File No. 70-8511
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_________________________________
Amendment No. 5
to the
Form U-1/A
__________________________________
APPLICATION - DECLARATION
Under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
_________________________________
System Energy Resources, Inc. Entergy Corporation
1340 Echelon Parkway P.O. Box 61005
Jackson, Mississippi 39213 New Orleans, Louisiana 70161
Telephone: 601-368-5000 Telephone: 504-529-5262
Arkansas Power & Light Company Louisiana Power & Light Company
P.O. Box 551 639 Loyola Avenue
Little Rock, Arkansas 72203 New Orleans, Louisiana 70113
Telephone: 501-377-4000 Telephone: 504-569-4000
Mississippi Power & Light New Orleans Public Service Inc.
Company 639 Loyola Avenue
P.O. Box 1640 New Orleans, Louisiana 70113
Jackson, Mississippi 39205 Telephone: 504-569-4000
Telephone: 601-969-2311
(Names of companies filing this statement and addresses
of principal executive offices)
__________________________________
ENTERGY CORPORATION
(Name of top registered holding company
parent of each applicant or declarant)
_________________________________
Gerald D. McInvale
Senior Vice President and Chief Financial Officer
System Entergy Resources, Inc.
1340 Echelon Parkway
Jackson, Mississippi 39213
(Name and address of agent for service)
_____________________________________
The Commission is also requested to send copies
of communications in connection with this matter to:
Laurence M. Hamric, Esq. Robert B. McGehee, Esq.
Denise C. Redmann, Esq. Wise Carter Child & Caraway
Entergy Services, Inc. 600 Heritage Building
639 Loyola Avenue P.O. Box 651
New Orleans, Louisiana 70113 Congress at Capitol
(504) 576-2095 Jackson, Mississippi 39205
(601) 968-5500
Thomas J. Igoe, Jr., Esq. David P. Falck, Esq.
Reid & Priest Winthrop, Stimson, Putnam &
40 West 57th Street Roberts
New York, New York 10019 One Battery Park Plaza
(212) 603-2110 New York, New York 10004
(212) 858-1438
Steven C. McNeal
Director - Corporate Finance
and Risk Management
Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
(504) 569-4363
<PAGE>
Item 6. Exhibits
Section A. Exhibits
B-7 Proposed form of Refunding Agreement.
B-8 Proposed form of Provisions relating to
Insurance.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company
Act of 1935, the undersigned companies have duly caused this
amendment to be signed on their behalf by the undersigned thereunto
duly authorized.
SYSTEM ENERGY RESOURCES, INC.
ENTERGY CORPORATION
By: /s/ Lee W. Randall
Lee W. Randall
Vice President and Chief
Accounting Officer
ARKANSAS POWER & LIGHT COMPANY
LOUISIANA POWER & LIGHT COMPANY
MISSISSIPPI POWER & LIGHT COMPANY
NEW ORLEANS PUBLIC SERVICE INC.
By: /s/ Lee W. Randall
Lee W. Randall
Vice President, Chief Accounting Officer
and Assistant Secretary
Dated: April 28, 1995
Exhibit B-7
R e f u n d i n g A g r e e m e n t
between
Claiborne County,
State of Mississippi
and
System Energy Resources, Inc.
Dated as of December 1, 1994
$102,000,000
Claiborne County, State of Mississippi
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project)
Series 1994
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of __________, 199__ by
and between Claiborne County, State of Mississippi, a political
subdivision of the State of Mississippi (the "Issuer"), and
System Energy Resources, Inc., a corporation duly organized and
existing under the laws of the State of Arkansas and qualified to
do business in the State of Mississippi (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is authorized and empowered by the
constitution and laws of the State of Mississippi, especially
Sections 49-17-101 through 49-17-123, Mississippi Code of 1972,
as amended (the "Pollution Control Act"), to acquire, purchase,
construct, enlarge, expand and improve facilities for
eliminating, mitigating, and/or preventing air and water
pollution, including solid waste disposal facilities, to issue
revenue bonds to defray the cost of such facilities, and to
execute an agreement with an industry (as defined in the
Pollution Control Act) for the sale of such facilities to such
industry; and to execute an agreement with an industry (as
defined in the Pollution Control Act) for the sale of such
facilities to such industry; and
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the Issuer has heretofore on
__________, issued $__________ principal amount of Claiborne
County, Mississippi, Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series __ (the "Prior Bonds"),
pursuant to an Indenture of Trust dated as of __________, between
the Issuer and Deposit Guaranty National Bank, as trustee (the
"Prior Indenture"); $__________ principal amount of the Prior
Bonds remain outstanding; and
WHEREAS, the Prior Bonds were issued to defray the cost of
acquiring an undivided 90% interest (the "Project") in certain
solid waste disposal facilities and water pollution control
facilities (the "Facilities") at the Grand Gulf Nuclear Station
(the "Plant"), a nuclear electric generating plant located within
Claiborne County, Mississippi, on Bald Hill Road approximately
six to seven miles northwest of the City of Port Gibson,
Mississippi; the Project was sold by the Issuer to Middle South
Energy, Inc. now known as the Company pursuant to an Installment
Sale Agreement dated as of __________, between the Issuer and the
Company (the "Prior Agreement"); the Company is an "industry" as
defined in the Pollution Control Act and is the owner of the
Project; Entergy Operations, Inc., an affiliate of the Company,
operates and the Plant; and
WHEREAS, the Issuer is authorized by Sections 31-15-21
through 31-15-27, Mississippi Code of 1972, as amended (the "Bond
Refunding Act") to issue revenue refunding bonds, the proceeds of
which may be used, together with other funds to be made available
therefor, to refund the outstanding Prior Bonds; and
WHEREAS, at the request of the Company and pursuant to the
Act, a resolution duly adopted by the Issuer on April 3, 1995
(the "Issuing Resolution") and the Indenture (hereinafter
defined), the Issuer has authorized the issuance of its Pollution
Control Revenue Refunding Bonds (System Energy Resources, Inc.
Project) Series 199__ in the aggregate principal amount of
$__________ (the "Bonds") for the purpose of providing funds
that, together with other funds to be made available therefor by
the Company, will be used to refund all outstanding Prior Bonds,
including the payment of any redemption premium due or to become
due thereon, interest to accrue to the selected redemption date,
and all expenses in connection with such refunding; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to this Agreement,
said refunding bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Agreement and any moneys held under the hereinafter defined
Indenture, and said refunding bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Mississippi, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Agreement under
the Act have been in all respects duly and validly authorized by
a resolution of the County of Claiborne, State of Mississippi,
duly adopted;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
DEFINITIONS
1. Definitions. In addition to the words and terms elsewhere
defined in this Agreement or in the Indenture, the following
words and terms as used in this Agreement shall have the
following meanings unless the context or use indicates another or
different meaning:
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or the Indenture including the compensation and
reimbursement of expenses and advances payable to the Trustee,
any paying agent, any co-paying agent, and the registrar under
the Indenture.
"Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the $__________ aggregate principal amount of
Pollution Control Revenue Refunding Bonds (System Energy
Resources, Inc. Project) Series 199__ authorized to be issued
under the Indenture.
"Bond Refunding Act" means Sections 31-15-21 through 31-15-
27, Mississippi Code of 1972, as amended.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means System Energy Resources, Inc., an Arkansas
corporation, and its permitted successors and assigns.
"Company Mortgage" means the Company's Mortgage and Deed of
Trust dated as of June 15, 1977 made to United States Trust
Company of New York and Malcolm J. Hood, as trustees.
"Company Mortgage Trustee" means United States Trust Company
of New York and Malcolm J. Hood.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means the Company's undivided ninety percent
interest in certain water pollution control and sewage disposal
facilities (financed in part with the proceeds of the Prior
Bonds) at the Grand Gulf Nuclear Station nuclear power plant
located in the geographical limits of the Issuer on Bald Hill
Road approximately six to seven miles Northwest of the City of
Port Gibson, Mississippi in Claiborne County, Mississippi.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of December
1, 1994 between the Issuer and the Trustee securing the Bonds,
and any amendments and supplements thereto.
"Issuer" means Claiborne County, State of Mississippi, a
political subdivision of the State of Mississippi.
"outstanding", when used with reference to the Bonds, shall
mean, as of any particular date, all Bonds authenticated and
delivered under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to the Indenture; and
(d) Bonds registered in the name of the Issuer.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (System Energy Resources, Inc. Project) Series _____ issued
and outstanding in the aggregate principal amount of $_________.
"Refunding Date" means __________, or such later date as may
be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of issuance of the Bonds.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trustee" means __________________________________________.
.2. Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinabove", "hereinafter", and other
equivalent words and phrases refer to this Agreement and not
solely to the particular portion thereof in which any such word
is used. The definitions set forth in Section 1.1 hereof include
both singular and plural. Whenever used herein, any pronoun
shall be deemed to include both singular and plural and to cover
all genders.
.3. Nontaxability. It is intended by the parties hereto
that this Agreement and all action taken hereunder be consistent
with and pursuant to the resolutions of the governing authority
of the Issuer relating to the Bonds, and that the interest on the
Bonds be excluded from the gross income of the recipients thereof
other than a person who is a "substantial user" of the Facilities
or a "related person" of a "substantial user" within the meaning
of the Code for federal income tax purposes by reason of the
provisions of the Code. The Company will not use any of the
funds provided by the Issuer hereunder in such a manner as to
impair the exclusion of interest on any of the Bonds from the
gross income of the recipient thereof for federal income tax
purposes nor will it take any action that would impair such
exclusion or fail to take any action if such failure would impair
such exclusion.
REPRESENTATIONS
.1. Representations and Warranties of the Issuer. The
Issuer makes the following representations and warranties as the
basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the
State of Mississippi, created and existing pursuant to the
constitution and laws of such State and is authorized and
empowered by the provisions of the Act and other
constitutional and statutory authority supplemental
thereto, to issue the Bonds.
(b) The Issuer has full power and authority to
enter into this Agreement and the Indenture and to carry
out its obligations under this Agreement and the Indenture
and the transactions contemplated hereby and thereby.
(c) The Issuer has duly authorized the execution
and delivery of this Agreement and the Indenture and the
issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Agreement and the amounts payable under this
Agreement, (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, and interest on the Bonds.
(e) Neither the execution and delivery of this
Agreement or the Indenture, nor the assignment of this
Agreement to the Trustee, nor the consummation of the
transactions contemplated by this Agreement or the
Indenture, nor the fulfillment of or compliance with the
terms and conditions of this Agreement or the Indenture,
results or will result in the violation of any governmental
order applicable to the Issuer, or conflicts or will
conflict with or results or will result in a breach of any
of the terms, conditions or provisions of any agreement or
instrument to which the Issuer is now a party or by which
it is bound, or constitutes or will constitute a default
under any of the foregoing.
.2. Representations and Warranties of the Company. The
Company hereby makes the following representations and warranties
as the basis for the undertakings on the part of the Issuer
herein undertaken for the benefit and reliance of the Issuer, the
Trustee and the holders of the Bonds:
(a) The Company is a corporation duly
incorporated and in good standing under the laws of the
State of Arkansas and is in good standing under the laws of
the State of Mississippi, is not in violation of any
provision of its Restated Articles of Incorporation or its
Bylaws, has power to enter into this Agreement and to
perform and observe the agreements and covenants on its
part contained herein and has duly authorized the execution
and delivery of this Agreement by proper corporate action.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, conflicts
with or results in a breach of the terms, conditions or
provisions of any restriction or any agreement or
instrument to which the Company is now a party or by which
the Company is bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of
any lien, charge or encumbrance whatsoever upon any of the
property or assets of the Company except any interests
created herein, under the Indenture.
(c) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if
determined adversely to the Company or its interests, (1)
would materially adversely affect the consummation of the
transactions contemplated by this Agreement, (2) would
adversely affect the validity of this Agreement or (3)
could have a material adverse effect upon the financial
condition, assets, properties or operations of the Company.
(e) No event has occurred and no condition exists
with respect to the Company that would constitute an Event
of Default under this Agreement or which, with the lapse of
time or with the giving of notice or both, could reasonably
be expected to become an "Event of Default" hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's
participation in the transactions contemplated by this
Agreement which require said approval, and no other
consent, approval, authorization or other order of any
regulatory body or administrative agency or other
governmental body is legally required for the Company's
participation therein, except such as may have been
obtained or may be required under the securities laws of
any state.
THE BONDS AND THE PROCEEDS THEREOF
.1. Agreement to Issue Bonds. The Issuer has authorized
the issuance and sale of the Bonds in the principal amount of
$__________. Upon issuance and delivery thereof, the proceeds of
the Bonds shall be deposited with the Trustee in the Refunding
Fund (except for proceeds which represent accrued interest, if
any) in accordance with the Indenture. The Issuer does not make
any warranty, either express or implied, that the proceeds of the
Bonds will be sufficient to effectuate the refunding of the
principal of the Prior Bonds.
.2. Bond Redemption. The Issuer shall, at the request of
the Company, take all steps as may be necessary under the
Indenture to effect the redemption, as provided under the
Indenture, of any or all of the Bonds or portions thereof as may
be specified by the Company.
.3. Investment of Funds; Non-Arbitrage Covenant. Any
moneys held as part of the Bond Fund and the Refunding Fund shall
be invested, reinvested or applied by the Trustee in accordance
with and subject to the conditions of Article VII of the
Indenture. The Company and the Issuer shall make no use of the
proceeds of the Bonds, or any funds which may be deemed to be
proceeds of the Bonds pursuant to Section 148 of the Code and the
applicable regulations thereunder, which would cause the Bonds to
be "arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
.4. Agreement to Redeem Bonds. The Company agrees to pay
to the trustee for the Prior Bonds, in funds available to the
Trustee on or prior to the Refunding Date, for deposit into the
bond fund created under the Prior Indenture securing the Prior
Bonds and in accordance with the terms of the Prior Indenture,
any amount necessary to pay the principal of, redemption premium
and accrued interest due on the Prior Bonds, to the extent that
the amount delivered by the Issuer pursuant to Section 3.1 hereof
is insufficient for such purpose.
DEPOSIT OF BOND PROCEEDS; PAYMENTS
1. Deposit of Bond Proceeds. Concurrently with the
delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Agreement, deposit all of the
proceeds thereof with the Trustee for deposit into the Refunding
Fund (except for proceeds which represent accrued interest, if
any) in accordance with the Indenture for application as provided
in Article V hereof and the Indenture to refund on the Refunding
Date the outstanding principal amount of the Prior Bonds. The
Company shall provide such additional moneys as are required to
pay the interest and premium, if any, on the Prior Bonds on the
dates and in the manner as provided in the Prior Indenture in
order to cause the redemption of the Prior Bonds on the Refunding
Date. The Company shall pay out of its own money and not out of
proceeds of the Bonds all reasonable Costs of Issuance with
respect to the Bonds.
2. Payments. (a) The Company shall pay to the Trustee
for the account of the Issuer on each date on which the principal
of, premium, if any, or interest on the Bonds comes due, whether
at the maturity thereof or upon acceleration, redemption or
otherwise in accordance with the provisions of the Indenture, an
amount equal to the sum of (i) all interest due and payable on
the Bonds on such date, (ii) the principal amount of Bonds, if
any, due and payable on such date, (iii) amounts, if any,
required to effect redemption of Bonds upon unconditional call
thereof on such date pursuant to the Indenture, together with
accrued interest and any applicable redemption premium, and (iv)
all amounts due on such date to the Trustee or the Issuer under
this Agreement, the Indenture or any other agreements entered
into in connection with the issuance of the Bonds and any other
Administration Expenses. The Company directs the Trustee to
apply such amounts to the purpose for which they are paid. The
payments required under this Section 4.2(a)(i), (ii) and (iii)
shall be paid by check, draft, wire transfer or other means
acceptable to the Trustee directly to the Trustee in funds
immediately available to the Trustee on the payment date, and
shall be immediately deposited by the Trustee in the Bond Fund.
In any event, the Company agrees to make payments to the Trustee
for deposit in the Bond Fund at such times and in such manner so
as to enable the Trustee to make payment of the principal of,
premium, if any, and accrued interest on the Bonds as the same
shall become due and payable whether by acceleration, redemption
or otherwise in accordance with the terms of the Indenture.
(a) If the Company should fail to make any of the
payments required in subsection (a) above, the item or
installment which the Company has failed to make shall continue
as an obligation of the Company until the same shall have been
fully paid.
(b) Anything herein, in the Indenture or in the Bonds
to the contrary notwithstanding, the obligations of the Issuer
and the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(c) In addition to the options and obligations of the
Company under Article IX hereof to accelerate payment of the
unpaid balance due hereunder, the Company shall have the option
to make from time to time partial prepayments of the amounts due
hereunder. The making of any prepayments by the Company shall
not require the Company to make any further prepayments. The
Issuer shall direct the Trustee to apply such prepayments in such
manner, consistent with the provisions of the Indenture, as may
be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
3. Left Blank Intentionally.
4. Payments Assigned; Obligation Absolute. It is
understood and agreed that all payments under Section 4.2(a)(i),
(ii) and (iii) to be made by the Company are pledged by the
Issuer to the Trustee pursuant to the Indenture, and that all
rights and interest of the Issuer hereunder (except for the
Issuer's rights under Sections 4.5, 4.6, 4.7 and 8.5 hereof and
any rights of the Issuer to receive notices, certificates,
requests, requisitions, directions and other communications
hereunder) are pledged and assigned to the Trustee. The Company
assents to such pledge and assignment and agrees that the
obligation of the Company to make payments under Section
4.2(a)(i), (ii) and (iii) shall be absolute, irrevocable and
unconditional and shall not be subject to cancellation,
termination or abatement, or to any defense other than payment or
to any right of set-off, counterclaim or recoupment arising out
of any breach under this Agreement, the Indenture or otherwise by
the Issuer or the Trustee or any other party, or out of any
obligation or liability at any time owing to the Company by the
Issuer, the Trustee or any other party, and, further, that the
payments under Section 4.2(a)(i), (ii) and (iii) and the other
payments due hereunder shall continue to be payable at the times
and in the amounts specified herein, whether or not the
Facilities, or any portion thereof, shall have been destroyed by
fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain and whether or not any exercise of rights by the Co-Owner
under the Joint Ownership Agreement, prevent or prohibit the use
of the Facilities, and that there shall be no abatement of or
diminution in any such payments by reason thereof, whether or not
the Facilities shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Facilities, or for any other reason.
5. Payment of Expenses. The Company shall pay or cause to
be paid all Administration Expenses, including those of the
Issuer, the Trustee, any paying agent, any co-paying agent, and
the registrar under the Indenture, such payments to be made
directly to such entities.
6. Indemnification. The Company releases the Issuer and
the Trustee from, agrees that the Issuer and the Trustee shall
not be liable for, and agrees to indemnify and hold the Issuer
and the Trustee free and harmless from, any liability for any
loss or damage to property or any injury to or death of any
person that may be occasioned by any cause whatsoever pertaining
to the Facilities, including, without limitation, the financing
or refinancing of the Facilities and the Prior Bonds or Bonds
issued with respect thereto, except in any case as a result of
the negligence, willful misconduct or bad faith of the Issuer or
the Trustee.
The Company will indemnify and hold the Issuer and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Agreement, the issuance or sale of the Prior Bonds or the Bonds,
actions taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence, willful
misconduct or bad faith of the Trustee, or as a result of the
gross negligence, willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
7. Payment of Taxes. The Company agrees that it will pay,
as the same become due, all taxes and governmental charges of any
kind whatsoever that may at any time be lawfully assessed or
levied against the Company or the Issuer with respect to the
Facilities or any portion thereof or with respect to the Prior
Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii) or (iii) hereof prior to or
on a parity with the charge under the Indenture thereon and the
pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii) and (iii) hereof; provided, however,
that nothing herein shall require the payment of any such tax or
charge or make provision for the payment thereof, so long as the
validity thereof shall be contested in good faith by the Company
by appropriate legal proceedings; further provided, that with
respect to special assessments or other governmental charges that
may lawfully be paid in installments over a period of years, the
Company shall be obligated to pay only such installments as are
required to be paid during the term of this Agreement.
REFUNDING OF PRIOR BONDS
1. Refunding Fund - Disbursement of Bond Proceeds. The
Trustee, as authorized by the Issuer in the Indenture, shall
transfer out of the Refunding Fund the proceeds of the Bonds
(exclusive of accrued interest, if any, received with respect to
the Bonds) on the date of issuance thereof to the trustee under
the Prior Indenture for disbursement and investment in accordance
with the Prior Indenture in order to redeem the Prior Bonds on
the Refunding Date.
2. Compliance with Prior Indenture. The Issuer shall take
all steps as may be necessary to effect the redemption of the
Prior Bonds on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
SPECIAL COVENANTS AND AGREEMENTS
1. Maintenance of Corporate Existence. The Company shall
maintain its corporate existence, will not dissolve or otherwise
dispose of all or substantially all its assets and will not
consolidate with or merge with or into another corporation or
permit one or more other corporations to consolidate with or
merge into it; provided, that the Company may, without violating
the agreements contained in this Section consolidate with or
merge into another domestic corporation (i.e., a corporation
incorporated and existing under the laws of one of the states of
the United States of America or the District of Columbia or under
the laws of the United States of America) or permit one or more
such domestic corporations to consolidate with or merge into it,
or sell or otherwise transfer to another domestic corporation all
or substantially all of its assets as an entirety and thereafter
dissolve; provided, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
2. Limited Obligation Bonds. The Bonds shall be limited
obligations of the Issuer and shall be payable solely out of the
revenues of the Issuer from this Agreement as provided in the
Indenture (including all sums deposited in the Bond Fund from
time to time pursuant to this Agreement and the Indenture, and in
certain events, amounts obtained through the exercise of certain
remedies provided in the Indenture). The Bonds shall never be
general obligations of the Issuer nor constitute an indebtedness
or pledge of the general credit of the Issuer within the meaning
of any constitutional or statutory provision or limitation of
indebtedness, and shall never be paid in whole or in part out of
any funds raised or to be raised by taxation of any other funds
of the Issuer.
3. Arbitrage. The Issuer and the Company hereby covenant
with each other, the Trustee and each of the holders of any Bonds
that neither of them will cause or permit the proceeds of the
Bonds to be used in a manner that will cause the interest on the
Bonds to be includable in gross income of the recipients thereof
other than a person who is a "substantial user" of the Facilities
or a "related person" to such "substantial user" within the
meaning of the Code for federal income tax purposes. In
addition, the Company covenants that to the extent permitted by
law, it shall take all actions within its control necessary to
maintain the exclusion of the interest on the Bonds from gross
income for federal income tax purposes under federal tax law
existing on the date of delivery of the Bonds. In furtherance of
the foregoing, the Company also agrees on behalf of the Issuer to
comply with all rebate requirements and procedures as may become
applicable to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the
jurisdiction of the Issuer.
(b) Substantially all of the net proceeds of the
sale of the Prior Bonds have been used to undertake the
acquisition of "air or water pollution control and solid
waste disposal facilities" within the meaning of Section
103(b)(4)(E) and (F) of the Internal Revenue Code of 1954,
as amended. All of the proceeds of the Prior Bonds have
been expended.
(c) The weighted average maturity of the Bonds
does not exceed 120% of the remaining reasonably expected
economic life of the Facilities financed with the proceeds
of the Prior Bonds.
(d) The principal amount of the Bonds shall not
exceed the outstanding principal amount of the Prior Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be
used, and none of the proceeds of the Prior Bonds were
used, to provide any airplane, skybox or other private
luxury box, or health club facility; any facility primarily
used for gambling; or any store the principal business of
which is the sale of alcoholic beverages for consumption
off premises.
(g) The information furnished by the Company and
used by the Issuer in preparing the certification pursuant
to Section 148 of the Code and information statement
pursuant to Section 149(e) of the Code, is accurate and
complete as of the date of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be
used to finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would
cause any funds constituting gross proceeds of the Bonds to
be used in a manner as to constitute a prohibited payment
under the applicable regulations pertaining to, or in any
other fashion as would constitute failure of compliance
with, Section 148 of the Code.
4. Maintenance of Facilities. The Company covenants that
while any of the Bonds are outstanding it will, at its own
expense, maintain the Facilities in good repair and make all
required replacements and renewals thereof. However, the Company
shall have no obligation to replace or renew any portion of the
Facilities, if in the Company's opinion, it is unnecessary or
undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Agreement to the
contrary notwithstanding, the Company shall be entitled to the
proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such shall be paid
directly to the Company.
5. Permits. The Company shall, at its sole cost and
expense, procure or cause to be procured any and all necessary
building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Agreement or the ability of
the Company to discharge such obligations.
6. Compliance with Law. The Company shall, throughout the
term of this Agreement and at no expense to the Issuer, promptly
comply or cause compliance with all laws, ordinances, orders,
rules, regulations and requirements of duly constituted public
authorities that are applicable to the Facilities or to the
repair and alteration thereof, or to the use or manner of use of
the Facilities and which, if there is non-compliance, would
materially adversely affect or impair the obligations of the
Company under this Agreement or the ability of the Company to
discharge such obligations. Notwithstanding the foregoing, the
Company shall have the right to contest the legality of any such
law, ordinance, order, rule, regulation or requirement as applied
to the Facilities provided that in the opinion of counsel to the
Company such contest shall not in any way materially adversely
affect or impair the obligations of the Company under this
Agreement or the ability of the Company to discharge such
obligations.
.7. No Warranty. The Issuer makes no warranty, either
express or implied, as to the Facilities, including, without
limitation, title to the Facilities or the actual or designed
capacity of the Facilities, as to the suitability or operation of
the Facilities for the purposes specified in this Agreement, as
to the condition of the Facilities or as to the suitability
thereof for the Company's purposes or needs or as to compliance
of the Facilities with applicable laws and regulations or the
ability of the Company to discharge the Bonds. The Company
covenants with the Issuer that it will make no claim against the
Issuer for any deficiency which may at any time exist in the
Facilities, nor will it assert against the Issuer any other claim
for breach of warranty with respect to the Facilities. The
obligations of the Company under this Section shall survive any
assignment or termination of this Agreement.
ASSIGNMENT, LEASING AND SELLING
1. By the Company. The Company's interest in this
Agreement may be assigned in whole or in part, and the Facilities
may be leased or sold as a whole or in part (whether a specific
element or unit or an undivided interest), by the Company,
subject, however, to the condition that no assignment, lease or
sale (other than as described in Section 6.1 hereof) shall
relieve the Company from primary liability for its obligations
under Section 4.2 hereof to pay the payments required thereunder,
or for any other of its obligations hereunder, other than those
obligations relating to the operation, maintenance and insurance
of the Facilities, which obligations (to the extent of the
interest assigned, leased or sold and to the extent assumed by
the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
2. Limitation. This Agreement shall not be assigned nor
shall the Facilities be leased or sold, in whole or in part,
except as provided in this Article VII, Sections 4.4 or 6.1
hereof.
EVENTS OF DEFAULT AND REMEDIES
1. Events of Default. Each of the following events shall
constitute and is referred to in this Agreement as an "Event of
Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 9.1 of the Indenture; or
(b) a failure by the Company to pay when due any
other amount required to be paid under this Agreement or to
observe and perform any covenant, condition or agreement on
its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the
Issuer or the Trustee, unless the Issuer and the Trustee
shall agree in writing to an extension of such period prior
to its expiration; provided, however, that the Issuer and
the Trustee shall be deemed to have agreed to an extension
of such period if corrective action is initiated by the
Company within such period and is being diligently pursued.
2. Force Majeure. The provisions of Section 8.1 hereof
are subject to the following limitations: If by reason of acts
of God; strikes, lockouts or other industrial disturbances; acts
of public enemies; orders or other acts of any kind of the
government of the United States or of the States of Mississippi
or Texas, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(i), (ii) and (iii) hereof and its obligations
under Sections 4.7, 6.1 and 9.1 hereof, the Company shall not be
deemed in default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during
the continuance of such inability. The Company agrees, however,
to use its best efforts to remedy with all reasonable dispatch
the cause or causes preventing it from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required
to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or
parties when such course is, in the judgment of the Company,
unfavorable to the Company.
3. Remedies on Default. (a) Upon the occurrence and
continuance of any Event of Default described in clause (b) of
Section 8.1 hereof, and further upon the condition that, in
accordance with the terms of the Indenture, the Bonds shall have
become immediately due and payable pursuant to any provision of
the Indenture, the payments required to be paid pursuant to
Section 4.2 hereof shall, without further action, become and be
immediately due and payable.
(a) Upon the occurrence and continuance of any Event
of Default, the Issuer with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Agreement.
(b) Any amounts collected pursuant to action taken
under this Section shall be applied in accordance with the
Indenture.
(c) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
4. No Remedy Exclusive. No remedy conferred upon or
reserved to the Issuer by this Agreement is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any event of default
shall impair any such right or power or shall be construed to be
a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required, or as may be required by applicable law.
5. Payment of Attorneys' Fees and Other Expenses. If the
Company shall be in default under any of the provisions of this
Agreement, and the Issuer shall employ attorneys or incur other
expenses for the collection of sums due and payable under this
Agreement, or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company contained
in this Agreement, the Company agrees that it will on demand
therefor reimburse the reasonable fees of such attorneys and such
other reasonable expenses so incurred.
6. Waiver of Breach. In the event that any agreement
contained herein shall be breached by either the Company or the
Issuer and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights in
and under this Agreement to the Trustee under the Indenture, the
Issuer shall have no power to waive any default hereunder by the
Company without the consent of the Trustee. Any waiver of any
"Event of Default" under the Indenture and a rescission and
annulment of its consequences shall constitute a waiver of the
corresponding Event of Default hereunder and a rescission and
annulment of the consequences thereof.
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
1. Redemption of Bonds. The Issuer shall take the actions
required by the Indenture to discharge the lien thereof through
the redemption, or provision for payment or redemption, of all
Bonds then outstanding, or to effect the redemption, or provision
for payment or redemption, of less than all the Bonds then
outstanding, upon receipt by the Issuer and the Trustee from the
Company of a notice designating the principal amounts, series and
maturities of the Bonds to be redeemed, or for the payment or
redemption of which provision is to be made, and, in the case of
redemption of Bonds, or provision therefor, specifying the date
of redemption, which shall not be less than forty-five (45) days
(or such other period as may reasonably be agreed upon by the
Trustee and the Issuer with the consent of the Company) from the
date such notice is given, whether such notice shall be
unconditional, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time at which the Trustee shall have
given notice to the holders of the Bonds to be redeemed.. The
Company shall furnish, as a prepayment of the sums due hereunder,
any moneys or Government Securities required by the Indenture to
be deposited with the Trustee or otherwise paid by the Issuer in
connection with a defeasance of Bonds pursuant to Article IX of
the Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at
any time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
MISCELLANEOUS
1. Term of the Agreement. This Agreement shall be in full
force and effect from the date hereof until the right, title and
interest of the Trustee in and to the Trust Estate (as defined in
the Indenture) shall have ceased, terminated and become void in
accordance with Article IX of the Indenture and until all
payments required under this Agreement shall have been made.
2. Notices. Except as otherwise provided in this
Agreement, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company or the Trustee. Copies of each notice, certificate
or other communication given hereunder by or to the Company shall
be mailed by registered or certified mail, postage prepaid, to
the Trustee; provided, however, that the effectiveness of any
such notice shall not be affected by the failure to send any such
copies. Notices, certificates or other communications shall be
sent to the following addresses:
Company: System Energy Resources, Inc.
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Claiborne County
Post Office Box 449
Port Gibson, Mississippi 39150
Attention: Chancery Clerk
Trustee:
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
3. Successors. This Agreement shall inure to the benefit
of the Issuer, the governing authority of the Issuer, its
members, officers or employees, the Company, the Trustee and the
holders from time to time of the Bonds, and shall be binding upon
the Issuer, the Company and their respective successors and
assigns.
4. Amendments to Refunding Agreement. This Agreement may
not be effectively amended, changed, modified, altered or
terminated except in accordance with the provisions of the
Indenture, and no amendment to this Agreement shall be binding
upon either party hereto until such amendment is reduced to
writing and executed by both parties hereto.
5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which, when so executed and
delivered, shall be an original; but such counterparts shall
together constitute but one and the same Agreement.
6. Recording and Filing. The Company shall record and
file, or cause to be recorded and filed, all documents and
statements referred to in Section 5.4 of the Indenture.
7. Photocopies and Reproductions. A photocopy or other
reproduction of this Agreement may be filed as a financing
statement pursuant to the Mississippi Commercial Laws - Secured
Transactions, although the signatures of the Company and the
Issuer on such reproduction are not original manual signatures.
8. Severability. If any clause, provision or section of
this Agreement shall be held illegal or invalid by any court, the
invalidity of such clause, provision or section shall not affect
any of the remaining clauses, provisions or sections hereof and
this Agreement shall be construed and enforced as if such illegal
or invalid clause, provision or section had not been contained
herein. In case any agreement or obligation contained in this
Agreement shall be held to be in violation of law, then such
agreement or obligation shall be deemed to be the agreement or
obligation of the Issuer or the Company, as the case may be, to
the full extent permitted by law.
9. Applicable Law. The laws of the State of Mississippi
shall govern the construction of this Agreement.
10. Holidays. If the date for making any payment or the
last date for performance of any act or the exercising of any
right, as provided in this Indenture, shall be a legal holiday or
a day on which banking institutions in the city in which is
located the principal corporate trust office of the Trustee are
authorized by law to remain closed, such payment may be made or
act performed or right exercised on the next succeeding day not a
legal holiday or a day on which such banking institutions are
authorized by law to remain closed, with the same force and
effect as if done on the nominal date provided in this Agreement,
and no interest on the amount so payable shall accrue for the
period after such nominal date.
11. Amounts Remaining in Bond Fund. Any amounts remaining
in the Bond Fund upon expiration or earlier termination of this
Agreement as herein provided, after payment in full of the Bonds
(or provision therefor) in accordance with the Indenture, and all
other costs and expenses to be paid by the Company hereunder, all
Administration Expenses and all amounts owing the Issuer and the
Trustee under this Agreement and the Indenture, shall belong to
and be paid to the Company, as an overpayment of the payments.
12. Company Approval of Indenture. The Indenture has been
submitted to the Company for examination, and the Company, by
execution of this Agreement, acknowledges and agrees that it has
participated in the drafting of the Indenture and agrees that it
has approved the Indenture and agrees that it is bound by and
shall have the rights set forth by the terms and conditions
thereof and covenants and agrees to perform all obligations
required of the Company pursuant to the terms of the Indenture.
13. Binding Effect. This Agreement shall be binding upon
the parties hereto and upon their respective successors and
assigns, and the words "Issuer" and "Company" shall include the
parties hereto and their respective successors and assigns and
include any gender, singular and plural, and individuals,
partnerships or corporations.
14. Captions and Headings. The captions or headings in
this Agreement are for convenience only and in no way define,
limit or describe the scope or intent of any provisions of this
Agreement.
15. No Personal Liability. No covenant or agreement
contained in this Agreement shall be deemed to be the covenant or
agreement of any official, officer, agent, or employee of the
Issuer in his individual capacity, and no such person shall be
subject to any personal liability or accountability by reason of
the issuance thereof.
16. Parties in Interest. This Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Agreement; provided, however, that any
monetary obligation of the Issuer created by or arising out of
this Agreement shall be payable solely out of the revenues
derived from this Agreement or the sale of the Bonds or income
earned on invested funds as provided in the Indenture and shall
not constitute, and no breach of this Agreement by the Issuer
shall impose, a pecuniary liability upon the Issuer or a charge
upon the Issuer's general credit or against its taxing powers.
17. Subordination to Company Mortgage; Joint Ownership
Agreement; Waiver of Lien. Nothing in this Agreement or the
Indenture shall in any way prejudice (i) the Company Mortgage,
the lien thereof, the Joint Ownership Agreement or any of the
rights of the Company Mortgage Trustee, of any holder of First
Mortgage Bonds heretofore or hereafter issued thereunder, or any
takers or purchasers upon default thereunder or (ii) the Joint
Ownership Agreement or any of the rights of the parties
thereunder, or constitute or create a direct lien or encumbrance
on or other rights in or to the Plant or Facilities or any
leasehold or other estate therein.
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
CLAIBORNE COUNTY,
STATE OF MISSISSIPPI
By:_____________________________________
West Feliciana Parish Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary
SYSTEM ENERGY RESOURCES, INC.
By: _____________________________________
Vice President-Chief Account
ing Officer
ATTEST:
By: _______________________________ [SEAL]
Assistant Secretary
EXHIBIT B-8
SUPPLEMENT TO
BOND DOCUMENTS RELATING TO BOND INSURANCE
This Supplement to Bond Documents relating to Bond Insurance
dated as of , 199__ (the "Supplement"), by and among
Claiborne County, State of Mississippi, (the "County"), System
Energy Resources, Inc. (the "Company") and
(the "Trustee"):
W I T N E S S E T H:
GENERAL RECITALS AND FINDINGS
(a) The County and the Company have entered into a
Refunding Agreement dated as of , 199__ (the
"Agreement") providing, among other things, for the obligation of
the Company to make certain "Repayments" with respect to the
County's Pollution Control Revenue Refunding Bonds (System Energy
Resources, Inc.) Series 199__ (the "Series 199__ Bonds").
(b) The County on , 199__ adopted a resolution
which, among other things, authorized the issuance of the Series
199__ Bonds, and further specifically authorized the President of
the Board of Supervisors of the County (the "President") to
approve such modifications or amendments as may be required to be
made to the Trust Indenture, dated as of , 199__ (the
"Indenture") between the County and the Trustee, pursuant to
which the interests of the registered owners of the Series 199__
Bonds (the "199__ Bondholders") are secured, the Agreement or any
other document required with respect thereto, in each case in the
event that a policy of municipal bond insurance shall have been
obtained with respect to the Series 199__ Bonds.
(c) By commitment dated , 199__ (the
"Commitment"), AMBAC Indemnity Corporation ("AMBAC Indemnity")
has committed to issue a Municipal Bond Guaranty Insurance Policy
(the "Policy") insuring the timely payment of the principal of
and interest on the Series 199__ Bonds. AMBAC Indemnity has
required, as conditions to the issuance of the Policy pursuant to
the Commitment, certain modifications to be made to the Agreement
and the Indenture (collectively, the Agreement and the Indenture
are hereinafter referred to as the "Bond Documents").
(d) The President, on behalf of the County, the Company and
the Trustee, by the execution of this Supplement, each finds and
determines that the modifications of the Bond Documents as set
forth in this Supplement, to the extent applicable to a Bond
Document to which it is a party or is otherwise bound, are
approved by such party, shall be binding thereon and are
incorporated in such Bond Documents.
NOW, THEREFORE, in consideration of the modifications herein
made, and subject to the conditions herein set forth, the
President, on behalf of the County, the Company and the Trustee,
agree, to the extent applicable with respect to the Series 199__
Bonds, as follows:
AGREEMENT
The Agreement, as it relates to the Series 199__ Bonds, is
hereby amended and supplemented as follows:
1. , Section , of the Agreement is hereby
amended and supplemented by adding thereto the following defined
terms:
"AMBAC Indemnity" shall mean AMBAC Indemnity Corporation, a
Wisconsin-domiciled stock insurance company.
"Municipal Bond Guaranty Insurance Policy" shall mean the
municipal bond insurance policy issued by AMBAC Indemnity
insuring the payment when due of the principal of and interest on
the Series 199__ Bonds as provided therein.
2. The Agreement is hereby amended and supplemented by
adding thereto a new Article captioned "ADDITIONAL PROVISIONS
WITH RESPECT TO Series 199__ Bonds RELATING TO BOND INSURANCE",
which section shall read in its entirety as follows:
"(a) Any provision of this Agreement expressly recognizing
or granting rights in or to AMBAC Indemnity may not be amended in
any manner which affects the rights of AMBAC Indemnity hereunder
without the prior written consent of AMBAC Indemnity.
(b) AMBAC Indemnity's consent shall be required in addition
to 199__ Bondholder consent, when required, for the following
purposes: (i) execution and delivery of any supplemental
Indenture or any amendment, supplement or change to or
modification of the Agreement; (ii) removal of the Trustee and
selection and appointment of any successor trustee; and (iii)
initiation or approval of any action not described in (i) or (ii)
above which requires 199__ Bondholder consent.
(c) To the extent that this Agreement confers upon or gives
or grants to AMBAC Indemnity any right, remedy or claim under or
by reason of this Agreement, AMBAC Indemnity is hereby explicitly
recognized as being a third-party beneficiary hereunder and may
enforce any such right, remedy or claim conferred, given or
granted hereunder.
(d) Nothing in this Agreement expressed or implied is
intended or shall be construed to confer upon, or to give or
grant to, any person or entity, other than the County, the
Trustee, AMBAC Indemnity and the 199__ Bondholders, any right,
remedy or claim under or by reason of this Agreement or any
covenant, condition or stipulation hereof, and all covenants,
stipulations, promises and agreements in this Agreement contained
by and on behalf of the Company shall be for the sole and
exclusive benefit of the County, the Trustee, AMBAC Indemnity and
the 199__ Bondholders.
(e) While the Municipal Bond Guaranty Insurance Policy is
in effect, the Company shall furnish to AMBAC Indemnity, as soon
as practicable after the filing thereof, a copy of any Annual
Report on Form 10-K and Quarterly Report on Form 10-Q of the
Company filed by the Company with the Securities and Exchange
Commission.
(f) The Trustee will permit AMBAC Indemnity to have access
to and to make copies of all books and records relating to the
Series 199__ Bonds at any reasonable time.
INDENTURE
The Indenture, as it relates to the Series 199__ Bonds, is
hereby amended and supplemented by adding a new paragraph ____ to
Article ___ thereof, which paragraph __ shall read in its
entirety as follows:
"(___) Additional Provisions with respect to Series 199__
Bonds Relating to Bond Insurance. As long as the Municipal
Guaranty Insurance Policy is in full force and effect with
respect to the Series 199__ Bonds and AMBAC Indemnity is not in
default thereunder -
(i) Any provision of this Indenture expressly
recognizing or granting rights in or to AMBAC Indemnity may not
be amended in any manner which affects the rights of AMBAC
Indemnity hereunder without the prior written consent of AMBAC
Indemnity.
(ii) Anything in this Indenture to the contrary notwith
standing, upon the occurrence and continuance of an Event of
Default, and subject to the indemnification provisions contained
in paragraphs (__) and (__) of Article __, AMBAC Indemnity shall
be entitled to control and direct the enforcement of all rights
and remedies granted to the 199__ Bondholders or the Trustee for
the benefit of the 199__ Bondholders under this Indenture, and
AMBAC Indemnity shall also be entitled to approve, to the extent
granted to the 199__ Bondholders, all waivers of Events of
Default.
(iii) (a) The Company or the Trustee (as appropriate)
shall furnish to AMBAC Indemnity a copy of any notice to be given
to the 199__ Bondholders, including, without limitation, notice
of any redemption of or defeasance of Series 199__ Bonds, and any
certificate rendered pursuant to this Indenture relating to the
security for the Series 199__ Bonds.
(b) The Trustee shall notify AMBAC Indemnity of any failure
of the Company to provide the Trustee notices, certificates, and
other documents required to be furnished to the Trustee by the
Indenture.
(c) Notwithstanding any other provision of this Indenture,
the Trustee shall promptly (but no later than 5 calendar days)
notify AMBAC Indemnity if at any time there are insufficient
moneys to make any payments of principal and/or interest on
Series 199__ Bonds as required and promptly (but no later than 5
calendar days) upon the occurrence of any Event of Default
hereunder known to the Trustee.
(iv) Notwithstanding anything herein to the contrary, in
the event that the principal and/or interest due on the Series
199__ Bonds shall be paid by AMBAC Indemnity pursuant to the
Municipal Bond Guaranty Insurance Policy, the Series 199__ Bonds
shall remain outstanding for all purposes, not be defeased or
otherwise satisfied and not be considered paid by the County, and
the assignment and pledge of the Trust Estate and all covenants,
agreements and other obligations of the County to the 199__
Bondholders shall continue to exist and shall run to the benefit
of AMBAC Indemnity, and AMBAC Indemnity shall be subrogated to
the rights of such registered owners.
(v) The County and the Trustee agree to comply with the
following provisions:
(a) If payment of principal or interest due on the Series
199__ Bonds has not been made to the Trustee, the Trustee,
or any 199__ Bondholder to whom such payment is due, shall
so notify AMBAC Indemnity by telephonic or telegraphic
notice, subsequently confirmed in writing, or written notice
by registered or certified mail. Such notice shall specify
the amount of the anticipated deficiency, the Series 199__
Bonds to which such deficiency is applicable and whether
such Series 199__ Bonds will be deficient as to principal or
interest, or both. AMBAC Indemnity, on the later of the
date due for payment or within one business day after
receipt of notice of nonpayment, will deposit sufficient
moneys with United States Trust Company of New York, as
insurance trustee for AMBAC Indemnity or any successor
insurance trustee (the "Insurance Trustee").
(b) The Trustee shall, after giving notice to AMBAC
Indemnity as provided in (a) above, make available to AMBAC
Indemnity and, at AMBAC Indemnity's direction, to the
Insurance Trustee, the registration books of the County
maintained by the Trustee relating to the Series 199__ Bonds
and all records relating to the respective account of the
Debt Service Fund maintained under this Indenture.
(c) The Trustee shall provide AMBAC Indemnity and the
Insurance Trustee with a list of 199__ Bondholders entitled
to receive principal or interest payments from AMBAC
Indemnity under the terms of the Municipal Bond Guaranty
Insurance Policy, and shall make arrangements with the
Insurance Trustee (i) to mail checks or drafts to the 199__
Bondholders entitled to receive full or partial interest
payments from AMBAC Indemnity and (ii) to pay principal upon
Series 199__ Bonds surrendered to the Insurance Trustee by
the 199__ Bondholders entitled to receive full or partial
principal payments from AMBAC Indemnity.
(d) The Trustee shall, at the time it provides notice to
AMBAC Indemnity pursuant to (a) above, notify 199__
Bondholders entitled to receive the payment of principal or
interest thereon from AMBAC Indemnity (i) as to the fact of
such entitlement, (ii) that AMBAC Indemnity will remit to
them all or a part of the interest payments next coming due,
(iii) that should they be entitled to receive full payment
of principal from AMBAC Indemnity, they must present and
surrender their Series 199__ Bonds (together with any
appropriate instrument of assignment) for payment to the
Insurance Trustee, and not the Trustee, and (iv) that should
they be entitled to receive partial payment of principal
from AMBAC Indemnity, they must present and surrender their
Series 199__ Bonds for payment thereon first to the Trustee,
who shall note on such Series 199__ Bonds the portion of the
principal paid by the Trustee, and then, along with an
appropriate instrument of assignment, to the Insurance
Trustee, which will then pay the unpaid portion of
principal. The Insurance Trustee shall disburse to 199__
Bondholders or the Trustee the payment due less any amount
held by the Trustee for payment of principal of or interest
on Series 199__ Bonds and legally available therefor.
(e) In the event that the Trustee has notice that any
payment of principal of or interest on a Series 199__ Bond
which has become due for payment and which is made to a
199__ Bondholder by or on behalf of the County has been
deemed a preferential transfer and theretofore recovered
from its 199__ Bondholder pursuant to the United States
Bankruptcy Code by a trustee in bankruptcy in accordance
with the final, nonappealable order of a court having
competent jurisdiction, the Trustee shall, at the time AMBAC
Indemnity is notified pursuant to (a) above, notify all
199__ Bondholders that in the event that any 199__
Bondholder's payment is so recovered, such 199__ Bondholder
will be entitled to payment from AMBAC Indemnity to the
extent of such recovery if sufficient funds are not
otherwise available, and the Trustee shall furnish to AMBAC
Indemnity its records evidencing the payments of principal
of and interest on the Series 199__ Bonds which have been
made by the Trustee and subsequently recovered from 199__
Bondholders and the dates on which such payments were made.
(f) In addition to those rights granted AMBAC Indemnity
under this Indenture, AMBAC Indemnity shall, upon remittance
and transfer of Series 199__ Bonds or appropriate
instruments of assignment, become the owner thereof, and to
evidence such ownership (i) in the case of claims for past
due interest, the Trustee shall note AMBAC Indemnity's
rights as owner on the registration books of the County
maintained by the Trustee upon receipt from AMBAC Indemnity
of proof of the payment of interest thereon to the 199__
Bondholders, and (ii) in the case of claims for past due
principal, the Trustee shall note AMBAC Indemnity's rights
as owner on the registration books of the County maintained
by the Trustee upon surrender of the Series 199__ Bonds by
the 199__ Bondholders thereof together with proof of the
payment of principal thereof.
(vi) (a) AMBAC Indemnity shall receive five days' prior
written notice of any Trustee resignation.
(b) Notwithstanding any other provision of this Indenture,
in determining whether the rights of the 199__ Bondholders
will be adversely affected by any action taken pursuant to
the terms and provisions of this Indenture, the Trustee
shall consider the effect on the 199__ Bondholders as if
there were no Municipal Bond Guaranty Insurance Policy.
(vii) To the extent that this Indenture confers upon or
gives or grants to AMBAC Indemnity any right, remedy or claim
under or by reason of this Indenture, AMBAC Indemnity is hereby
explicitly recognized as being a third-party beneficiary
hereunder and may enforce any such right, remedy or claim
conferred, given or granted hereunder.
(viii) Nothing in this Indenture expressed or implied is
intended or shall be construed to confer upon, or to give or
grant to, any person or entity, other than the County, the
Trustee, AMBAC Indemnity and the 199__ Bondholders of the Series
199__ Bonds, any right, remedy or claim under or by reason of
this Indenture or any covenant, condition or stipulation hereof,
and all covenants, stipulations, promises and agreements in this
Indenture contained by and on behalf of the County shall be for
the sole and exclusive benefit of the County, the Trustee, AMBAC
Indemnity and the 199__ Bondholders."
This Supplement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may
execute this Supplement by signing any such counterpart.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their duly authorized officers and
agents as of the date first above written.
[County]
By
[Company]
By
[Trustee]
By
Title
<PAGE>
AMBAC
INDEMNITY CORPORATION
MUNICIPAL BOND GUARANTY INSURANCE POLICY
Effective Date: Policy No.
AMBAC Indemnity Corporation (AMBAC), in consideration of the
payment of the premium and subject to the terms of this policy,
hereby unconditionally and irrevocably guarantees to any owner or
holder, as hereinafter defined, of the following described
obligations, the full and complete payment required to be made by
or on behalf of the Issuer to:
or its successor (the "Paying Agent") of an amount equal to (i)
the principal of (either at the stated maturity or by any
advancement of maturity pursuant to a mandatory sinking fund
payment) and interest on the Obligations (as that term is defined
below) as such payments shall become due but shall not be so paid
(except that in the event of any acceleration of the due date of
such principal by reason of mandatory or optional redemption or
acceleration resulting from default or otherwise, other than any
advancement of maturity pursuant to a mandatory sinking fund
payment, the payments guaranteed hereby shall be made in such
amounts and at such times as such payments of principal would
have been due had there not been any such acceleration; and (ii)
the reimbursement of any such payment which is subsequently
recovered from any owner or holder pursuant to a final judgment
by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such owner or holder
within the meaning of any applicable bankruptcy law. The amounts
referred to in clauses (i) and (ii) of the preceding sentence
shall be referred to herein collectively as the "Insured
Amounts." "Obligations" shall mean:
Upon receipt of telephonic or telegraphic notice, such notice
subsequently confirmed in writing by registered or certified
mail, or upon receipt of written notice by registered or
certified mail by AMBAC or its designee from the Paying Agent or
any owner or holder of an Obligation or coupon thereof the
payment of an Insured Amount for which is then due, that such
required payment has not been made, AMBAC, on the due date of
such payment or within one business day after receipt of notice
of such nonpayment, whichever is later, will make a deposit of
funds in an account with United States Trust Company of New York,
in New York, New York, or its successor, sufficient for the
payment of any such Insured Amounts which are then due. Upon
presentment and surrender of such Obligations or coupons or
presentment of such other proof of ownership of the Obligations,
together with any appropriate instruments of assignment to
evidence the assignment of the Insured Amounts due on the
Obligations as are paid by AMBAC, and appropriate instruments to
effect the appointment of AMBAC as agent for such owners or
holders of the Obligations or coupons in any legal proceeding
related to payment of Insured Amounts on the Obligations or
coupons, such instruments being in form satisfactory to United
States Trust Company of New York, United States Trust Company of
New York shall disburse to such owners, holders or the Paying
Agent payment of the Insured Amounts due on such Obligations and
coupons, less any amount held by the Paying Agent for the payment
of such Insured Amounts and legally available therefor. This
policy does not insure against loss of any prepayment premium
which may at any time be payable with respect to any Obligation
or coupon.
As used herein, the term "owner" shall mean the registered owner
of any Obligation as indicated in the books maintained by the
Paying Agent, the Issuer or any designee of the Issuer for such
purpose and the term "holder" shall mean the bearer of any
Obligation not registered as to principal or as to principal and
interest for such purpose and, when used with reference to a
coupon, shall mean the bearer of the coupon. The terms owner or
holder shall not include the Issuer or any party whose agreement
with the Issuer constitutes the underlying security for the
Obligations.
Any service of process on AMBAC may be made to AMBAC or an
agent designated for such purpose and such service of
process shall be valid and binding as to AMBAC. AMBAC's
offices are located at One State Street Plaza, New York, New
York 10004.
This policy is non-cancellable for any reason. The premium
on this policy is not refundable for any reason including
the payment prior to maturity of the Obligations.
IN WITNESS WHEREOF, AMBAC has caused this policy to be executed
by its duly authorized officers in facsimile.
AMBAC Indemnity Corporation
Authorized Representative
President [SEAL]
Secretary
