Manhattan, and total
assets of at least $500,000,000, if there be such an institution
willing, able and legally qualified to perform the duties of the
Trustee hereunder upon reasonable or customary terms, and which
is a corporation authorized under the laws of its jurisdiction of
incorporation to exercise corporate trust powers and is subject
to supervision or examination by Federal or state authority.
Representations; Covenants. The representations, warranties
and covenants of the Trust contained in Section 3 and 8 hereof
are made solely by the Trust and not by United States Trust
Company of New York in its individual capacity and certain of
said representations and warranties are made solely in reliance
upon the representations of the Lessee contained or to be
contained in the certificate of the Lessee referred to in
Section 4.2(b)(ii) hereof or in other certificates of the Lessee,
copies of which have heretofore been furnished to you.
INTERPRETATION OF THIS AGREEMENT.
Terms Defined. Unless the context otherwise specifies or
requires, each term defined in this Section 11.1 shall, when used
in this Agreement, have the meaning indicated. To the extent
that certain of the terms defined in this Agreement are defined
by cross-reference to documents which may not be in full force
and effect during the entire term of this Agreement, and subject
to the provisions of Section 7.2 hereof, the definitions
contained in such documents shall be and remain effective for
purposes of implementing this Agreement during the term of this
Agreement.
Agreement or Agreements - See Section 2.2 hereof. The term
"Agreements" shall include, in addition to the original
agreements pursuant to which the Notes are issued, every other
instrument which the Trust and the holders of the Notes execute
at any time which shall amend the original agreements, and the
words "hereof", "hereunder", "herein" and other like expressions
refer to the original agreements as so amended as a whole and not
to any particular Section or subsection thereof.
Assignment - shall mean the assignment of a Nuclear Fuel
Contract pursuant to Section 4 of the Lease Agreement.
Bank - shall mean Union Bank of Switzerland, Houston Agency.
Basic Agreements - collectively, the Assignments, the
Lessee's Letter Agreements, the Lessee's Consent, the Lease
Agreement, the Security Agreement, and the Trust Agreement, and
shall include the exhibits, schedules and annexes attached to
each of the foregoing.
Business Day - any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City are required or
authorized to be closed.
Calendar Quarter - a calendar quarter ending on the last day
of any March, June, September or December.
Called Principal - See Section 6.2 hereof.
Closing - See Section 2.3 hereof.
Collateral - all property or rights referred to in Section 2
of the Security Agreement in which a security interest is granted
to the Collateral Agent, as pledgee for the ratable benefit of
the Secured Parties, pursuant to the Security Agreement.
Collateral Agent - shall have the meaning specified in the
Security Agreement.
Collateral Account - shall have the meaning specified in
Section 3.1 of the Security Agreement.
Commercial Paper Account - shall have the meaning specified
in Section 1.01 of the Credit Agreement as in effect on the date
hereof.
CP Notes - Promissory notes of the Trust sold or to be sold
in the commercial paper market and described as "A Notes" in
Section 1.01 of the Credit Agreement as in effect on the date
hereof.
Credit Agreement - the Credit Agreement dated as of December
22, 1988 between the Trust and the Bank, and as modified,
supplemented, amended or extended from time to time.
Daily Lease Charge - shall have the meaning set forth in
Section 1 of the Lease Agreement.
Dealer Agreement - the Dealer or Placement Agency Agreement
dated as of December 22, 1988 between the Trust and Xxxxxxx Xxxxx
Money Markets, Inc., as the same may be modified, supplemented or
amended from time to time.
Default - an event or condition the occurrence of which
would, with the lapse of time or the giving of notice of both,
become an Event of Default.
Depositary Agreement - the Depositary Agreement dated as of
December 22, 1988 between the Trust and Xxxxxx Guaranty Trust
Company of New York, as the same may be modified, supplemented
or amended from time to time.
Discounted Value - shall mean, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called
Principal from their respective due dates to the Redemption Date
with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on
a semiannual basis) equal to the Reinvestment Yield with respect
to such Called Principal.
Event of Default - See Section 9.1 hereof.
IT Notes - all intermediate term secured promissory notes of
the Trust (including the Notes) which comply with the provisions
of Section 8.10 hereof.
IT Note Agreements - collectively, the agreements between
the Trust and one or more lenders pursuant to which such lenders
have purchased or agreed to purchase any of the IT Notes.
Lease Agreement - the Nuclear Fuel Lease Agreement dated as
of December 22, 1988 between the Trust and Arkansas Power & Light
Company, as the same may be modified, supplemented or amended
from time to time in accordance with Section 7.2 hereof.
Lessee - See the introductory paragraph hereof.
Lessee's Consent - shall have the meaning specified in
Section 33 of the Lease Agreement.
Lessee's Letter Agreement - see Section 4.2(e) hereof.
Letter of Credit - any letter of credit issued by the Bank
for the account of the Depositary and described in Section 1.01
of the Credit Agreement as in effect on the date hereof.
Lien - any mortgage, pledge, lien, security interest, title
retention, charge or other encumbrance of any nature whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof and the filing of or
agreement to execute and deliver any financing statement under
the Uniform Commercial Code of any jurisdiction).
Loan - shall have the meaning specified in Section 1.01 of
the Credit Agreement as in effect on the date hereof.
Loan Notes - the promissory notes issued by the Trust to
evidence loans made by the Bank under the Credit Agreement and
described as "B Notes" in Section 1.01 of the Credit Agreement as
in effect on the date hereof.
Noteholder or holder of any Note - the Person in whose name
the Note is registered.
Notes - See Section 2.1 hereof.
Nuclear Fuel - shall have the meaning specified in Section 1
of the Lease Agreement.
Nuclear Fuel Contract - shall have the meaning specified in
Section 1 of the Lease Agreement.
Outstandings - shall have the meaning specified in Section
1.01 of the Credit Agreement as in effect on the date hereof.
Person - An individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or
political subdivision thereof.
Property - Any interest in any kind of property or asset
whether real, personal or mixed, or tangible or intangible.
Purchaser - See Section 2.1 hereof.
Redemption Date - See Section 6.3 hereof.
Registrar - Xxxxxx Guaranty Trust Company of New York or
such other registrar and paying agent (being a commercial bank or
trust company authorized to conduct business in the State of New
York and having combined capital and surplus of not less than
$25,000,000) as the Trust may appoint to act as registrar and
paying agent in respect of the Notes. The Trust shall give
written notice to each Noteholder of the appointment of any
successor Registrar.
Reinvestment Yield - shall mean, with respect to the Called
Principal of any Note, the yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York City time) on the
Business Day next preceding the Redemption Date with respect to
such Called Principal, on the display designated as "Page 678" on
the Telerate Service (or such other display as may replace Page
678 on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Life of such
Called Principal as of such Redemption Date, or (ii) if such
yields shall not be reported as of such time or the yields
reported as of such time shall not be ascertainable, the Treasury
Constant Maturity Series yields reported, for the latest day for
which such yields shall have been so reported as of the Business
Day next preceding the Redemption Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a constant maturity equal
to the Remaining Life of such Called Principal as of such
Redemption Date. Such implied yield shall be determined, if
necessary, by (a) converting U.S. Treasury xxxx quotations to
bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between reported yields.
Remaining Life - shall mean, with respect to the Called
Principal of any Note, the number of years (calculated to the
nearest one-twelfth year) which will elapse between the
Redemption Date with respect to such Called Principal and
December 22, 1998.
Remaining Scheduled Payments - shall mean, with respect to
the Called Principal of any Note, such Called Principal and any
payments of interest thereon that would be due on or after the
Redemption Date with respect to such Called Principal, if no
payment of such Called Principal were made prior to its scheduled
due date.
Secured Parties - shall have the meaning specified in
Recitals to the Security Agreement.
Security - shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
Security Agreement - the Security and Collateral Agency
Agreement dated as of December 22, 1988, executed and delivered
by the Trust in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, as the same may be modified,
supplemented or amended from time to time in accordance with
Section 7.2 hereof.
SLV - shall have the meaning specified in Section 1 of the
Lease Agreement.
Termination Settlement Date - shall have the meaning
specified in Section 20(b) of the Lease Agreement.
Trust - See the introductory paragraph hereof.
Trust Agreement - See the introductory paragraph hereof.
Trust Estate - shall have the meaning specified in Section 1
of the Trust Agreement.
Trustee - See the introductory paragraph hereof.
Trustor - See the introductory paragraph hereof.
Yield-Maintenance Premium - shall mean, with respect to any
Note, a premium equal to the excess, if any, of the Discounted
Value of the Called Principal of such Note over the sum of (i)
such Called Principal plus (ii) interest accrued thereon as of
(including interest due on) the Redemption Date with respect to
such Called Principal. The Yield-Maintenance Premium shall in no
event be less than zero.
Acounting Principles. Where the character or amount of any
asset or liability or item of income or expense is required to be
determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, this
shall be done in accordance with generally accepted accounting
principles at the time in effect on the date that this Agreement
was executed, to the extent applicable, except where such
principles are inconsistent with the requirements of this
Agreement.
Counterparts; Reproduction of Documents. This Agreement may
be executed in any number of counterparts, each of which, when
executed and delivered shall be an original, but such
counterparts shall together constitute one and the same
instrument. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, (b) documents
received by you at the closing of your purchase of the Notes
(except the Notes themselves), and (c) financial statements,
certificates and other information previously or hereafter
furnished to you, may be reproduced by you by any photographic,
photostatic, microfilm, micro-card, miniature photographic or
other similar process and you may destroy any original document
so reproduced. The Trust agrees and stipulates that any such
reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or
not the original is in existence and whether or not such
reproduction was made by you in the regular course of business)
and that any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence.
Survival. All covenants, agreements, representations and
warranties made by the Trust or the Lessee herein or on any
certificate or other instrument delivered by it or them or on its
or their behalf under this Agreement shall survive the delivery
to you of the Notes regardless of any investigation made by you
or on your behalf. All statements in any such certificate or
other instrument executed and delivered by the Trust or the
Lessee shall constitute warranties and representations by the
Trust or the Lessee hereunder.
Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon each of the parties hereto and
their respective successors and assigns. The provisions of this
Agreement are intended to be for the benefit of all holders, from
time to time, of any of the Notes, and shall be enforceable by
any such holder, whether or not an express assignment to such
holder of rights under this Agreement has been made by you or
your successor or assign.
Amendment and Waiver.
Requirements. Any provision in the Agreements or in the
Notes to the contrary notwithstanding, changes in or additions to
the Agreements may be made, and compliance with any covenant or
provision herein set forth may be omitted or waived, if the Trust
shall obtain consent thereto in writing from the holder or
holders of not less than 66 2/3% in principal amount of all Notes
at the time outstanding; provided, however, that no such consent
shall (i) reduce the amount of the principal of any of the Notes
or change the amounts or dates of any payment or redemption of
principal due upon any of the Notes or reduce the rate or extend
the time of payment of interest or premium on any of the Notes,
without the consent of the holder of each Note so affected or
(ii) reduce the percentage of Noteholders required to approve any
such amendment or effectuate any such waiver or amend the
provisions of Sections 9.2(a) or 9.3 or this Section 11.6 hereof,
without the consent of the holders of all of the Notes at the
time outstanding. Any consent may be given subject to
satisfaction of conditions stated therein. The Trust shall
deliver copies of each such consent to any Noteholder who did not
execute the same.
Solicitation of Noteholders. So long as any outstanding
Notes are owned by you, the Trust will not solicit, request or
negotiate for or with respect to any proposed waiver or amendment
of any of the provisions of this Agreement or the Notes unless
each Noteholder (irrespective of the amount of Notes then owned
by it) shall be informed thereof by the Trust and shall be
afforded the opportunity of considering the same and shall be
supplied by the Trust with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true
and correct copies of any waiver or consent effected pursuant to
the provisions of this Section 11.6 shall be delivered by the
Trust to each Noteholder forthwith following the date on which
the same shall have been executed and delivered by the holder or
holders of the requisite percentage of outstanding Notes. The
Trust will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Noteholder as consideration
for or as an inducement to the entering into by any holder of the
Notes of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to the holders of
all of the Notes then outstanding.
Binding Effect. Any such amendment or waiver shall apply
equally to all the holders of the Notes and shall be binding upon
them and upon each future holder of any Note and upon the Trust
whether or not such Note shall have been marked to indicate such
amendment or waiver. No such amendment or waiver shall extend to
or affect any obligation not expressly amended or waived or
impair any right consequent thereon.
No Recourse. The Agreements, the Notes and any other
document executed and delivered by the Trust in connection
therewith are intended to be corporate obligations of the Trust
only, and all of the statements, representations, covenants and
agreements made by the Trust contained therein are made and
intended only for the purpose of binding the Trust and
establishing the existence of rights and remedies provided for
herein or therein which can be exercised and enforced against the
Trust. Therefore, anything contained in the Agreements, the
Notes, or any other document to the contrary notwithstanding, no
recourse may be made by any Noteholder against United States
Trust Company of New York, as trustee or in its individual
capacity, or any incorporator, shareholder (direct or indirect),
affiliate, director, officer, employee or agent of United States
Trust Company of New York with respect to claims against the
Trust arising under or relating to this Agreement. Nothing in
this Section 11.7 shall relieve the Trust from its obligations
under the Agreements nor prevent recourse by any Noteholder
against United States Trust Company of New York, as trustee or in
its individual capacity with respect to claims arising out of its
own willful misconduct or gross negligence as provided in Section
6.1(b) of the Trust Agreement, nor prevent recourse by any
Noteholder against the Lessee in connection with the exercise or
enforcement by any Noteholder of any rights or remedies under any
of the Basic Agreements as provided therein.
Choice of Law; Severability; etc. This Agreement shall be
governed by and construed in accordance with the domestic
substantive laws of the State of New York without giving effect
to any choice or conflict of law provisions or rule that would
cause the application of the domestic substantive laws of any
other jurisdiction. This Agreement sets forth the entire
understanding of the parties hereto with respect to the
transactions contemplated hereby. In the event that any
provision hereof would, under applicable law, be invalid or
unenforceable, such provision shall, to the extent permitted
under applicable law, be construed by modifying or limiting it so
as to be valid and enforceable to the maximum extent possible
under applicable law. The provisions of this Agreement are
severable, and in the event that any provision hereof should be
held invalid or unenforceable in any respect, it shall not
invalidate, render unenforceable or otherwise affect any other
provision hereof. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
Notices. Any notice, demand or other communication in
connection with the Agreements shall be deemed to have been
delivered if in writing (or in the form of telex or telecopy)
addressed as provided below and actually delivered by mail,
courier, telex or facsimile to the following addresses:
if to you, at your notice address shown in Exhibit A to
this Agreement, marked for attention as there indicated, or at
such other address as you may designate by notice in writing
received by the Trustee; or
if to any other Noteholder, to such address as may be set
forth in the register referred to in Section 5.2 hereof, such
holder being empowered to change its address on the register by
notice in writing received by the Registrar; or
if to the Trust, in case of United States Trust Company
of New York, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Department, or at such other
address as it may designate by notice received by you and all
other holders of the Notes at the time outstanding; or
if to the Registrar, at The Chase Manhattan Bank, N.A.,
c/x Xxxxxx Guarantee Trust Company of New York, Commercial Paper
Client Services, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
or at such other address as the Trust or the Registrar may
designate by notice in writing received by you and all other
holders of Notes at the time outstanding; and
with copies in the case of each such notice, demand or
other communication to the Lessee, at TCBY Tower, 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000, or at such other address
as the Lessee may designate by notice in writing received by you
and all other holders of Notes at the time outstanding.
Entire Agreement; No Oral Change. This Agreement, together
with any other writing signed by the parties expressly stated to
be supplementary hereto and together with the instruments and
certificates to be delivered to you pursuant to this Agreement,
constitutes the entire agreement between you and the Company with
respect to the subject matter hereof, superseding all prior
understandings and writings relating thereto, and may not be
changed orally.
Authorization of Collateral Agent. The Purchaser hereby
authorizes the Collateral Agent and its successors to carry out
its duties under and with respect to the Security Agreement and
hereby agrees to accept and be bound by all of the provisions
thereof including without limitation the provisions (a)
prohibiting the enforcement of the Security Agreement without the
direction or consent of the Designated Holders (as that term is
used in the Security Agreement), (b) limiting the duties of the
Collateral Agent thereunder and exonerating it from certain
liabilities, (c) permitting amendments to the Security Agreement
and waivers and releases of Collateral thereunder and (d)
providing that under certain circumstances the Purchaser shall be
responsible for its pro rata share of expenses of the Collateral
Agent as set forth in Section 6.8 of the Security Agreement.
Appointment of Successor Collateral Agent.
The Purchaser acknowledges that it has been notified of
the intention of Xxxxxx Guaranty Trust Company of New York, the
Trustor under the Trust Agreement and the present Collateral
Agent and Depositary, to resign those positions and transfer that
aspect of its business to The Chase Manhattan Bank, N.A., which
would succeed to those positions and accept the duties and
responsibilities thereof, all effective as of the close of
business on January 31, 1996. By its acquisition of the Notes at
the Closing, the Purchaser in its capacity as an IT Noteholder
shall confirm its appointment of The Chase Manhattan Bank, N.A.
as successor Collateral Agent pursuant to Section 6.12.1 of the
Security Agreement and its consent to any modification of the
Basic Documents necessary to implement such succession.
If this Agreement is satisfactory to you, please so indicate
by signing the acceptance at the foot of a counterpart of this
Agreement and return such counterpart to the Trustee whereupon
this Agreement will become binding between us in accordance with
its terms.
Very truly yours,
RIVER FUEL TRUST #1
By: UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:________________________________
Assistant Vice President
Accepted:
[NAME OF PURCHASER]
By:_________________________
Title:
EXHIBIT A
SCHEDULE OF PURCHASERS
Name and Address Registered Principal Amounts and Maturity
of Purchaser Number Dates of Notes to be Purchased
Connecticut General Life BR-001 $10,000,000
Insurance Company Due December 22, 1998
c/o CIGNA Investments, Inc. BR-002 $5,000,000
000 Xxxxxxx Xxxxx Xxxx Due December 22, 1998
Hartford, Connecticut 06152-2307
Attention: Private Securities Division S-307
Registered Name on Notes: CIG & Co.
(1)All payments on account of the Notes in accordance with the
provisions thereof and of this Agreement shall be
transmitted, not later than 12 Noon, New York time, by bank
wire or inter-bank transfer of immediately available funds
for credit to:
Federal Funds Wire Transfer to:
Chase NYC/CTR/
BNF = CIGNA Private Placements/AC = 9009001802
ABA # 000000000
Contemporaneous with the above wire transfer, advice setting
forth:
(1) the full name, interest rate, maturity date and PPN of
the Notes or other obligations;
(2) allocation of payment among principal, Yield Maintenance
Premium and interest and any special payment; and
(3) name and address of Bank (or Trustee) from which wire
transfer was sent, a contact name and telephone number.
(2) Copies of all notices and confirmations of payments
shall be delivered or mailed to:
Connecticut General Life Insurance Company
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Securities Processing
Registered Name on Notes: CIG & Co.
with a copy to:
Chase Manhattan Bank, N.A.
Private Placement Servicing
X.X. Xxx 0000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Attention: CIGNA Private Placements
Fax: (000) 000-0000 or -1005
(3) All other communications shall be delivered or mailed to:
CIG & Co.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Private Securities Division S-307
Fax: (000) 000-0000
EXHIBIT A
SCHEDULE OF PURCHASERS
Name and Address Registered Principal Amounts and Maturity
of Purchase Number Dates of Notes to be Purchased
United of Omaha Life Insurance Company BR-003 $2,500,000
Attention: Investment Division/ Due December 22, 1998
Securities Accounting
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000
(1)All payments on account of the Notes in accordance with the
provisions thereof and of this Agreement shall be
transmitted, not later than 12 Noon, New York time, by bank
wire or inter-bank transfer of immediately available funds
for credit to:
FirsTier Bank - Omaha
00xx & Xxxxxx Xxxxxx
Xxxxx, XX 00000
ABA # 1040-00029
for credit to United of Omaha's account number 000-0-000,
Funds should be fully identified setting forth:
1) name, rate and maturity of issue
2) name of sending bank
3) allocation of payment between principal, interest and
special payments.
(2)Copies of all notices and confirmations of payments shall be
delivered or mailed to:
United of Omaha Life Insurance Company
Attention: Investment Division/Securities Accounting
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000-0000
(3)All other communications shall be delivered or mailed to:
United of Omaha Life Insurance Company
Attention: Investment Division/Securities Accounting
Mutual of Xxxxx Xxxxx
Xxxxx, XX 00000
EXHIBIT A
SCHEDULE OF PURCHASERS
Name and Address Registered Principal Amounts and Maturity
of Purchase Number Dates of Notes to be Purchased
The Prudential Insurance BR-004 $12,500,000
Company of America Due December 22, 1998
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(1) All payments on account of the Notes in accordance with the
provisions thereof and of this Agreement shall be
transmitted, not later than 12 Noon, New York time, by bank
wire or inter-bank transfer of immediately available funds
for credit to:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA No.: 000-000-000
Account No.: 000-00-000
Each such wire transfer shall set forth the name of the
Company, a reference to "6.34% Secured Senior Notes due
12/22/95, PPN No. 76824/A, INV. 5266", and the due date and
application (as among principal, interest and Yield-
Maintenance Amount) of the payment being made.
(2)Copies of all notices and confirmations of payments shall be
delivered or mailed to:
The Prudential Insurance Company of America
c/o Investment Operations Group
Three Gateway Center, 12th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Manager
(3)All other communications shall be delivered or mailed to:
The Prudential Insurance Company of America
c/o Prudential Power Funding Associates
Four Gateway Center, 2nd Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: President
(4)Recepient of telephonic prepayment notices:
Investment Operations Group
[(000) 000-0000 (PruPower/PRICOA)]
EXHIBIT B
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
UNLESS REGISTERED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT.
RIVER FUEL TRUST #1
Intermediate Term Secured Note, 6.34%Series B
Due December 22, 1998
New York N.Y.
R-_____________
$ December __, 1995
RIVER FUEL TRUST #1 (the "Trust"), a trust formed pursuant
to the Trust Agreement dated as of December 20, 1988 among United
States Trust Company of New York, as trustee, the Trustor and the
Beneficiary named therein, FOR VALUE RECEIVED, hereby promises to
pay to _________________ or registered assigns (hereinafter
referred to as the "Payee") on December 22, 1998 the principal
amount of _____________ Dollars ($_______) or such part thereof
as then remains unpaid and to pay interest on the unpaid balance
of such principal amount from the date of this Note at the rate
of 6.34% per annum, payable semiannually in arrears on the 15th
day of June and December in each year, commencing June 15, 1996,
until such principal amount shall be paid, provided that the
final interest payment shall be due upon payment of the principal
hereof rather than December 15, 1998. The Trust further promises
to pay to the Payee on demand a late charge of 1% of any
principal (including any required redemption), Yield Maintenance
Premium, if any, and interest not paid when due, to cover the
administrative costs of the Payee related to collecting and
accounting for late payments, so far as the same may be legally
enforceable. Interest shall be computed on the basis of a 360-
day year and a 30-day month.
Payments of principal and interest shall be made in lawful
money of the Unties States of America by wire transfer or check
mailed, as the Payee may direct the Trust in writing, to the
office of the Payee, or at such other place in the United States
of America as the Payee shall have designated to the Trust in
writing.
This Note is one of an issue of Intermediate Term Secured
Notes, Series B, of the Trust originally issued in the aggregate
principal amount of $30,000,000 pursuant to the provisions of
separate but identical (except for the name of the Purchaser)
Note Agreements dated as of December 14, 1995 between the Trust
and the Purchasers named therein (hereinafter referred to as the
"Agreements"). Each holder is entitled to the benefits of the
Agreements and may enforce each of the agreements of the Trust as
contained therein and may exercise each of the remedies provided
thereby, or otherwise available in respect thereof, against the
Trust, but neither this reference to the Agreements nor any
provision thereof shall affect or impair the absolute and
unconditional obligation of the Trust to pay the principal amount
hereof and interest hereon as herein provided. As provided in
the Agreements (i) this Note is subject to redemption, in whole
in part, and (ii) in case of an Event of Default, as defined in
the Agreements, the principal of this Note may become or may be
declared due and payable in the manner and with the effect
provided in the Agreements. The Trust agrees to make required
redemptions on account of this Note in accordance with the
provisions of the Agreements.
This Note is an IT Note referred to in the Security and
Collateral Agency Agreement dated as of December 22, 1988 between
the Trust and Xxxxxx Guaranty Trust Company of New York, as agent
for the ratable benefit of the holder of this Note and the other
Secured Parties named therein (as the same may be hereafter
modified or amended, the "Security Agreement"). The holder of
this Note is entitled to the benefits of the Collateral (as
defined in the Security Agreement), and the rights of the holder
hereof in the Collateral are subject to and governed by the
provisions of the Security Agreement, and the holder hereof shall
not have any rights with respect to the Collateral except to the
extent and in the manner provided in the Security Agreement.
As further provided in the Agreements, upon surrender of
this Note for transfer or exchange, a new Note or new Notes of
the same tenor (except for the name of the holder) dated the date
to which interest has been paid, or dated the date of this Note
if no interest has theretofore been paid hereon, and in an
aggregate principal amount equal to the unpaid principal amount
of this Note will be issued to, and in the name of, the
transferee or transferees. The Trust or the Registrar may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Trust shall not be affected by any notice to
the contrary.
The Trust and all endorsers and guarantors of this Note
hereby waive presentment, demand, notice of nonpayment, protest
and, except as provided in Section 9 of the Agreements, all other
demands and notices in connection with the delivery, acceptance,
performance or enforcement of this Note.
As more fully provided in the Agreements, the institution or
person acting as trustee shall not be personally liable to the
holder hereof for any amounts payable under this Note and such
holder shall look solely to the Trust Estate created by the Trust
Agreement referred to above to satisfy the obligations created
hereby.
This Note is governed by and shall be construed in
accordance with New York law.
RIVER FUEL TRUST #1
By: UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:______________________________________
Title:
EXHIBIT C
CERTIFICATE
OF
ARKANSAS POWER & LIGHT COMPANY
This Certificate is being delivered to the purchasers named
in Exhibit A to each of the Note Agreements referred to below
(the "Purchasers") by Arkansas Power & Light Company (the
"Lessee"), pursuant to Section 4.2(b)(ii) of the separate Note
Agreements, each dated as of December 14, 1995 (the "Note
Agreements"), between River Fuel Trust #1, a trust formed
pursuant to a Trust Agreement dated as of December 20, 1988 among
United States Trust Company of New York, as trustee (the
"Trustee"), Xxxxxx Guaranty Trust Company of New York, as
trustor, and the Lessee, as beneficiary, and each of the
Purchasers referred to therein, relating to the issue and sale of
$30,000,000 in original aggregate principal amount of the
Intermediate Term Secured Notes, 6.34% Series B due December 22,
1998 ("Series B Notes"). Terms defined in the Note Agreements
are used herein with the same meanings ascribed to them therein,
unless otherwise defined herein.
In connection with the purchase of the Notes pursuant to the
Note Agreements, the Lessee DOES HEREBY REPRESENT AND CERTIFY,
that:
1. The Lessee acknowledges receipt of conformed
counterparts of the Note Agreements and familiarity with the
provisions, terms and conditions thereof.
2. Since September 30, 1995, there has been no material
adverse change in the Lessee's business or financial condition.
3. The execution, delivery and performance, or the
acceptance, as the case may be, by the Lessee of all Basic
Agreements executed by it and of the Nuclear Fuel Contracts did
not and will not violate any provision of any law or regulation
or of any writ or decree of any court or governmental
instrumentality applicable to the Lessee and no consent, license,
approval, order or authorization of, or filing, registration or
declaration with, any governmental authority, bureau or agency or
any court or other Person is required in connection with the
execution, delivery, performance, acceptance, validity or
enforceability of any of the above mentioned documents and
instruments (provided that no representation is given with
respect to the Nuclear Fuel Contracts insofar as the respective
Manufacturers are concerned), except for (i) a general license to
own Nuclear Fuel from the Nuclear Regulatory Commission
(currently granted under 10 C.F.R. Sections 40.21 and 70.20),
(ii) a license to possess and use special nuclear material
granted by the Nuclear Regulatory Commission, and (iii) Orders,
dated December 20, 1988 and July 7, 1989, respectively, of the
Securities and Exchange Commission ("SEC") under the Public
Utility Holding Company Act of 1935 (the "1935 Act") provided
that no representation is given with respect to Federal, New York
or Arkansas banking or trust laws or regulations or the
securities or blue sky laws or regulations of any State.
4. The representations and warranties of the Lessee
contained in Section 2 of the Lease Agreement, and the
information contained in the Private Placement Memorandum of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, dated
November 1995 are true and correct in all material respects on
and as of the date hereof with the same force and effect as
though made on and as of the date hereof, and (x) the amount of
the Lessee's shareholder's equity has not declined below the
amount shown on its balance sheet for the fiscal year ending
December 31, 1994, and (y) the Lessee's income before
extraordinary items, as shown on its income statement as at the
end of the fiscal year immediately preceding the date hereof is a
positive number.
5. Each of the Basic Agreements to which the Lessee is a
party is in full force and effect without amendment or
modification.
6. No Default or Event of Default under the Lease Agreement
or event described in Section 20(a) of the Lease Agreement has
occurred.
7. As of the date hereof and immediately after giving
effect to the sale of Series B Notes to which this Certificate
relates, the aggregate SLV of the existing Nuclear Fuel plus any
accrued Daily Lease Charges equals or exceeds the sum of the
Outstandings under the Credit Agreement plus the aggregate
outstanding principal amount of all IT Notes, as set forth in
Annex A hereto. All of the existing Nuclear Fuel consists
entirely of the fuel assemblies designated by the Lessee as
batches L(12), M(13), N(14), N(15), M(12), N(13) and P(14) and
all such Existing Nuclear Fuel is located at the Generating
Facility. The SLV of the Existing Nuclear Fuel located at the
Generating Facility as of November 30, 1995, was $103,084,000.
8. The Lessee has requested that the funds being made
available to the Trust pursuant to the Note Agreements on the
date hereof be applied first toward the payment of $25,000,000
aggregate principal amount of Series A Notes maturing on December
22, 1995 and the balance to be ultimately applied toward the
purchase price of Nuclear Fuel in accordance with the directions
of the Lessee.
9. The Notes are not secured by any collateral other than
the Collateral described in the Security Agreement, and the Notes
are not guaranteed directly or indirectly by any Person nor are
the Noteholders assured against loss or nonpayment in any manner
other than as contemplated by the Security Agreement and the
other Basic Agreements. The Note Agreements do not contain any
provision, term or condition which is inconsistent with, or
contrary to, the Security Agreement, or which would violate, or
cause the Trust to be in violation of, the Credit Agreement or
any other Basic Agreement and the Notes purchased and sold
pursuant to the Note Agreement will constitute "IT Notes", as
that term is defined in Section 11.1 of the Note Agreements.
In Witness Whereof, the undersigned, a duly authorized
officer, has signed this Certificate on behalf of the Company
this 22nd day of December, 1995.
Arkansas Power & Light Company
By:___________________________
Title:
Annex A to Exhibit C
1. Aggregate SLV of Nuclear Fuel as of 9/30/95 $
2. Estimated SLV of Fuel Purchases from 10/1/95 to 12/22/95 $
3. Estimated Monthly Accrued Daily Lease Charges $
4. Total of (1) through (3) $
5. Outstandings under Credit Agreement at 12/22/95 $
6. Aggregate principal amount of IT Notes
(including the Series B Notes) $
7. Total of (5) plus (6) $
EXHIBIT D
December , 1995
To the Purchasers on Exhibit A
to each of the Agreements
referred to below
Re: River Fuel Trust #1,
Intermediate Term Secured Notes,
Series B, Due December 22, 1998
Gentlemen:
Terms used herein shall have the same meanings ascribed to
them in the Note Agreements dated as of December 14, 1995 between
each of you and River Fuel Trust #1 (the "Agreements").
So long as any of the Notes shall remain outstanding, the
Lessee hereby agrees that:
(A) without your prior written consent,
(1) it shall not obtain the release of Nuclear Fuel
from the Lease Agreement pursuant to Section 10(b) thereof in an
amount which, after giving effect to the use of the proceeds
received by the Trust for the Nuclear Fuel, shall cause the sum
of (i) the aggregate unpaid principal amount of all outstanding
IT Notes, plus (ii) all Outstandings to exceed the aggregate SLV
of the Nuclear Fuel plus accrued Daily Lease Charges plus cash
and investments held by the Trust (such excess amount being
hereinafter referred to as a "Collateral Deficiency"),
(2) within 24 months following the occurrence of an
event set forth in Sections 18 or 19 of the Lease Agreement, it
shall effect the Restoration (as defined in the Lease Agreement)
of the Nuclear Fuel which is subject to such event if the
occurrence of such event would cause a Collateral Deficiency to
exist,
(3) it shall not agree to any affirmative or negative
covenant with respect to the business, operations, properties or
condition, financial or other, of the Lessee with any Person in
order to induce such Person to extend credit to the Trust, unless
(x) such covenant is in existence on the date hereof and a copy
of the document containing such covenant has been provided to you
or (y) such covenant is contained in the Lease Agreement, and
(4) it shall not provide to any Person in order to
induce such Person to extend credit to the Trust, any collateral
other than the Collateral described in the Security Agreement or
any guarantee or other assurance against loss or non-payment, nor
shall either of them cause the Trust to provide such additional
collateral, guarantee or assurance (or consent to the provision
thereof by the Trust) unless, in each case, all IT Notes shall
have equally and ratably the benefit of such additional
collateral, guarantee or assurance; and
(B) it shall transmit to each IT Noteholder copies of
Entergy Corporation's Annual Reports on Form 10-K, its Annual
Reports to shareholders, its Quarterly Reports on Form 10-Q, its
Current Reports on Form 8-K and such other financial information
as may be publicly available and as such IT Noteholder may
reasonably request; and
(C) pursuant to Sections 13(b) and 33 of the Lease
Agreement, it shall give written instructions to the Trust to
file or to cause to be filed all continuation statements required
under the Uniform Commercial Code, as from time to time in effect
in each applicable jurisdiction, with respect to the liens and
security interests granted under the Security Agreement in order
to maintain, protect, preserve and perfect the Collateral Agent's
lien on and security interest in the Collateral as a legal, valid
and enforceable first priority security interest therein, and it
shall cause the Trust to give evidence to each Noteholder of the
due recordation of such continuation statements prior to the date
for the timely recordation of such continuation statements.
Very truly yours,
ARKANSAS POWER & LIGHT COMPANY
By: __________________________________
Title:
