UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
SYSTEM ENERGY RESOURCES, INC. CERTIFICATE
PURSUANT TO
File No. 70-8511 RULE 24
(Public Utility Holding Company
Act of 1935)
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transaction described below, which was proposed, among others, by
System Energy Resources, Inc. ("Company") in the Application-
Declaration on Form U-1, as amended, in the above File
("Application-Declaration"), has been carried out in accordance
with the terms and conditions of, and for the purposes
represented by the Application-Declaration and pursuant to the
Order of the Securities and Exchange Commission dated May 9, 1955
with respect thereto (Release No. 35-26287).
On May 11, 1995, the Company entered into an Amended
and Restated Installment Sale Agreement, dated as of May 1, 1995,
with Claiborne County, Mississippi (the "County"), pursuant to
which the County issued and sold $44,000,000 principal amount of
its 7.30% Pollution Control Revenue Refunding Bonds (System
Energy Resources, Inc. Project) Series 1995.
Attached hereto and incorporated by reference are:
Exhibit B-4(a) - Conformed copy of Trust Indenture between
the County and the Trustee.
Exhibit B-6(a) - Conformed copy of Amended and Restated
Installment Sale Agreement between the
Company and the County.
Exhibit F-1(a) - Post-effective opinion of Wise Carter Child
& Caraway, Professional Association, counsel
to System Energy.
Exhibit F-2(a) - Post-effective opinion of Reid & Priest.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
certificate to be executed this 23rd day of May, 1995.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ Lee W. Randall
Lee W. Randall
Vice President,
Chief Accounting Officer
Exhibit B-4(a)
CLAIBORNE COUNTY, MISSISSIPPI
to
DEPOSIT GUARANTY NATIONAL BANK,
Trustee
___________________
TRUST INDENTURE
Dated as of May 1, 1995
___________________
Authorizing
Claiborne County, Mississippi
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Trust Indenture)
Page
PARTIES 1
RECITALS 1
GRANTING CLAUSE
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 4
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds 8
SECTION 2.02. Issuance of Bonds 8
SECTION 2.03. Form of Bonds 9
SECTION 2.04. Details, Execution and Payment 9
SECTION 2.05. Authentication; Exchange, Transfer and
Ownership of Bonds 10
SECTION 2.06. Delivery of Bonds; Application of Proceeds 11
SECTION 2.07. Temporary Bonds 11
SECTION 2.08. Mutilated, Destroyed or Lost Bonds 12
SECTION 2.09. Destruction of Bonds 12
SECTION 2.10. Book-Entry Only System 12
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices 14
SECTION 3.02. Notice of Redemption 15
SECTION 3.03. Effect of Call for Redemption 16
SECTION 3.04. Partial Redemption 16
SECTION 3.05. Funds in Trust; Unclaimed Funds 17
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal, Redemption Premium,
if any, and Interest 17
SECTION 4.02. Performance of Covenants; Issuer 17
SECTION 4.03. Instruments of Further Assurance; Liens
and Encumbrances 17
SECTION 4.04. Recordation 18
SECTION 4.05. Rights Under Agreement 18
SECTION 4.06. Prohibited Activities 18
SECTION 4.07. Notices of Trustee 19
ARTICLE V
REVENUE AND FUNDS
SECTION 5.01. Source of Payment of Bonds 19
SECTION 5.02. Creation of Bond Fund 19
SECTION 5.03. Payments into the Bond Fund 19
SECTION 5.04. Use of Moneys in the Bond Fund 19
SECTION 5.05. Custody of the Bond Fund 20
SECTION 5.06. Non-presentment of Bonds 20
SECTION 5.07. Moneys to be Held in Trust 20
SECTION 5.08. Repayment to the Company from
Bond Fund 20
SECTION 5.09. Creation and Use of the Rebate Fund 20
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Moneys 21
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Indenture 21
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default 23
SECTION 8.02. Acceleration 24
SECTION 8.03. Other Remedies 24
SECTION 8.04. Legal Proceedings by Trustee 24
SECTION 8.05. Right of Owners to Direct
Proceedings 25
SECTION 8.06. Appointment of Receivers 25
SECTION 8.07. Waiver 26
SECTION 8.08. Application of Moneys 26
SECTION 8.09. Remedies Vested in the Trustee 27
SECTION 8.10. Rights and Remedies of Owners of the Bonds 27
SECTION 8.11. Termination of Proceedings 28
SECTION 8.12. Waivers of Events of Default 28
SECTION 8.13. Opportunity of Issuer and Company to
Cure Defaults Under Section 8.01(c);
Notice 29
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts 29
SECTION 9.02. Fees, Charges and Expenses of Trustee 32
SECTION 9.03. Notice to Owners of Bonds if Default Occurs 32
SECTION 9.04. Intervention by Trustee 32
SECTION 9.05. Successor Trustee 32
SECTION 9.06. Resignation by Trustee 33
SECTION 9.07. Removal of Trustee 33
SECTION 9.08. Appointment of Successor Trustee; Temporary
Trustee 33
SECTION 9.09. Concerning Any Successor Trustee 33
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent 34
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company 34
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Owners 34
SECTION 10.02. Supplemental Indentures Requiring Consent
of Owners 35
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel 36
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, etc., to Agreement Not
Requiring Consent of Owners 36
SECTION 11.02. Amendments, etc., to Agreement Requiring
Consent of Owners 37
SECTION 11.03. Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel 37
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, etc., of Owners of Bonds 37
SECTION 12.02. Limitation of Rights 38
SECTION 12.03. Severability 38
SECTION 12.04. Notices 38
SECTION 12.05. Trustee as Paying Agent 38
SECTION 12.06. Payments Due on Sundays and Holidays 38
SECTION 12.07. Counterparts 38
SECTION 12.08. Applicable Provisions of Law 39
SECTION 12.09. Captions 39
SECTION 12.10. No Liability of Issuer 39
SIGNATURES 40
EXHIBIT A
ACKNOWLEDGMENTS
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of May 1, 1995, made and
entered into by and between Claiborne County, Mississippi, a
public body corporate and politic and a political subdivision of
the State of Mississippi (the "Issuer"), and Deposit Guaranty
National Bank, a banking corporation duly organized, existing and
authorized to accept and execute trusts of the character herein
set out under the laws of the United States of America, with its
principal office in the City of Jackson, Mississippi, as trustee
(the "Trustee").
WITNESSETH:
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
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the Issuer has heretofore on
July 24, 1985, issued $44,000,000 principal amount of Claiborne
County, Mississippi, Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series D (the "Prior Bonds"),
pursuant to an Indenture of Trust dated as of June 15, 1985,
between Claiborne County and Deposit Guaranty National Bank, as
trustee (the "Prior Indenture"); $44,000,000 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 System Energy Resources, Inc. (the
"Company"), pursuant to an Installment Sale Agreement dated as of
June 15, 1985, 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 the Plant
and the Facilities; and
WHEREAS, the Issuer is authorized by Sections 31-15-21
through 31-15-27, Mississippi Code of 1972, as amended (the
"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 this Indenture, the Issuer has
authorized the issuance of its Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 in the aggregate principal amount of $44,000,000 (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 an Amended and Restated Installment
Sale Agreement between the Issuer and the Company dated as of
May 1, 1995 (the "Agreement"), the Issuer and the Company have
confirmed the sale of the Project by the Issuer to the Company
and agreed that the Issuer will lend the proceeds of the Bonds to
the Company to be applied, together with other funds to be made
available by the Company, to refund the Prior Bonds; and
WHEREAS, the principal of and the premium, if any, and
interest on the Bonds shall be payable solely out of and secured
by an irrevocable pledge of the Revenues and Receipts of the
Issuer under the Agreement (hereinafter defined) and any other
sums which may be received by the Issuer from or in connection
with the issuance of the Bonds and the sale of the Project to the
Company that are part of the Trust Estate (hereinafter defined)
under this Indenture; the Bonds and the premium, if any, and
interest thereon shall never constitute an indebtedness of the
Issuer within the meaning of any constitutional provision or
statutory limitation of the State and shall never constitute or
give rise to a pecuniary liability of the Issuer or a charge
against the general credit or taxing powers of the Issuer, the
State or any political subdivision thereof; and
WHEREAS, the Bonds, the Trustee's Certificate of
Authentication and Clerk's Validation Certificate are to be in
substantially the form set out in Exhibit A hereto, with
appropriate variations, omissions and insertions as permitted or
required by this Indenture; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as provided in this
Indenture, the valid, binding and legal limited obligations of
the Issuer according to the terms thereof, and to constitute this
Indenture a valid assignment and pledge of the rights of the
Issuer in and to the Revenues and Receipts of the Issuer under
the Agreement and the Trust Estate for the payment of the
principal of and the redemption premium, if any, and interest on
the Bonds, and a valid grant of security interest in the trust
funds created and held hereunder, have been done and performed,
and the creation, execution and delivery of this Indenture, and
the creation, execution and issuance of the Bonds, subject to the
terms hereof, have in all respects been duly authorized.
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and of the purchase and acceptance
of the Bonds by the Owners (as hereinafter defined) thereof and
of the sum of One Dollar ($1.00) lawful money of the United
States of America, to the Issuer duly paid by the Trustee at or
before the execution and delivery of these presents, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, in order to secure
the payment of the principal of and premium, if any, and interest
on the Bonds at any time Outstanding under this Indenture
according to their tenor and effect, and the performance and
observance by the Issuer of all the covenants and conditions
expressed or implied herein and contained in the Bonds, the
Issuer has executed and delivered this Indenture to the Trustee,
and the Issuer does hereby grant, bargain, sell, convey,
mortgage, pledge and assign to the Trustee, its successors in
trust and their assigns forever, and does hereby create a
security interest in favor of the Trustee in, the Trust Estate;
TO HAVE AND TO HOLD all the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee, its successors in trust and their
assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
Owners of the Bonds issued under and secured by this Indenture
without preference, priority or distinction as to lien of any
Bonds over any other Bonds.
PROVIDED, HOWEVER, that if, after the right, title and
interest of the Trustee in and to the Trust Estate shall have
ceased, terminated and become void in accordance with Article VII
hereof and the principal of and premium, if any, and interest on
the Bonds shall have been paid to the Owners thereof, then and in
that case the estate and rights hereby granted shall cease,
determine and be void, and thereupon the Trustee shall cancel and
discharge this Indenture and execute and deliver to the Issuer
and the Company such instruments in writing as shall be requisite
to evidence the discharge hereof; otherwise this Indenture to be
and remain in full force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured hereunder
are to be issued, authenticated and delivered, and the Trust
Estate and the other estate and rights hereby granted are to be
dealt with and disposed of, under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and
purposes hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant, with the Trustee
and with the respective Owners, from time to time, of the Bonds,
as follows:
DEFINITIONS
.0. Definitions. In addition to the words and terms
elsewhere defined in this Indenture or in the Agreement, the
following words and terms as used in this Indenture shall have
the following meanings unless the context or use indicates
another or different meaning:
"Act" shall mean Sections 31-15-21 through 31-15-27,
Mississippi Code of 1972, as amended.
"Administration Expenses" shall mean the reasonable
expenses incurred by the Issuer with respect to the Agreement,
this Indenture and any transaction or event contemplated by the
Agreement or this Indenture, including the fee of its counsel and
the compensation and reimbursement of expenses and advances
payable to the Trustee, including its compensation and expenses
as Paying Agent and Bond Registrar.
"Agreement" shall mean the Amended and Restated
Installment Sale Agreement between the Issuer and the Company
dated as of May 1, 1995, relating to the Project, pursuant to
which the Issuer shall lend the principal proceeds of the Bonds
to the Company to be used to refund the Prior Bonds, and any and
all modifications, alterations, amendments and supplements
thereto.
"Authorized Company Representative" shall mean each
person at the time designated to act on behalf of the Company by
written certificate furnished to the Issuer and the Trustee
containing the specimen signature of such person and signed on
behalf of the Company by its President, any Vice President, its
Treasurer or its Secretary together with any Assistant Secretary.
"Board of Supervisors" shall mean the Board of
Supervisors of Claiborne County, Mississippi, the governing body
of the Issuer.
"Bond Counsel" shall mean any firm of nationally
recognized bond counsel selected by the Company and acceptable to
the Trustee.
"Bond Fund" shall mean the fund created by Section 5.02
hereof.
"Bond or Bonds" shall mean the $44,000,000 in aggregate
principal amount of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995 authorized to be issued under this Indenture.
"Bond Registrar" shall mean the registrar appointed in
accordance with Section 2.05 hereof. "Principal Office of the
Bond Registrar" shall mean the principal office of the Trustee.
"Clerk" shall mean the Clerk of the Governing Body.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Each reference to a section of the Code herein shall be
deemed to include the Internal Revenue Code of 1954, as amended
and in effect prior to enactment of the Tax Reform Act of 1986,
and the United States Treasury Regulations proposed or adopted
thereunder, as the same may be in effect from time to time, to
the extent the same are applicable to the Bonds or the use of
proceeds thereof, unless the context clearly requires otherwise.
"Company" shall mean System Energy Resources, Inc., a
corporation organized and existing under the laws of the State of
Arkansas and duly qualified to do business as a foreign corpora
tion in the State of Mississippi, its successors and their
assigns.
"Event of Default" shall mean any event of default
specified in Section 8.01 hereof.
"Facilities" shall mean the real and personal
properties, facilities, machinery and equipment currently
existing at the Plant which are described in Exhibit A to the
Agreement, as revised from time to time to reflect any changes
therein, additions thereto, substitutions therefor and deletions
therefrom permitted by the terms of the Agreement.
"Governing Body" shall mean the Board of Supervisors of
the Issuer.
"Government Obligations" shall mean (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" shall mean this Indenture of Trust between
the Issuer and the Trustee, and any and all modifications,
alterations, amendments and supplements thereto.
"Investment Securities" shall mean any of the following
obligations or securities which may be lawfully acquired under
the laws of the State of Mississippi on which neither the Company
nor the Issuer nor any of their respective affiliates or
subsidiaries is the obligor, contingently or otherwise: (a)
Government Obligations; (b) interest bearing deposit accounts
(which may be represented by certificates of deposit) in
national, state or foreign banks (which may include the Trustee,
the Paying Agent and the Bond Registrar) having a combined
capital and surplus of not less than $50,000,000; (c) bankers'
acceptances drawn on and accepted by commercial banks (which may
include the Trustee, the Paying Agent and the Bond Registrar)
having a combined capital and surplus of not less than
$50,000,000; (d)(i) direct obligations of, (ii) obligations the
principal of and interest on which are unconditionally guaranteed
by, and (iii) any other obligations, the interest on which is
excluded from gross income for purposes of federal income
taxation issued by, any State of the United States of America,
the District of Columbia or the Commonwealth of Puerto Rico, or
any political subdivision, agency, authority or other
instrumentality of any of the foregoing, which, in any case, are
rated by a nationally recognized rating agency in any of its
three highest Rating Categories; (e) obligations of any agency or
instrumentality of the United States of America; (f) commercial
or finance company paper which is rated by a nationally
recognized rating agency in any of its three highest Rating
Categories; and (g) corporate debt securities issued by cor
porations having debt securities rated by a nationally recognized
rating agency in any of its three highest Rating Categories.
"Issuer" shall mean Claiborne County, Mississippi, a
political subdivision organized and existing under the
Constitution and laws of the State of Mississippi, its successors
and their assigns.
"Loan Repayment" shall mean the payments required to be
made by the Company pursuant to Section 5.02 of the Agreement.
"Notice by Mail" or "notice" of any action or condition
"by Mail" shall mean a written notice meeting the requirements of
this Indenture mailed by first-class mail to the Owners of
specified registered Bonds, at the addresses shown in the
registration books maintained pursuant to Section 2.05 hereof.
"Notice by Publication" or "notice" of any action or
condition "by Publication" shall mean publication of a notice
meeting the requirements of this Indenture in a newspaper or
financial journal of general circulation in The City of New York,
New York, which carries financial news, is printed in the English
language and is customarily published on each business day;
provided, however, that any successive weekly or monthly
publication of notice required hereunder may be made, unless
otherwise expressly provided herein, on the same or different
days of the week and in the same or different newspapers or
financial journals; and provided, further, that if, because of
the temporary or permanent suspension of the publication or
general circulation of any newspaper or financial journal or for
any other reason, it is impossible or impracticable to publish
such notice in the manner herein described, then such publication
in lieu thereof as shall be made with the approval of the Trustee
(or, if there be no trustee hereunder, the Issuer) shall
constitute a sufficient publication of such notice.
"Outstanding," when used in reference to the Bonds shall
mean, as on any particular date, the aggregate of all Bonds
authenticated and delivered under this Indenture except:
(a) those cancelled on or prior to such date or
delivered to or acquired by the Trustee on or prior to such date
for cancellation;
(b) those deemed to be paid in accordance with Article
VII of this Indenture; and
(c) those in lieu of or in exchange or substitution for
which other Bonds shall have been authenticated and delivered
pursuant to this Indenture, unless proof satisfactory to the
Trustee and the Company is presented that such Bond is held by a
bona fide holder in due course.
"Owner" shall mean the person, which may be the Company,
in whose name any Bond is registered upon the registration books
maintained pursuant to Section 2.05 hereof.
"Paying Agent" shall mean the Trustee. "Principal
Office of the Paying Agent" shall mean the principal office of
the Trustee.
"Plant" shall mean the Grand Gulf Nuclear Station
located within 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.
"President" shall mean the President of the Governing
Body.
"Project" shall mean the undivided 90% interest in the
Facilities owned by the Company.
"Rating Category" shall mean a generic securities rating
category, without regard to any refinement or gradation of such
rating category by a numerical modifier or otherwise.
"Revenues and Receipts of the Issuer under the
Agreement" shall mean all moneys paid or payable to the Trustee,
for the account of the Issuer in respect of the Loan Repayment
and payments pursuant to Section 9.01 of the Agreement, and all
receipts of the Trustee which, under the provisions of this
Indenture, reduce the amount of such payments.
"State" shall mean the State of Mississippi.
"Supplemental Indenture" shall mean any indenture
between the Issuer and the Trustee modifying, altering, amending,
supplementing or confirming this Indenture for any purpose, in
accordance with the terms hereof.
"Trust Estate" shall mean at any particular time all
right, title and interest of the Issuer in and to: (a) the
Agreement (except its rights under Sections 5.04, 5.05, 5.06,
6.03 and 8.05 thereof and any rights of the Issuer to receive
notices, certificates, requests, requisitions, directions and
other communications thereunder), including without limitation
the Loan Repayment and any other Revenues and Receipts of the
Issuer under the Agreement; and (b) all moneys and obligations
(other than Bonds) which at such time are deposited or are
required to be deposited with, or are held or are required to be
held by or on behalf of, the Trustee in trust under any of the
provisions of this Indenture, including, without limitation, all
amounts, deposits or securities and titles and interests which at
such time are subject to the lien of this Indenture, except for
moneys or obligations deposited with or paid to the Trustee for
the redemption or payment of Bonds which are deemed to have been
paid in accordance with Article VII hereof and the Rebate Fund
created under Section 5.09 hereof.
"Trustee" shall mean Deposit Guaranty National Bank,
Jackson, Mississippi, as trustee under this Indenture, its suc
cessors in trust and their assigns.
I
THE BONDS
.0. Authorized Amount of Bonds. No Bonds may be issued under
the provisions of this Indenture except in accordance with this
Article II.
.1. Issuance of Bonds. There shall be issued under and
secured by this Indenture Bonds of the Issuer in the aggregate
principal amount of Forty-Four Million Dollars ($44,000,000) for
the purpose of providing funds, which, together with other funds
made available therefor by the Company, shall be used to refund
all of the outstanding Prior Bonds. The Bonds shall be
designated "Claiborne County, Mississippi, Pollution Control
Revenue Refunding Bonds (System Energy Resources, Inc. Project)
Series 1995," shall be dated the first day of May, 1995, shall
bear interest from the date determined pursuant to Section 2.04
hereof at the rate of seven and thirty one-hundreths per centum
(7.30%) per annum, which interest shall be payable on the first
day of May and November of each year commencing November 1, 1995,
until the principal sum is paid or duly provided for, and shall
thereupon be stated to mature, subject to the right of prior
redemption as set forth in Section 3.01 hereof.
The Bonds are limited obligations of the Issuer; the
principal of and the redemption premium, if any, and interest on
the Bonds shall be payable solely out of and secured by an
irrevocable pledge of the Revenues and Receipts of the Issuer
under the Agreement and any other sums which may be received by
the Issuer from or in connection with the issuance of the Bonds
and the sale of the Project to the Company that are a part of the
Trust Estate under the Indenture. The Bonds and the redemption
premium, if any, and interest thereon shall never constitute an
indebtedness of the Issuer within the meaning of any
constitutional provision or statutory limitation of the State and
shall never constitute or give rise to a pecuniary liability of
the Issuer or a charge against the general credit or taxing
powers of the Issuer, the State, or any political subdivision
thereof.
.2. Form of Bonds. The Bonds are issuable as fully registered
Bonds in denominations of $5,000 or any integral multiple
thereof. The Bonds shall be substantially in the form set forth
in Exhibit A hereto, with such appropriate variations, omissions
and insertions as are permitted or required by this Indenture,
and may have endorsed thereon such legends or text as may be
necessary or appropriate to conform to any applicable rules and
regulations of any governmental authority or any usage or
requirement of law with respect thereto.
.3. Details, Execution and Payment. Each Bond shall bear
interest from the interest payment date next preceding the date
on which it is authenticated, unless authenticated prior to
November 1, 1995, in which event it shall bear interest from
May 1, 1995, and unless authenticated upon an interest payment
date, in which case it shall bear interest from such interest
payment date; provided, however, that if at the time of
authentication of any Bond interest is in default, such Bond
shall bear interest from the date to which interest has been
paid.
The Bonds shall be executed by the manual or facsimile
signature of the President of the Board of Supervisors of the
Issuer and the seal of the Issuer shall be affixed, impressed,
imprinted or otherwise reproduced thereon and attested by the
manual or facsimile signature of the Clerk of said Board of
Supervisors.
In case any officer whose signature or facsimile
signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he had remained in office until such
delivery, and also any Bond may be signed by or bear the
facsimile signature of such persons as at the actual time of the
execution of such Bond shall be the proper officers to sign such
Bond although at the date of such Bond such persons may not have
been such officers.
The principal of and redemption premium, if any, and the
interest on the Bonds shall be payable in any coin or currency of
the United States of America which on the respective dates of
payment thereof is legal tender for the payment of public and
private debts. The principal of and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee, and payment of the interest on each Bond shall be made
by the Trustee on each interest payment date to the person
appearing on the registration books of the Issuer hereinafter
provided for as the registered Owner thereof on the fifteenth day
of the month preceding such interest payment date, by check in
clearinghouse funds mailed to such registered Owner at his
address as it appears on such registration books. Payment of the
principal of all Bonds shall be made upon the presentation and
surrender of such Bonds as the same shall become due and payable.
.4. Authentication; Exchange, Transfer and Ownership of Bonds.
Only such of the Bonds as shall have endorsed thereon a
certificate of authentication substantially in the form
hereinabove set forth, duly executed by the Trustee, shall be
entitled to any benefit or security under this Indenture. No
Bond shall be valid or obligatory for any purpose unless and
until such certificate of authentication shall have been duly
executed by the Trustee, and such certificate of the Trustee upon
any such Bond shall be conclusive evidence that such Bond has
been duly authenticated and delivered under this Indenture. The
Trustee's certificate of authentication on any Bond shall be
deemed to have been duly executed if signed by an authorized
officer of the Trustee, but it shall not be necessary that the
same officer sign the certificate of authentication on all of the
Bonds that may be issued hereunder at any one time.
Subject to the provisions of Section 2.10 hereof:
( ) Bonds, upon surrender thereof at the principal office of
the Trustee, together with an assignment duly executed by the
registered Owner or his attorney or legal representative in such
form as shall be satisfactory to the Trustee, may, at the option
of the registered Owner thereof, be exchanged for an equal
aggregate principal amount of Bonds, of any denomination or
denominations authorized by this Indenture, and in the same form
as the Bonds surrendered for exchange.
(a) The Issuer hereby authorizes the exchange of Bonds at
the principal office of the Trustee.
(b) The Trustee is hereby appointed as Bond Registrar and as
such shall keep books for the registration and for the transfer
of Bonds as provided in this Indenture.
(c) Any Bond may be transferred only upon the books kept for
the registration and transfer of Bonds upon surrender thereof to
the Bond Registrar together with an assignment duly executed by
the registered Owner or his attorney or legal representative in
such form as shall be satisfactory to the Bond Registrar. Upon
any such transfer the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange for such Bond a new Bond or
Bonds, registered in the name of the transferee, of any
denomination or denominations authorized by this Indenture in an
aggregate principal amount equal to the principal amount of such
Bond.
(d) In all cases in which Bonds shall be exchanged or Bonds
shall be transferred hereunder, the Issuer shall execute and the
Trustee shall authenticate and deliver at the earliest
practicable time Bonds in accordance with the provisions of this
Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee. Such
transfers of registration or exchanges of Bonds shall be without
charge to holders of such Bonds, but any taxes or other
governmental charge required to be paid with respect to such
exchange or transfer shall be paid by the holder of the Bond, and
such charge shall be paid before any such new Bond shall be
delivered. Neither the Issuer nor the Trustee shall be required
to make any such exchange or transfer of Bonds during the fifteen
(15) days immediately preceding the selection of Bonds for such
redemption or after such Bonds or any portion thereof has been
selected for redemption.
(e) Any registered Owner of any Bond is hereby granted power
to transfer absolute title thereto by assignment thereof to a
bona fide purchaser for value (present or antecedent) without
notice of prior defenses or equities or claims of ownership
enforceable against his assignor or any person in the chain of
title and before the maturity of such Bond. Every prior holder
or Owner of any Bond shall be deemed to have waived and renounced
all of his equities or rights therein in favor of every such bona
fide purchaser, and every such bona fide purchaser shall acquire
absolute title thereto and to all rights represented thereby.
(f) At reasonable times and under reasonable regulations
established by the Trustee, the list of registered Owners of the
Bonds may be inspected and copied by the Company or by holders or
Owners (or a designated representative thereof) of ten per centum
(10%) or more in principal amount of Bonds then Outstanding, such
possession or ownership and the authority of such designated
representative to be evidenced to the satisfaction of the
Trustee.
.5. Delivery of Bonds; Application of Proceeds. Upon the
execution and delivery of this Indenture, the Issuer shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver them to the purchasers thereof
as directed by the Issuer as hereinafter in this Section 2.06
provided.
Prior to the delivery by the Trustee of the Bonds
there shall be filed with the Trustee:
( ) A copy, certified by the Clerk, of the resolution
adopted by the Governing Body authorizing the execution and
delivery of the Agreement and this Indenture and the issuance of
the Bonds.
(a) An original duly executed counterpart of the Agreement
and an original duly executed counterpart of this Indenture.
(b) A request and authorization to the Trustee on behalf of
the Issuer, signed by the President, to authenticate and deliver
the Bonds to the purchasers therein identified upon payment to
the Trustee but for the account of the Issuer, of a sum specified
in such request and authorization. The proceeds of such payment
shall be paid over to the Trustee; and deposited or transferred
as follows:
(i) To the Trustee for deposit in the Bond Fund, a
sum equal to the accrued interest, if any, paid by the
original purchasers of the Bonds; and
(ii) To the trustee for the Prior Bonds,
the balance of such proceeds.
.6. Temporary Bonds. Until definitive Bonds are ready for
delivery, there may be executed, and upon request of the Issuer
the Trustee shall authenticate and deliver, in lieu of definitive
Bonds and subject to the same limitations and conditions,
temporary printed, engraved, lithographed or typewritten Bonds,
in denominations of $5,000 or any multiple thereof, as the Issuer
may designate, and with such appropriate omissions, insertions
and variations as may be required.
If temporary Bonds shall be issued, the Issuer shall
cause the definitive Bonds to be prepared and to be executed
and delivered to the Trustee, and the Trustee, upon
presentation to it at its principal office of any temporary
Bond, shall cancel the same and authenticate and deliver in
exchange therefor at the principal office of the Trustee,
without charge to the holder thereof, a definitive Bond or
Bonds of an equal aggregate principal amount as the temporary
Bond surrendered. Until so exchanged the temporary Bonds
shall in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be
issued and authenticated hereunder.
.7. Mutilated, Destroyed or Lost Bonds. In case any Bond
secured hereby shall become mutilated or be destroyed or lost,
the Issuer shall cause to be executed, and the Trustee shall
authenticate and deliver, a new Bond of like date and tenor in
exchange and substitution for and upon the cancellation of such
mutilated Bond, or in lieu of and in substitution for such Bond,
if any, destroyed or lost, upon the holder's paying the
reasonable expenses and charges of the Issuer and the Trustee in
connection therewith and, in the case of a Bond destroyed or
lost, the holder's filing with the Trustee evidence satisfactory
to it and to the Issuer that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the Issuer and the
Trustee indemnity satisfactory to them.
.8. Destruction of Bonds. Whenever any Bonds shall be
delivered to the Trustee upon the cancellation thereof pursuant
to this Indenture, upon payment of the principal amount
represented thereby or for replacement of a mutilated Bond
pursuant to Section 2.08 hereof, such Bonds shall be promptly
cancelled and destroyed by the Trustee and counterparts of a
certificate of destruction evidencing such destruction shall be
furnished by the Trustee to the Issuer and the Company.
Section 2.10. Book-Entry Only System. Upon issuance
of the Bonds, one fully-registered Bond will be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Securities Depository") in the
aggregate principal amount of the Bonds. So long as Cede &
Co. is the registered Owner of the Bonds, as nominee of the
Securities Depository, references herein to the holders of the
Bonds or registered Owner of the Bonds shall mean Cede & Co.
and shall not mean the beneficial owners of the Bonds.
The Letter of Representations in substantially the
form attached hereto as Exhibit B, with such changes,
omissions, insertions and revisions as the Clerk and the
Trustee may approve at any time, is hereby approved, and the
Issuer and the Trustee shall execute and deliver such Letter
of Representations. The approval of the Issuer and the
Trustee of any changes, omissions, insertions and revisions to
the Letter of Representations shall be conclusively
established by the execution of the Letter of Representations
by the Clerk on behalf of the Issuer and the Trustee. The
Issuer and the Trustee acknowledge that the terms and
provisions of said Letter of Representations shall govern in
the event of any inconsistency between the provisions of this
Indenture and said Letter of Representations.
Transfers of beneficial ownership interests in the
Bonds will be accomplished by book entries made by the
Securities Depository, and, in turn by the participants in the
Securities Depository (the "Participants") who act on behalf
of the indirect participants in the Securities Depository (the
"Indirect Participants") and the beneficial owners of the
Bonds.
The Trustee and the Issuer shall recognize the
Securities Depository or its nominee, Cede & Co., as the Owner
of the Bonds for all purposes, including notices and voting.
Conveyance of notices and other communications by the
Securities Depository to Participants and by such Participants
to Indirect Participants, and by Participants and Indirect
Participants to beneficial owners of the Bonds will be
governed by arrangements among the Securities Depository, the
Participants and the Indirect Participants, subject to any
statutory and regulatory requirements as may be in effect from
time to time.
NEITHER THE ISSUER NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH
RESPECT TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE
SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT
PARTICIPANT; (ii) THE PAYMENT BY THE SECURITIES DEPOSITORY OR
ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE
TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL AMOUNT OR
REDEMPTION PRICE OF OR INTEREST ON THE BONDS; (iii) THE
DELIVERY TO THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR ANY INDIRECT PARTICIPANT OF ANY NOTICE TO ANY BENEFICIAL
OWNER THAT IS REQUIRED OR PERMITTED TO BE GIVEN TO HOLDERS OF
THE BONDS UNDER THE TERMS OF THIS INDENTURE; (iv) THE
SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE PAYMENT IN THE
EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (v) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to
discontinue providing its services with respect to the Bonds
at any time by giving notice to the Trustee and discharging
its responsibilities with respect thereto under the applicable
law. In such event, or in the event the Issuer at the request
of the Company elects to use a similar book-entry system with
another securities depository, there may be a successor
securities depository (all references to the Securities
Depository include any such successor). The Issuer at the
request of the Company may also determine to discontinue
participation in the system of book-entry transfer through the
Securities Depository at any time by giving reasonable notice
to the Securities Depository. If the book-entry system is
terminated, Bond certificates will be delivered to the
beneficial owners, after a list of such beneficial owners is
provided to the Trustee, at the expense of the Company, as
provided herein and all references to the Securities
Depository shall be of no further force or effect. The
beneficial owners of the Bonds, upon registration of
certificates held in the beneficial owners' names, will then
become the registered Owners of the Bonds and registration,
transfer and exchange of the Bonds by such Owners will be
governed by Section 2.05 herein.
Whenever, during the term of the bonds the beneficial
ownership thereof is determined by a book entry at the
Securities Depository, the requirements of this Indenture of
holding, delivering or transferring the Bonds shall be deemed
modified to require the appropriate person to meet the
requirements of the Securities Depository as to registering or
transferring the book entry to produce the same effect.
II
REDEMPTION OF BONDS BEFORE MATURITY
.0. Redemption Dates and Prices. The Bonds are non-callable
for redemption prior to May 1, 2000. Thereafter, the Bonds are
subject to optional redemption by the Issuer, at the direction of
the Company, prior to maturity in whole or in part, in such
manner as the Trustee may determine, at any time on or after May
1, 2000, at the redemption prices (expressed as percentages of
principal amount) set forth in the table below plus accrued
interest to the redemption date:
Optional
Redemption
Redemption Period Price
May 1, 2000 through April 30, 2001........... 102%
May 1, 2001 through April 30, 2002........... 101%
May 1, 2002 and thereafter................... 100%
The Bonds also shall be subject to optional redemption
by the Issuer, at the direction of the Company, in whole but
not in part, at any time, at a redemption price equal to the
principal amount plus accrued interest to the redemption
date if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined
that the continued operation of the Facilities is
impracticable, uneconomical or undesirable due to (A) the
imposition of taxes, other than ad valorem taxes currently
levied upon privately owned property used for the same general
purpose as the Facilities, or other liabilities or burdens
with respect to the Facilities or the operation thereof,
(B) changes in technology, in environmental standards or legal
requirements or in the economic availability of materials,
supplies, equipment or labor or (C) destruction of or damage
to all or part of the Facilities;
(iii) all or substantially all of the
Facilities or the Plant shall have been condemned or taken by
eminent domain; or
(iv) the operation of the Facilities or
the Plant shall have been enjoined or shall have otherwise
been prohibited by an order, decree, rule or regulation of any
court or of any federal, state or local regulatory body,
administrative agency or other governmental body.
The Bonds shall also be subject to optional
redemption by the Issuer at the direction of the Company, in
whole but not in part, at any time prior to May 1, 2000, at a
redemption price equal to 102% of the principal amount being
redeemed plus accrued interest to the redemption date, if the
Company shall have consolidated with or merged with or into
another corporation, or sold or otherwise transferred all or
substantially all of its assets.
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later
than one hundred eighty (180) days after a final determination
or final action referred to below, at a redemption price equal
to the principal amount thereof plus accrued interest thereon
to the date of redemption, but without premium, if, as a
result of any final determination of a federal court or final
action of the Internal Revenue Service, in a proceeding in
which the Company has received timely notice of and has had an
opportunity to participate at its expense, it is determined
that as a result of the failure of the Company to observe any
covenant, agreement or representation in the Agreement or the
Issuer to observe any covenant, agreement or representation in
this Indenture, the interest payable on the Bonds is not
excludable from gross income of an Owner of a Bond (other than
an Owner who is a "substantial user" of the Project or
"related person" within the meaning of Section 147 of the Code
and applicable regulations promulgated thereunder) under
Section 103 of the Code. The Bonds shall be redeemed, whether
in whole or in part, in such principal amount that the
interest payable on the Bonds remaining Outstanding after such
redemption would not be included in the gross income of a
holder thereof (other than an Owner who is a "substantial
user" or "related person" within the meaning of Section 147(a)
of the Code and applicable regulations promulgated
thereunder).
If the Bonds cease to be held in book entry form and
less than all of the Bonds shall be called for redemption, the
particular Bonds or portions of registered Bonds to be
redeemed shall be selected by the Trustee by lot or in such
other manner as the Trustee in its discretion may determine;
provided, however, that the portion of any registered Bond to
be redeemed shall be in the principal amount of $5,000 or some
multiple thereof, and that, in selecting Bonds for redemption,
the Trustee shall treat each Bond as representing that number
of Bonds which is obtained by dividing the principal amount of
such registered Bond by $5,000.
.1. Notice of Redemption. At least thirty (30) days but not
more than sixty (60) days before the redemption date of any
Bonds, the Trustee shall cause a notice of any such redemption,
either in whole or in part, to be mailed, postage prepaid, to all
Owners of Bonds to be redeemed in whole or in part at their
addresses as they appear on the registration books hereinabove
provided for, but failure so to mail any such notice shall not
affect the validity of the proceedings for such redemption. Each
such notice shall set forth the date fixed for redemption, the
redemption price to be paid and, if less than all of the Bonds
then Outstanding shall be called for redemption, the distinctive
numbers and letters, if any, of such Bonds to be redeemed and, in
the case of Bonds to be redeemed in part only, the portion of the
principal amount thereof to be redeemed. In case any Bond is to
be redeemed in part only, the notice of redemption which relates
to such Bond shall state also that on or after the redemption
date, upon surrender of such Bond, a new Bond in principal amount
equal to the unredeemed portion of such Bond will be issued.
If at the time of giving of notice of an optional
redemption there shall not have been deposited with the
Trustee moneys sufficient to redeem all the Bonds called for
redemption, such notice may state that it is conditioned upon
the deposit of the redemption moneys with the Trustee not
later than the opening of business on the redemption date, and
such notice shall be of no effect unless such moneys are so
deposited. If such moneys are not so deposited, the Bonds
shall not be redeemed and the Trustee shall, in the manner in
which notice of redemption was given, give notice that such
moneys were not deposited.
.2. Effect of Call for Redemption. On the date so designated
for redemption, moneys for payment of the redemption price and
accrued interest to the redemption date being held by the Trustee
in trust for the Owners of the Bonds or portions thereof to be
redeemed, all as provided in this Indenture, the Bonds or
portions of Bonds so called for redemption shall become and be
due and payable at the redemption price provided for redemption
of such Bonds or portions of Bonds on such date, interest on the
Bonds or portions of Bonds so called for redemption shall cease
to accrue, such Bonds or portions of Bonds shall cease to be
entitled to any benefit or security under this Indenture, and the
Owners of such Bonds or portions of Bonds shall have no rights in
respect thereof except to receive payment of the redemption price
thereof and accrued interest to the redemption date and, to the
extent provided in Section 3.04 hereof, to receive Bonds for any
unredeemed portions of Bonds.
.3. Partial Redemption. In case part but not all of an
Outstanding Bond shall be selected for redemption, the Owner
thereof or his attorney or legal representative shall present and
surrender such Bond to the Trustee for payment of the principal
amount thereof so called for redemption, and the Issuer shall
execute and the Trustee shall authenticate and deliver to or upon
the order of such Owner or his attorney or legal representative,
without charge therefor, for the unredeemed portion of the
principal amount of the Bond so surrendered, a Bond of the same
maturity and bearing interest at the same rate.
.4. Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the Bond Fund or shall have
received from any other source and set aside for the purpose of
paying any of the Bonds, either at the maturity thereof or upon
call for redemption, shall be held in trust, without liability
for interest thereon, for the respective Owners of such Bonds.
Any moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the Owners of such
Bonds for a period of six (6) years, (or, if shorter, the period
ending on the date immediately preceding the date that such funds
would escheat to the State of Mississippi) after the date on
which such Bonds shall have become due and payable shall upon
request in writing be paid to the Company and, thereafter, the
holders of such Bonds shall look only to the Company for the
payment thereof and then only to the extent of the amount so
received without any interest thereon, and the Issuer and the
Trustee shall have no responsibility with respect to such moneys.
III
GENERAL COVENANTS
.0. Payment of Principal, Redemption Premium, if any, and
Interest. The Issuer covenants that it will promptly pay the
principal of and redemption premium, if any, and interest on
every Bond issued under this Indenture at the place, on the dates
and in the manner provided herein and in said Bonds on or before
10:00 a.m. Central Standard Time according to the true intent and
meaning thereof, but only from the Revenues and Receipts of the
Issuer under the Agreement specifically pledged herein for such
purposes.
.1. Performance of Covenants; Issuer. The Issuer covenants
that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated and
delivered hereunder and in all of its proceedings pertaining
hereto. The Issuer covenants that it is duly authorized under
the Constitution and laws of the State of Mississippi, including
particularly and without limitation the Act, to issue the Bonds
and to execute this Indenture, to assign and pledge the
Agreement, the amounts payable under the Agreement and to pledge
the amounts hereby pledged in the manner and to the extent herein
set forth; that all action on its part necessary for the issuance
of the Bonds and the execution and delivery of this Indenture has
been duly and effectively taken, and that the Bonds in the hands
of the Owners thereof are and will be valid and enforceable
obligations of the Issuer according to the terms thereof and
hereof.
.2. Instruments of Further Assurance; Liens and Encumbrances.
The Issuer covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better pledging and assigning unto the
Trustee all and singular the purchase price installments and any
other income and other moneys pledged hereby to the payment of
the principal of and interest and redemption premium, if any, on
the Bonds. The Issuer further covenants that it will not create
or suffer to be created any lien, encumbrance or charge upon its
interest in the Agreement, including purchase price installments
or any other income from the Agreement; provided, however, that
nothing in this Section 4.03 shall require the Issuer to pay or
cause to be discharged, or make provision for, any such lien,
encumbrance or charge so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings.
.3. Recordation. The Company is obligated pursuant to Section
10.01 of the Agreement to take all actions that at the time and
from time to time may be necessary (or, in the opinion of the
Trustee, may be necessary) to perfect, preserve, protect and
secure the interests of the Issuer and the Trustee, or either, in
and to the Revenues and Receipts of the Issuer under the
Agreement, including, without limitation, the filing of all
financing and continuation statements that may be required under
the Mississippi Uniform Commercial Code. The Issuer and the
Trustee covenant that they will execute all documents necessary
to permit the Company to fulfill its obligations under said
Section 10.01 of the Agreement.
.4. Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth
the covenants and obligations of the Issuer and the Company,
including provisions that subsequent to the issuance of Bonds and
prior to their payment in full or provision for payment thereof
in accordance with the provisions thereof the Agreement may not
be amended, changed, modified, altered or terminated (other than
as provided therein) without the concurring written consent of
the Trustee, and reference is hereby made to the same for a
detailed statement of said covenants and obligations of the
Company thereunder; and the Issuer agrees that the Trustee in its
own name or in the name of the Issuer may enforce all rights of
the Issuer and all obligations of the Company under and pursuant
to the Agreement for and on behalf of the Owners of the Bonds,
whether or not the Issuer is in default hereunder.
.5. Prohibited Activities. The Issuer and the Trustee
covenant that neither of them shall take any action or suffer or
permit any action to be taken or condition to exist which causes
or may cause the interest payable on the Bonds to be includable
in gross income for purposes of federal income taxation. Without
limiting the generality of the foregoing, the Issuer and the
Trustee covenant that (a) the proceeds of the sale of the Bonds,
the earnings thereon, and any other moneys on deposit in any fund
or account maintained in respect of the Bonds (whether such
moneys were derived from the proceeds of the sale of the Bonds or
from other sources) will not be used in a manner which would
cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Code, and (b) all action with
respect to the Bonds required by Section 148(f) of the Code shall
be taken in a timely manner.
.6. Notices of Trustee. The Trustee shall give notice to
both the Issuer and the Company whenever it is required hereby to
give notice to either and, additionally, shall furnish to the
Issuer and the Company copies of any Notice by Mail or
Publication given by it pursuant to any provision hereof.
IV
REVENUES AND FUNDS
.0. Source of Payment of Bonds. The Bonds authenticated and
delivered hereunder are the obligations of the Issuer to make
payments hereunder in respect of the principal of and redemption
premium, if any, and interest on such Bonds. The Bonds are not
general obligations of the Issuer but are limited obligations
payable solely from Revenues and Receipts of the Issuer under the
Agreement as authorized by the Act and from the Trust Estate
pledged hereunder.
The payments to be made by the Company under Section
5.02 of the Agreement are to be paid directly to the Trustee
for the account of the Issuer and deposited in the Bond Fund.
Such payments shall be sufficient in amount to provide for,
and are pledged to secure, the payment of the principal of and
redemption premium, if any, and interest on the Bonds.
.1. Creation of Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated
"Claiborne County Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995 Bond Fund."
Moneys deposited therein shall be used to pay the principal of
and redemption premium, if any, and interest on the Bonds as
provided in this Indenture.
.2. Payments into the Bond Fund. There shall be deposited
into the Bond Fund any accrued interest received from the sale of
the Bonds. In addition, there shall be deposited into the Bond
Fund, as and when received, (i) all payments made by the Company
pursuant to Section 5.02 of the Agreement; (ii) all other moneys
received by the Trustee under and pursuant to any of the
provisions of the Agreement which are required, or which are
accompanied by directions from the Company that such moneys are
to be paid into the Bond Fund; (iii) all payments or moneys
received or realized as part of the Trust Estate pledged
hereunder. The Issuer hereby covenants and agrees that, so long
as any of the Bonds are Outstanding, it will deposit, or cause to
be paid to the Trustee for deposit in the Bond Fund for its
account, sufficient sums from Revenues and Receipts of the Issuer
under the Agreement, promptly to meet and pay the principal of
and redemption premium, if any, and interest on the Bonds as the
same become due and payable; provided, however, that nothing
herein shall be construed as requiring the Issuer to use any
funds or revenues from any source other than the Revenues and
Receipts of the Issuer under the Agreement.
.3. Use of Moneys in the Bond Fund. Except as provided in
Section 5.08 hereof, moneys in the Bond Fund shall be used solely
for the payment of the principal of and redemption premium, if
any, and interest on the Bonds.
.4. Custody of the Bond Fund. The Bond Fund shall be in the
custody of the Trustee but in the name of the Issuer, and the
Issuer hereby authorizes and directs the Trustee to withdraw
sufficient funds from the Bond Fund to pay the principal of and
redemption premium, if any, and interest on the Bonds as the same
become due and payable for the purpose of paying said principal,
redemption premium, if any, and interest, which authorization and
direction the Trustee hereby accepts.
.5. Non-presentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due,
whether at stated maturity, upon redemption, upon acceleration or
otherwise, if funds sufficient to pay such Bond shall have been
made available to the Trustee for the benefit of the holder
thereof, all liability of the Issuer to the holder thereof for
the payment of such Bond shall forthwith cease, terminate and be
completely discharged.
.6. Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for the account of the Bond
Fund under any provision of this Indenture or the Agreement shall
be held by the Trustee in trust, and except for moneys deposited
with or paid to the Trustee for the redemption of the Bonds,
notice of the redemption of which has been duly given and for
moneys deposited with or paid to the Trustee pursuant to Article
VII hereof, shall, while held by the Trustee, constitute part of
the Trust Estate and be subject to the security interest created
hereby.
.7. Repayment to the Company from Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of the principal
of and redemption premium, if any, and interest on the Bonds and
the fees and expenses of the Trustee and all other amounts
required to be paid hereunder shall belong and be paid to the
Company.
.8. Creation and Use of the Rebate Fund. There is hereby
created and established a special fund to be designated
"Claiborne County Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995 Rebate Fund"
(the "Rebate Fund") which shall be held by the Trustee, in trust,
for the benefit of the Issuer to secure payment to the United
States Government of all amounts to become due to the United
States Government under the rebate requirements set forth in
Section 148(f) of the Code and to facilitate compliance by the
Issuer, the Trustee, and the Company with the provisions of the
Company's Tax Certificate and Covenants pertaining to the Bonds
(the "Certificate").
The Trustee shall apply any moneys in the Rebate Fund
in accordance with written instructions from the Company. The
Company is obligated, pursuant to the Certificate, to give
such instructions to the Trustee in accordance with the
Certificate.
The Issuer and the Trustee shall not make or agree to
make any payments or participate in any non-arms-length
transaction which would have the effect of reducing the
earnings on investments, thereby reducing the amount required
to be rebated to the United States under Section 148(f) of the
Code and regulations thereunder.
The Rebate Fund shall not provide further security
for the Bonds.
V
INVESTMENTS
.0. Investment of Moneys. Moneys in the Bond Fund shall, at
the direction of the Company prior to the occurrence of an Event
of Default (as defined in Section 8.01 hereof), be invested and
reinvested in Investment Securities. In addition, the Trustee
shall, at the direction of the Company prior to the occurrence of
an Event of Default, enter into option agreements and agreements
to lend securities with respect to any Investment Securities held
by it, to the extent permitted by Mississippi law. Subject to
the further provisions of this Section 6.01, prior to the
occurrence of an Event of Default, such investments shall be
made, and such agreements entered into, by the Trustee as
directed and designated by the Company in a certificate of, or
telephonic advice promptly confirmed by a certificate of, an
Authorized Company Representative. As and when any amounts thus
invested may be needed for disbursements from the Bond Fund, the
Trustee shall cause a sufficient amount of such investments to be
sold or otherwise converted into cash to the credit of such fund.
As long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to designate the
investments to be sold and to otherwise direct the Trustee in the
sale or conversion to cash of the investments made with the
moneys in the Bond Fund, provided that the Trustee shall be
entitled to conclusively assume the absence of any such Event of
Default unless it has notice thereof within the meaning of
Section 9.01(h) hereof. After the occurrence of an Event of
Default, the Trustee shall have the right to make, in its sole
and absolute discretion, any and all investment or other
decisions that would otherwise be made by the Company pursuant to
this Section 6.01 prior to the occurrence of an Event of Default.
VI
DISCHARGE OF INDENTURE
.0. Discharge of Indenture. When the principal of and
redemption premium, if any, and interest on all of the Bonds
shall have been paid, or deemed paid as provided in this Article,
and if the Issuer shall not then be in default under any of its
other obligations under the terms of this Indenture, and if the
Company shall have caused to be paid to the Trustee all other
sums of money due or to become due according to the provisions
hereof (or shall have made arrangements satisfactory to the
Trustee for such payment) and shall not then be in default under
any of its obligations under the terms of the Agreement, then the
lien created hereby shall be discharged and satisfied, and
thereupon the Trustee shall execute and deliver to the Issuer
such instruments in writing as shall be requisite to cancel and
discharge the Agreement and to evidence the discharge and
cancellation of the lien; provided, however, that the Trustee
shall remain obligated to hold in trust any amounts then
remaining in the Bond Fund and to pay to the holders of the Bonds
any amounts held by the Trustee for the payment of the principal
of and redemption premium, if any, and interest on the Bonds
according to the provisions of Section 5.04 hereof and to pay any
remaining amounts to the Company as provided in Article V hereof.
Any Bond shall be deemed to be paid within the
meaning of this Article when delivered to the Trustee for
cancellation or when payment of the principal of and
redemption premium, if any, and interest thereon to the due
date thereof (whether at maturity, upon redemption, upon
acceleration or otherwise) either (a) shall have been made or
caused to be made in accordance with the terms thereof, or
(b) shall have been provided by depositing with the Trustee,
for such payment, (i) moneys sufficient to make such payment
or (ii) moneys and/or Government Obligations maturing as to
principal and interest in such amounts and at such times as
will insure the availability of sufficient moneys to make such
payment, provided that all necessary and proper fees,
compensation and expenses of the Trustee pertaining to the
Bonds with respect to which such deposit is made shall have
been paid or the payment thereof provided for to the
satisfaction of the Trustee. At such times as a Bond shall be
deemed to be paid hereunder, as aforesaid, it shall no longer
be secured by or entitled to the benefits of this Indenture,
except for the purposes of any such payment from such moneys
or Government Obligations.
Notwithstanding the foregoing, no deposit under
clause (b) of the immediately preceding paragraph shall be
deemed a payment of such Bonds as aforesaid until (1) proper
notice of redemption of such Bonds shall have been given in
accordance with Section 3.02 hereof, or in the event said
Bonds are not by their terms subject to redemption within the
next succeeding sixty (60) days, until the Company shall have
given the Trustee on behalf of the Issuer, in form
satisfactory to the Trustee, irrevocable instructions to give
proper notice of such redemption and to notify, as soon as
practicable, the holders of the Bonds in accordance with
Article III hereof that the deposit required by (b) above has
been made with the Trustee and that said Bonds are deemed to
have been paid in accordance with this Article and stating
such maturity or redemption date upon which moneys are to be
available for the payment of the principal of and redemption
premium, if any, on said Bonds, plus interest, or (2) the
stated maturity of such Bonds. Any moneys so deposited with
the Trustee as provided in this Article VII, only at the
written direction or telecopy direction confirmed in writing
of the Company, may also be invested and reinvested in
Government Obligations maturing in the amounts and times as
hereinbefore set forth, and all income from all Government
Obligations in the hands of the Trustee pursuant to this
Article which is not required for the payment of the Bonds and
interest and redemption premium thereon with respect to which
such moneys shall have been so deposited, shall be deposited
in the Bond Fund as and when realized and collected for use
and application as are other moneys deposited in that Fund;
provided, in addition, that the Trustee shall have received
the opinion of Bond Counsel to the effect that such deposit
does not adversely effect the exclusion of the interest on the
Bonds from gross income for purposes of federal income
taxation.
VII
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
.0. Events of Default. Each of the following events shall
constitute and be referred to in this Indenture as an "Event of
Default":
( ) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the continuance
thereof for a period of sixty (60) days;
(a) default in the due and punctual payment of the
principal of and redemption premium, if any, on any Bond hereby secured and
Outstanding, whether at the stated maturity thereof, or upon
proceedings for the unconditional redemption thereof, or upon the
maturity thereof by acceleration;
(b) default in the payment of any other amount required
to be paid under this Indenture or in the performance or observance
of any other of the covenants, agreements or conditions contained
in this Indenture, or in the Bonds issued under this Indenture,
and continuance thereof for a period of ninety (90) days after
written notice specifying such failure and requesting that it be
remedied, shall have been given to the Issuer and the Company by
the Trustee, which may give such notice in its discretion and
shall give such notice at the written request of Owners of not
less than ten per centum (10%) in aggregate principal amount of
the Bonds then Outstanding, unless the Trustee, or the Trustee
and Owners of any aggregate principal amount of Bonds not less
than the aggregate principal amount of Bonds the Owners of which
requested such notice, as the case may be, shall agree in writing
to an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Owners of such
principal amount of Bonds, as the case may be, shall be deemed to
have agreed to an extension of such period if corrective action
is instituted by the Issuer, or the Company on behalf of the
Issuer, within such period and is being diligently pursued; or
(c) the occurrence of an "Event of Default"
under Section 8.01(c) or (d) of the Agreement.
The term "default" as used in clauses (a), (b)
and (c) above shall mean default by the Issuer in the
performance or observance of any of the covenants,
agreements or conditions on its part contained in this
Indenture, or in the Bonds outstanding hereunder,
exclusive of any period of grace required to constitute a
default an "Event of Default" as hereinabove provided.
.1. Acceleration. Upon the occurrence and continuance of an
Event of Default described in clause (a), (b) or (d) of the first
paragraph of Section 8.01 hereof, the Trustee may, and upon the
request of the Owners of 25% in aggregate principal amount of all
Bonds then Outstanding shall, by notice in writing to the Issuer
and the Company, declare the principal of all Bonds then
Outstanding to be immediately due and payable; and upon such
declaration the said principal, together with interest accrued
thereon to the date of acceleration, shall become due and payable
immediately at the place of payment provided therein, anything in
this Indenture or in the Bonds to the contrary notwithstanding.
Upon the occurrence of any acceleration hereunder, the Trustee
shall immediately declare all payments required to be paid
pursuant to Section 5.02 of the Agreement to be due and payable
immediately.
Upon the occurrence of any acceleration hereunder,
the Trustee shall give Notice by Mail to the Owners of all
Bonds Outstanding of the occurrence of such acceleration.
If, after the principal of the Bonds has become due
and payable, all arrears of interest and interest on overdue
installments of interest (if lawful) at the rate per annum
borne by the Bonds and the principal and redemption premium,
if any, on all Bonds then Outstanding which shall have become
due and payable otherwise than by acceleration and all other
sums payable under this Indenture except the principal of, and
interest on, the Bonds which by such acceleration shall have
become due and payable upon the Bonds, are paid by the Issuer,
and the Issuer pays the reasonable charges of the Trustee, the
bondholders and any trustee appointed under law, including the
Trustee's reasonable attorney's fees, then, and in every such
case, the Trustee shall annul such acceleration and its
consequences, and such annulment shall be binding upon all
Owners of Bonds issued hereunder; but no such annulment shall
extend to or affect any subsequent default or impair any right
or remedy consequent thereon. The Trustee shall forward a
copy of such annulment notice pursuant to this paragraph to
the Issuer.
.2. Other Remedies. If any Event of Default occurs and is
continuing, except as otherwise provided in Section 9.11 hereof,
the Trustee may pursue any available remedy by suit at law or in
equity to enforce the payment of the principal of and redemption
premium, if any, and interest on the Bonds then Outstanding
hereunder, then due and payable, and enforce each and every right
granted to it under the Agreement and any supplements or
amendments thereto for the benefit of the Owners of the Bonds.
In exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
Owners of the Bonds.
.3. Legal Proceedings by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may,
and upon the written request of the Owners of twenty-five per
centum (25%) in aggregate principal amount of all Bonds then
Outstanding and receipt of indemnity to its satisfaction shall,
in its own name as Trustee:
( ) by mandamus, or other suit, action or
proceeding at law or in equity, enforce all rights of the Owners of
the Bonds, including the right to require the Issuer to enforce any
rights under the Agreement and to require the Issuer to carry out any
other provisions of this Indenture for the benefit of the Owners
of the Bonds and to perform its duties under the Act;
(a) bring suit upon the Bonds;
(b) by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for the
Owners of the Bonds; or
(c) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights of the Owners
of the Bonds.
No remedy conferred upon or reserved to the
Trustee or to the Owners of the Bonds by the terms of this
Indenture is intended to be exclusive of any other remedy,
but each and every such remedy shall be cumulative and
shall be in addition to any other remedy given to the
Trustee or to the Owners of the Bonds hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power
accruing upon any default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of
any such default or vent of Default or acquiescence therein;
and every such right and power may be exercised from time to
time as often as may be deemed expedient.
No waiver of any default or Event of Default
hereunder, whether by the Trustee or by the Owners of the
Bonds, shall extend to or shall affect any subsequent default
or Event of Default or shall impair any rights or remedies
consequent thereon.
.4. Right of Owners to Direct Proceedings. Anything in this
Indenture to the contrary notwithstanding, the Owners of a
majority in aggregate principal amount of Bonds then Outstanding
shall have the right, at any time, by an instrument or
instruments in writing executed and delivered to the Trustee, to
direct the method and place of conducting all proceedings to be
taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder, provided, that such
direction shall not be otherwise than in accordance with the
provisions of law or of this Indenture.
.5. Appointment of Receivers. Upon the occurrence of an Event
of Default, and upon the filing of a suit or other commencement
of judicial proceedings to enforce the rights of the Trustee and
of the Owners of the Bonds under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the Trust Estate, with such powers as
the court making such appointment shall confer.
.6. Waiver. Upon the occurrence of an Event of Default, to
the extent that such rights may then lawfully be waived, neither
the Issuer, nor the State of Mississippi, nor any political
subdivision thereof, nor anyone claiming through or under any of
them, shall set up, claim, or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the Issuer, for itself and all
who may claim through or under it, hereby waives, to the extent
that it lawfully may do so, the benefit of all such laws.
.7. Application of Moneys. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions
of this Article VIII shall, after payment of the costs and
expenses of the proceedings resulting in the collection of such
moneys and of the expenses, liabilities and advances incurred or
made by the Trustee, including but not limited to payments for
and expenses of third party professionals, be deposited in the
Bond Fund and all moneys in the Bond Fund shall be applied as
follows:
( ) Unless the principal of all the Bonds shall have become
due and payable, all such moneys shall be applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the Bonds,
in the order of the maturity of the installments of such
interest and, if the amount available shall not be sufficient
to pay in full any particular installment, then to the payment
ratably, according to the amounts due on such installment, to
the persons entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons
entitled thereto of the unpaid principal of and
redemption premium, if any, on any of the Bonds which
shall have become due (other than Bonds matured or
called for redemption for the payment of which moneys
are held pursuant to the provisions of this
Indenture), in the order of their due dates, with
interest on such Bonds from the respective dates upon
which they became due and, if the amount available
shall not be sufficient to pay in full Bonds due on
any particular date, together with such interest,
then to the payment ratably, according to the amount
of principal due on such date, to the persons
entitled thereto without any discrimination or
privilege.
THIRD - Payment of interest on and
principal of the Bonds, and to the redemption of
Bonds in accordance with the provisions of Article
III.
(a) If the principal of all the Bonds shall have become due
and payable, all such moneys shall be applied to the payment of
the principal and interest then due upon the Bonds, without
preference or priority of principal over interest or of interest
over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal
and interest, to the persons entitled thereto without any
discrimination or privilege.
(b) If the principal of all the Bonds shall have become due
and payable, and if such acceleration shall thereafter have been
rescinded and annulled under the provisions of this Article VIII
then, subject to the provisions of subsection (b) of this Section
8.08 in the event that the principal of all the Bonds shall later
become due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of subsection (a) of
this Section 8.08.
Whenever moneys are to be applied pursuant to the
provisions of this Section 8.08, such moneys shall be applied
at such times, and from time to time, as the Trustee shall
determine, having due regard to the amount of such moneys
available for application and the likelihood of additional
moneys becoming available for such application in the future.
Whenever the Trustee shall apply such funds, it shall fix the
date (which shall be an interest payment date unless it shall
deem another date more suitable) upon which such application
is to be made and upon such date interest on the amounts of
principal to be paid on such dates shall cease to accrue. The
Trustee shall give such notice as it may deem appropriate of
the deposit with it of any such moneys and of the fixing of
any such date, and shall not be required to make payment to
the Owner of any unpaid Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of and redemption premium, if
any, and interest on all Bonds have been paid under the
provisions of this Section 8.08 and all expenses and charges
of the Trustee have been paid, any balance remaining in the
Bond Fund shall be paid to the Company as provided in Section
5.08 hereof.
.8. Remedies Vested in the Trustee. All rights of action
(including the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any Owners of the Bonds; and
any recovery of judgment shall subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the Owners of
the Outstanding Bonds.
.9. Rights and Remedies of Owners of the Bonds. No Owner of
any Bond shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless
also a default has occurred of which the Trustee has been
notified as provided in Section 9.01(h) hereof, or of which by
said subsection it is deemed to have notice, nor unless also such
default shall have become an Event of Default and the Owners of
not less than twenty-five percent (25%) in aggregate principal
amount of Bonds then Outstanding shall have made written request
to the Trustee and shall have offered it reasonable opportunity
either to proceed to exercise the powers hereinbefore granted or
to institute such action, suit or proceeding in their own name or
names, nor unless also they have offered to the Trustee indemnity
as provided in Section 9.01(l) hereof, nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more Owners of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his or
their action or to enforce any right hereunder except in the
manner herein provided, and that all proceedings at law or in
equity shall be instituted, had and maintained in the manner
herein provided and for the equal and ratable benefit of the
Owners of all Bonds then Outstanding. Nothing in this Indenture
contained shall, however, affect or impair the right of any
bondholder to enforce the payment of the principal of and
redemption premium, if any, and interest on any Bond at and after
the maturity thereof, or the obligation of the Issuer to pay the
principal of and redemption premium, if any, and interest on each
of the Bonds issued hereunder to the respective Owners thereof at
the time, place, from the source and in the manner expressed in
the Bonds.
.10. Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any right under this Indenture by the
appointment of a receiver, or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason, or
shall have been determined adversely, then and in every such case
the Issuer and the Trustee shall be restored to their former
positions and rights hereunder; and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings
had been taken, except to the extent the Trustee is legally bound
by such adverse determination.
.11. Waivers of Events of Default. The Trustee may in its
discretion waive any Event of Default hereunder and its
consequences and rescind any acceleration of maturity of
principal, and shall do so upon the written request of the Owners
of (a) not less than two-thirds in principal amount of all the
Bonds then Outstanding in respect of which default in the payment
of principal and/or interest exists, or (b) more than one-half in
principal amount of all Bonds then Outstanding in the case of any
other default; provided, however, that there shall not be waived
(i) any Event of Default in the payment of the principal of any
Outstanding Bonds at the date of maturity specified therein or
(ii) any default in the payment when due of the interest on any
such Bonds unless prior to such waiver or rescission, all arrears
of interest, with interest (to the extent permitted by law) at
the rate borne by the Bonds in respect of which such default
shall have occurred on overdue installments of interest or all
arrears of payments of principal when due, as the case may be,
and all expenses of the Trustee in connection with such default
shall have been paid or provided for, and in cases of any such
waiver or rescission, or in case any proceeding taken by the
Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and in
every such case the Issuer, the Trustee and the Owners of the
Bonds shall be restored to their former positions and rights
hereunder respectively, but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right
consequent thereon.
.12. Opportunity of Issuer and Company to Cure Defaults Under
Section 8.01(c); Notice. With regard to any alleged default
concerning which notice is given to the Issuer and the Company
under the provisions of Section 8.01(c), the Issuer hereby grants
the Company full authority for the account of the Issuer to
perform any covenant or obligation alleged in said notice to
constitute a default, in the name and stead of the Issuer with
full power to do any and all things and acts to the same extent
that the Issuer could do and perform any such things and acts and
with power of substitution.
In the event that the Trustee fails to receive Loan
Repayment when due under the Agreement, the Trustee shall
immediately give notice by overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
VIII
THE TRUSTEE
.0. Acceptance of the Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform
said trusts, but only upon and subject to the following express
terms and conditions:
( ) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(a) The Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys,
agents, receivers or employees but shall be answerable for the
conduct of the same in accordance with the standard specified in
(a) above, and shall be entitled to advice of counsel concerning
all matters of trusts hereof and the duties hereunder, and may in
all cases pay such reasonable compensation to all such attorneys,
agents, receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon the
opinion or advice of any attorney (who may be the attorney or
attorneys for the Issuer or the Company if selected or retained
prior to the occurrence of an Event of Default), approved by the
Trustee in the exercise of reasonable care. The Trustee shall not
be responsible for any loss or damage resulting from any action
or non-action in good faith in reliance upon such opinion or
advice.
(b) The Trustee shall not be responsible for any recital
herein, or in the Bonds (except in respect to the certificate of
the Trustee endorsed on the Bonds), or for the recording or re-
recording, filing or re-filing of this Indenture, or any other
instrument required by this Indenture to secure the Bonds, or for
insuring the Project or collecting any insurance moneys, or for
the validity of the execution by the Issuer of this Indenture or
of any supplements hereto or instruments of further assurance, or
for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby, or for the value or
title of the Project or otherwise as to the maintenance of the
security hereof; except that in the event the Trustee enters into
possession of a part or all of the property herein conveyed
pursuant to any provision of this Indenture, it shall use due
diligence in preserving such property; and the Trustee shall not
be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions and agreements aforesaid
as to the condition of the property herein conveyed.
(c) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may
become the Owner of Bonds secured hereby with the same rights
which it would have if it were not the Trustee. To the extent
permitted by law, the Trustee may also receive tenders and
purchase in good faith Bonds from itself, including any
department, affiliate or subsidiary, with like effect as if it
were not the Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person
who at the time of making such request or giving such authority
or consent is the Owner of any Bond, shall be conclusive and
binding upon all future Owners of the same Bond and upon Owners
of Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or as
to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate signed by a representative of the Issuer or an
Authorized Company Representative as sufficient evidence of the
facts therein contained; and, prior to the occurrence of a
default of which the Trustee has been notified as provided in
subsection (h) of this Section 9.01, or of which by said
subsection it is deemed to have notice, the Trustee shall also be
at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to
secure the same. The Trustee may accept a certificate of the
Clerk under the seal of the Issuer to the effect that a
resolution in the form therein set forth has been adopted by said
Issuer as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty,
and it shall not be answerable for other than its negligence or
willful default.
(g) The Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder except failure by
the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article IV hereof or the failure of the
Issuer or the Company to file with the Trustee any document
required by this Indenture or the Agreement to be so filed
subsequent to the issuance of the Bonds, unless the Trustee shall
be specifically notified in writing of such default by the Issuer
or by the Owners of at least twenty-five percent (25%) in
aggregate principal amount of Bonds then Outstanding; and all
notices or other instruments required by this Indenture to be
delivered to the Trustee, must, in order to be effective, be
delivered at the principal office of the Trustee, and in the
absence of such notice so delivered the Trustee may conclusively
assume there is no default except as aforesaid.
(h) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right fully to inspect all books,
papers and records of the Issuer pertaining to the Bonds, and to
take such memoranda from and in regard thereto as may be desired.
(i) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers
or otherwise in respect of the premises.
(j) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be
required, to demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, the release of any property,
or any action whatsoever within the purview of this Indenture,
any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition
to that by the terms hereof required as a condition of such
action by the Trustee, which the Trustee in its discretion may
deem desirable for the purpose of establishing the right of the
Issuer to the authentication of any Bonds, the withdrawal of any
cash, or the taking of any other action by the Trustee.
(k) Before taking any action referred to in this Indenture,
the Trustee may require that a satisfactory indemnity bond be
furnished for the reimbursement of all expenses to which it may
be put and to protect it against all liability, except liability
which is adjudicated to have resulted from its negligence or
willful default by reason of any action so taken.
(l) All moneys received by the Trustee or any Paying Agent
shall, until used or applied or invested as herein provided, be
held in trust for the purposes for which they were received but
need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall
be under any liability for interest on any moneys received
hereunder except such as may be mutually agreed upon.
.1. Fees, Charges and Expenses of Trustee. The Trustee shall
be entitled to payment and reimbursement from the Company for
reasonable fees for its services rendered hereunder and all
advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an Event of Default, but only upon an Event
of Default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of and
redemption premium, if any, and interest on any Bond upon the
Trust Estate for the foregoing fees, charges and expenses
incurred by it respectively.
.2. Notice to Owners of Bonds if Default Occurs. If a default
occurs of which the Trustee is by Section 9.01(h) hereof required
to take notice or if notice of default be given as provided in
Section 9.01(h), then the Trustee shall promptly give written
notice thereof by certified mail or telecopier communication to
each registered Owner of Bonds then Outstanding such notice to
be given on the next business day if the Company defaults on an
installment payment under the Agreement.
.3. Intervention by Trustee. In any judicial proceeding to
which the Issuer is a party and which in the opinion of the
Trustee and its counsel has a substantial bearing on the
interests of the Owners of the Bonds, the Trustee may intervene
on behalf of Owners of the Bonds and shall do so if requested in
writing by the Owners of at least twenty-five per centum (25%) of
the aggregate principal amount of Bonds then Outstanding. The
rights and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
.4. Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it
may be consolidated, or to which it may sell or transfer its
trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it
is a party, shall be and become successor Trustee hereunder and
vested with all of the title to the Trust Estate and all the
trusts, powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing
of any instrument or any further act, deed or conveyance on the
part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, that such successor Trustee
shall have been approved as successor Trustee by the Company in
writing filed with the Issuer and the Trustee.
.5. Resignation by Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by
giving thirty (30) days' written notice to the Issuer and by
registered or certified mail to each registered Owner of Bonds
then Outstanding, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a
successor Trustee pursuant to Section 9.08 hereof. Such notice
to the Issuer may be served personally or sent by registered
mail.
.6. Removal of Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Issuer, and signed by the
Owners of a majority in aggregate principal amount of Bonds then
Outstanding.
.7. Appointment of Successor Trustee; Temporary Trustee. In
case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor
shall be appointed by the Issuer at the direction of the Company.
The Issuer shall give Notice by Publication of such appointment
once in each of two consecutive calendar weeks. If the Issuer
fails to make such appointment promptly, a successor may be
appointed by the Owners of a majority in aggregate principal
amount of Bonds then Outstanding. Every such successor Trustee
appointed pursuant to the provisions of this Section 9.08 shall
be a trust company or bank in good standing having a reported
capital and surplus of not less than $6,000,000, if there be such
an institution willing, qualified and able to accept the trusts
upon reasonable and customary terms.
.8. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer an instrument in writing
accepting such appointment hereunder, and thereupon such
successor, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights,
powers, trusts, duties and obligations of its predecessors; but
such predecessor shall, nevertheless, on the written request of
the Issuer, or of its successor, execute and deliver an
instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee hereunder
to its or his successor. Should any instrument in writing from
the Issuer be required by any successor Trustee for more fully
and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer.
The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this
Article IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the costs thereof.
.9. Successor Trustee as Bond Registrar, Paying Agent,
Custodian of Bond Fund and Rebate Fund. In the event of a change
of Trustee, the Trustee which has resigned or been removed shall
cease to be Bond Registrar, Paying Agent and custodian of the
Rebate Fund and the Bond Fund, and the successor Trustee shall
become such Bond Registrar, Paying Agent and custodian.
.10. Trustee and Issuer Required to Accept Directions and
Actions of Company. Whenever after a reasonable request by the
Company the Issuer shall fail, refuse or neglect to give any
direction to the Trustee or to require the Trustee to take any
action which the Issuer is required to have the Trustee take
pursuant to the provisions of the Agreement or this Indenture,
the Company as agent of the Issuer may give any such direction to
the Trustee or require the Trustee to take any such action, and
the Trustee is hereby irrevocably empowered and directed to
accept such direction from the Company as sufficient for all
purposes of this Indenture. The Company shall have the right as
agent of the Issuer to cause the Trustee to comply with any of
the Trustee's obligations under this Indenture to the same extent
that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer
under this Indenture may create or result in an Event of
Default under this Indenture and the Company, as agent of the
Issuer, may, to the extent permitted by law, perform any and
all acts or take such action as may be necessary for and on
behalf of the Issuer to prevent or correct said Event of
Default and the Trustee shall take or accept such performance
by the Company as performance by the Issuer in such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do
all things and perform all acts provided, and to the extent so
provided, by this Section 9.11.
IX
SUPPLEMENTAL INDENTURES
.0. Supplemental Indentures Not Requiring Consent of Owners.
The Issuer and the Trustee may with the prior consent of the
Company and with an opinion of Bond Counsel to the effect that
such action will not impair the exclusion of the interest on the
Bonds from gross income for purposes of federal income taxation,
but without the consent of, or notice to, any of the Owners of
the Bonds, enter into an indenture or indentures supplemental to
this Indenture as shall not be inconsistent with the terms and
provisions hereof for any one or more of the following purposes:
( ) to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such manner
as shall not in the opinion of the Trustee impair the security
hereof or adversely affect the Owners of the Bonds;
(a) to grant to or confer upon the Trustee for the benefit
of the Owners of the Bonds any additional rights, remedies,
powers or authorities that may lawfully be granted to or
conferred upon the Owners of the Bonds or the Trustee;
(b) to add additional covenants of the Issuer, or to
surrender any right or power herein conferred upon the Issuer;
(c) to subject to this Indenture additional revenues,
properties or collateral; and
(d) to modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939, as amended, or any similar federal statute hereafter in
effect or to permit the qualification of the Bonds for sale under
the securities laws of any of the states of the United States,
and, if they so determine, to add to this Indenture or any
indenture supplemental hereto such other terms, conditions and
provisions as may be permitted by said Trust Indenture Act of
1939 or similar federal statute.
.1. Supplemental Indentures Requiring Consent of Owners.
Exclusive of Supplemental Indentures covered by Section 10.01
hereof and subject to the terms and provisions contained in this
Section 10.02, and not otherwise, the Owners of not less than a
majority in aggregate principal amount of the Bonds then
Outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such other indenture or indentures supplemental hereto
as shall be deemed necessary and desirable by the Trustee for the
purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any indenture supplemental
hereto; provided, however, that nothing in this Section 10.02
contained shall permit, or be construed as permitting (i) a
change in the maturity date of the principal of or the interest
on any Bond issued hereunder, (ii) a reduction in the principal
amount of, or redemption premium on, any Bond or Bonds or the
rate or rates of interest thereon, or (iii) a reduction in the
aggregate principal amount of the Bonds required for consent to
such Supplemental Indenture unless, in each case, Owners of all
Bonds then Outstanding consent to such Supplemental Indenture.
If at any time the Issuer shall request the Trustee
to enter into any such Supplemental Indenture for any of the
purposes of this Section 10.02, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause
Notice By Mail of the proposed execution of such Supplemental
Indenture to be given to the Owners of all Outstanding Bonds.
Such notice shall briefly set forth the nature of the proposed
Supplemental Indenture and shall state that copies thereof are
on file at the principal office of the Trustee for inspection
by all bondholders. If, within sixty (60) days or such longer
period as shall be prescribed by the Issuer following the
mailing of such notice, the Owners of not less than a
majority in aggregate principal amount of the Bonds
Outstanding at the time of the execution of any such
Supplemental Indenture shall have consented to and approved
the execution thereof as herein provided, no Owner of any
Bond shall have any right to object to any of the terms and
provisions contained herein, or the operation thereof, or in
any manner to question the propriety of the execution thereof,
or to enjoin or restrain the Trustee or the Issuer from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such
Supplemental Indenture as in this Section 10.02 permitted and
provided, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and without the necessity
for notation on the Outstanding Bonds.
Anything herein to the contrary notwithstanding, a
Supplemental Indenture under this Article X which affects the
rights of the Company shall not become effective unless and
until the Company shall have consented to the execution and
delivery of such Supplemental Indenture. In this regard, the
Trustee shall cause notice of the proposed execution and
delivery of any such supplemental indenture to be mailed by
certified or registered mail to the Company at least fifteen
(15) days prior to the publication of notice of the proposed
execution of such Supplemental Indenture as provided in this
Section 10.02. The Company shall be deemed to have consented
to the execution and delivery of any such Supplemental
Indenture if the Trustee receives a letter or other instrument
signed by an authorized officer of the Company expressing
consent.
.2. Trustee Authorized to Join in Supplements; Reliance on
Counsel. The Trustee is authorized to join with the Issuer in
the execution and delivery of any Supplemental Indenture
permitted by this Article X and in so doing shall be fully
protected by an opinion of counsel who may be counsel for the
Issuer or the Company that such Supplemental Indenture is so
permitted and has been duly authorized by the Issuer and that all
things necessary to make it a valid and binding Supplemental
Indenture have been done.
X
AMENDMENT OF AGREEMENT
.0. Amendments, etc., to Agreement Not Requiring Consent of
Owners. The Issuer and the Trustee shall, without the consent of
or notice to the Owners of the Bonds, consent to any amendment,
change or modification of the Agreement as may be (i) required by
the provisions of the Agreement or this Indenture, (ii) for the
purpose of curing any ambiguity or formal defect or omission,
(iii) in connection with the Project so as to more precisely
identify the same or substitute or add additional facilities
acquired in accordance with the provisions of the Agreement, or
(iv) in connection with any other change therein which, in the
judgment of the Trustee, is not to the prejudice of the Trustee
or the Owners of the Bonds; provided, however, that as a
condition of such consent, there may be required an opinion of
Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
.1. Amendments, etc., to Agreement Requiring Consent of
Owners. Except for the amendments, changes or modifications as
provided in Section 11.01 hereof, neither the Issuer nor the
Trustee shall consent to any other amendment, change or
modification of the Agreement without publication of notice and
the written approval or consent of the Owners of not less than a
majority in aggregate principal amount of the Bonds at the time
Outstanding given and procured as in this Section 11.02 provided.
If at any time the Issuer and the Company shall request the
consent of the Trustee to any such proposed amendment, change or
modification of the Agreement, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, give Notice
By Mail of such proposed amendment, change or modification in the
same manner as provided by Section 10.02 hereof with respect to
Supplemental Indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are
on file with the Trustee for inspection by all Owners of the
Bonds.
.2. Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel. The Trustee is authorized to join with the
Issuer in the execution and delivery of any amendment permitted
by this Article XI and in so doing shall be fully protected by an
opinion of counsel, who may be counsel for the Issuer or the
Company, that such amendment is so permitted and has been duly
authorized by the Issuer and that all things necessary to make it
a valid and binding agreement have been done.
XI
MISCELLANEOUS
.0. Consents, etc., of Owners of Bonds. Any consent, request,
direction, approval, objection or other instrument required by
this Indenture to be signed and executed by the Owners of the
Bonds may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Owners of the Bonds
in person or by agent appointed in writing. Proof of the
execution of any such consent, request, direction, approval,
objection or other instrument or of the writing appointing any
such agent, if made in the following manner, shall be sufficient
for any of the purposes of this Indenture, and shall be
conclusive in favor of the Trustee with regard to any action
taken by it under such request or other instrument, namely the
fact and date of the execution by any person of any such writing
may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within
such jurisdiction that the person signing such writing
acknowledged before him the execution thereof, or by an affidavit
of any witness to such execution. For all purposes of this
Indenture and of the proceedings for the enforcement hereof,
Ownership of the Bonds shall be proved by the records of the Bond
Registrar.
.1. Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be
implied from this Indenture, or the Bonds, is intended or shall
be construed to give to any person or company other than the
Company, the parties hereto, and the Owners of the Bonds, any
legal or equitable right, remedy or claim under or in respect of
this Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions
and provisions hereof are intended to be and are for the sole and
exclusive benefit of the Company, the parties hereto and the
Owners of the Bonds as herein provided.
.2. Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be illegal, inoperative
or unenforceable, the same shall not affect any other provision
or provisions herein contained or render the same invalid,
inoperative, or unenforceable to any extent whatever.
.3. Notices. Any notice, request, complaint, demand,
communication or other paper shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid, or sent by telegram, addressed
as follows: If to the Issuer, at the Office of the Chancery
Clerk, Post Office Box 449, Port Gibson, Mississippi 39150; if to
the Trustee, at Post Office Box 23100, Jackson, Mississippi 39225-
3100, Attention: Corporate Trust Administration Department; and
if to the Company at 639 Loyola Avenue, New Orleans, Louisiana
70113, Attention: [Treasurer]. A duplicate copy of each notice
required to be given hereunder by either the Issuer or the
Trustee shall also be given to the Company, and a duplicate copy
of each notice required to be given hereunder by the Trustee to
either the Issuer or the Company shall also be given to the
other. The Issuer, the Company and the Trustee may, by notice
given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications
shall be sent.
.4. Trustee as Paying Agent. The Trustee is hereby designated
and agrees to act as Paying Agent for and in respect to the
Bonds.
.5. Payments Due on Sundays and Holidays. In any case where
the date of maturity of interest on or principal of Bonds or the
date fixed for redemption of any Bonds shall be in the city of
payment a Sunday or a legal holiday or a day on which banking
institutions are authorized by law to close, then payment of
interest or principal (and redemption premium, if any) need not
be made on such date but may be made on the next succeeding
business day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no
interest on such payment shall accrue for the period after such
date.
.6. Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
.7. Applicable Provisions of Law. This Indenture shall be
governed by and construed in accordance with the internal laws of
the State.
.8. Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the
scope or intent of any provisions or Sections of this Indenture.
.9. No Liability of Issuer. No breach or violation of any
covenant, agreement or undertaking contained in this Indenture
shall impose any pecuniary liability upon the Issuer or any
charge upon its general credit or against its taxing powers, but
the Issuer shall nonetheless be obligated with respect to, and
liable to the extent of, the Trust Estate specifically pledged
hereunder.
<PAGE>
IN WITNESS WHEREOF, CLAIBORNE COUNTY, MISSISSIPPI, has
caused this Indenture to be executed by the President of its
Board of Supervisors, and its seal to be hereunto affixed,
attested by the Clerk of said Board, and Deposit Guaranty
National Bank, as Trustee, has caused this Indenture to be
executed and its corporate seal to be hereunto affixed and
attested, all by its duly authorized officers, all as of the
date first above written.
CLAIBORNE COUNTY, MISSISSIPPI
By:________________________________
President, Board of
Supervisors
Attest:
_____________________________
Clerk, Board of Supervisors
DEPOSIT GUARANTY NATIONAL BANK,
TRUSTEE
By: ________________________________
Attest:
_____________________________
<PAGE>
EXHIBIT A
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
CLAIBORNE COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
(SYSTEM ENERGY RESOURCES, INC. PROJECT)
SERIES 1995
No. R-1 $44,000,000
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
May 1, 2025 May 1, 1995 179423AJ7
REGISTERED OWNER: CEDE & CO.
PRINCIPAL SUM: FORTY-FOUR MILLION DOLLARS
KNOW ALL MEN BY THESE PRESENTS THAT CLAIBORNE COUNTY, MISSISSIPPI (the
"Issuer"), a body politic and corporate and a political subdivision duly
created and validly existing pursuant to the laws and constitution of the
State of Mississippi (the "State"), for value received, promises to pay,
solely from the source and as hereinafter provided, to the registered owner
named above, or registered assigns, the principal sum specified above on the
maturity date specified above (or earlier as hereinafter referred to) and in
like manner and solely from the same source to pay interest on said sum from
the date determined as described in the Indenture referred to on the reverse
hereof at the rate of seven and thirty one-hundredths per centum (7.30%) per
annum, on May 1, and November 1, of each year commencing November 1, 1995,
until the principal sum is paid or duly provided for. Interest on the Bonds
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Principal of and redemption premium, if any, and interest on this
Bond are payable in lawful money of the United States of America at the
principal corporate trust office of Deposit Guaranty National Bank, One
Deposit Guaranty Plaza, P. O. Box 23100, Jackson, Mississippi 39225-3100, as
paying agent and trustee under the Indenture, or its successor in trust (the
"Trustee"). Interest hereon shall be payable to the person in whose name
this Bond is registered at the close of business on the fifteenth day of
the month preceding each interest payment date (whether or not such date
is a Business Day); such interest shall be paid by clearinghouse check mailed
to the person entitled thereto.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH [ON
THE REVERSE HEREOF] OR [ON PAGES ____ THROUGH ____ HEREOF], WHICH SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH ABOVE THE
EXECUTION AND AUTHENTICATION.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions
and things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required
by law; that the issuance of this Bond and the issue of which it forms a part
do not exceed or violate any constitutional or statutory limitation; and that
provision has been made in the Indenture for the deposit with the Trustee, but
only from the Trust Estate pledged thereunder for the payment of the principal
of and the redemption premium, if any, and interest on this Bond and the
issue of which it forms a part, of moneys sufficient in amount for such
purposes.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate
of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, CLAIBORNE COUNTY, MISSISSIPPI, has caused this Bond
to be executed in its name on its behalf by the manual or facsimile signature
of the President of the Board of Supervisors, its corporate seal or a facsimile
thereof to be hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of the Clerk of the
Board of Supervisors of Claiborne County, Mississippi, all as of this 1st
day of May, 1995.
CLAIBORNE COUNTY, MISSISSIPPI
[SEAL] By: ________________________________
President, Board of Supervisors
ATTEST:
By: ___________________________
Clerk, Board of Supervisors
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds
of the series designated in and issued under the provisions of
the within-mentioned Indenture. A signed original of the Opinion
of Bond Counsel, Watkins Ludlam & Stennis, Jackson, Mississippi,
pertaining to the Bonds is on file with the undersigned.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
DATED:_____________________ By:___________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be printed on all Bonds)
VALIDATION CERTIFICATE
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
I, the undersigned Clerk of
the Board of Supervisors and Chancery Clerk of Claiborne County,
Mississippi, do hereby certify that the within Bond has been
validated and confirmed by Decree of the Chancery Court of
Claiborne County, Mississippi, rendered on the 28th day of April,
1995.
[manual or facsimile signature]
Clerk, Board of Supervisors and
Chancery Clerk of Claiborne County,
Mississippi
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OR SU
PPLEMENTAL PAGE OF THE FORM OF BONDS)
This Bond is one of the
Issuer's Pollution Control Revenue Refunding Bonds (System Energy
Resources, Inc. Project) Series 1995 aggregating $44,000,000 in
principal amount (the "Bonds") issued pursuant to the provisions
of Sections 31-15-21 through 31-15-27, Mississippi Code of 1972,
as amended (the "Act") and the Constitution of the State, for the
purpose of providing funds that, together with other funds to be
made available therefor, will be used to refund the Issuer's
outstanding Pollution Control Revenue Bonds (Middle South Energy,
Inc. Project) Series D (the "Prior Bonds"). The Prior Bonds were
issued on July 24, 1985, 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
approximately six to seven miles northwest of the City of Port
Gibson, Mississippi, which undivided interest was sold by the
Issuer to Middle South Energy, Inc., now known as System Energy
Resources, Inc. (the "Company") pursuant to an Installment Sale
Agreement between the Issuer and the Company dated as of June 15,
1985; the Company is the owner of the Project; Entergy
Operations, Inc., an affiliate of the Company, operates the
Facilities and the Plant. The Prior Bonds are refunded with the
proceeds of the Bonds and other funds provided by the Company,
pursuant to an Amended and Restated Installment Sale Agreement
between the Issuer and the Company dated as of May 1, 1995 (the
"Agreement"). The Bonds are issued under and are equally and
ratably secured by and entitled to the protection of a Trust
Indenture dated as of even date of the Agreement (the
"Indenture") from the Issuer to the Trustee. Reference is hereby
made to the Indenture for a description of the rights, limitation
of rights, duties and obligations of the Issuer, Trustee, Paying
Agent and the Owners of the Bonds. Capitalized terms used herein
not otherwise defined shall have the meaning ascribed to such
terms in the Indenture.
The Bonds are issuable as
fully registered Bonds in denominations of $5,000 or any
integral multiple thereof. Bonds, upon surrender thereof at the
principal office of the Trustee, together with an assignment duly
executed by the registered Owner or his attorney or legal
representative in such form as shall be satisfactory to the
Trustee, may, at the option of the registered Owner thereof, be
exchanged for an equal aggregate principal amount of Bonds, of
any denomination or denominations authorized by the Indenture,
and in the same form as the Bonds surrendered for exchange.
The Bonds are non-callable for
redemption prior to May 1, 2000. Thereafter, the Bonds are
subject to optional redemption by the Issuer, at the direction of
the Company, prior to maturity in whole or in part, in such
manner as the Trustee may determine, at any time on or after May
1, 2000, at the redemption prices (expressed as percentages of
principal amount) set forth in the table below plus accrued
interest to the redemption date:
Optional
Redemption
Redemption Period Price
May 1, 2000 through April 30, 2001...... 102%
May 1, 2001 through April 30, 2002...... 101%
May 1, 2002 and thereafter.............. 100%
The Bonds also shall be
subject to optional redemption by the Issuer, at the
direction of the Company, in whole but not in part, at any
time, at a redemption price equal to the principal amount
plus accrued interest to the redemption date if:
(i) the Company shall
have determined that the continued operation of the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) the Company shall
have determined that the continued operation of the Facilities is
impracticable, uneconomical or undesirable due to (A) the
imposition of taxes, other than ad valorem taxes currently levied
upon privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with respect
to the Facilities or the operation thereof, (B) changes in
technology, in environmental standards or legal requirements or
in the economic availability of materials, supplies, equipment or
labor or (C) destruction of or damage to all or part of the
Facilities;
(iii) all or
substantially all of the Facilities or the Plant shall have been
condemned or taken by eminent domain; or
(iv) the operation of the
Facilities or the Plant shall have been enjoined or shall have
otherwise been prohibited by an order, decree, rule or regulation
of any court or of any federal, state or local regulatory body,
administrative agency or other governmental body.
The Bonds shall also be
subject to optional redemption by the Issuer at the direction of
the Company, in whole but not in part, at any time prior to May
1, 2000, at a redemption price equal to 102% of the principal
amount being redeemed plus accrued interest to the redemption
date, if the Company shall have consolidated with or merged with
or into another corporation, or sold or otherwise transferred all
or substantially all of its assets.
In addition, the Bonds will be
subject to mandatory redemption on any date prior to their
scheduled maturity, and shall be redeemed prior to their
scheduled maturity no later than one hundred eighty (180) days
after a final determination or final action referred to below, at
a redemption price equal to the principal amount thereof plus
accrued interest thereon to the date of redemption, but without
premium, if, as a result of any final determination of a federal
court or final action of the Internal Revenue Service, in a
proceeding in which the Company has received timely notice of and
has had an opportunity to participate at its expense, it is
determined that as a result of the failure of the Company to
observe any covenant, agreement or representation in the
Agreement or the Issuer to observe any covenant, agreement or
representation in the Indenture, the interest payable on the
Bonds is not excludable from gross income of an Owner of a Bond
(other than an Owner who is a "substantial user" of the Project
or "related person" within the meaning of Section 147 of the Code
and applicable regulations promulgated thereunder) under Section
103 of the Code. The Bonds shall be redeemed, whether in whole
or in part, in such principal amount that the interest payable on
the Bonds remaining Outstanding after such redemption would not
be included in the gross income of an Owner thereof (other than
an Owner who is a "substantial user" or "related person" within
the meaning of Section 147(a) of the Code and applicable
regulations promulgated thereunder).
If the Bonds cease to be held
in book entry form and less than all of the Bonds shall be called
for redemption, the particular Bonds or portions of registered
Bonds to be redeemed shall be selected by the Trustee by lot or
in such other manner as the Trustee in its discretion may
determine; provided, however, that the portion of any registered
Bond to be redeemed shall be in the principal amount of $5,000 or
some multiple thereof, and that, in selecting Bonds for
redemption, the Trustee shall treat each Bond as representing
that number of Bonds which is obtained by dividing the principal
amount of such registered Bond by $5,000.
At least thirty (30) days but
not more than sixty (60) days before the redemption date of any
Bonds the Trustee shall cause a notice of any such redemption,
either in whole or in part, to be mailed, postage prepaid, to all
registered Owners of Bonds to be redeemed in whole or in part at
their addresses as they appear on the registration books of the
Trustee, but failure so to mail any such notice shall not affect
the validity of the proceedings for such redemption. Each such
notice shall set forth the date fixed for redemption, the
redemption price to be paid and, if less than all of the Bonds
then Outstanding shall be called for redemption, the distinctive
numbers and letters, if any, of such Bonds to be redeemed and, in
the case of Bonds to be redeemed in part only, the portion of the
principal amount thereof to be redeemed. In case any Bond is to
be redeemed in part only, the notice of redemption which relates
to such Bond shall state also that on or after the redemption
date, upon surrender of such Bond, a new Bond in principal amount
equal to the unredeemed portion of such Bond will be issued.
If at the time of giving of
notice of an optional redemption there shall not have been
deposited with the Trustee moneys sufficient to redeem all the
Bonds called for redemption, such notice may state that it is
conditioned upon the deposit of the redemption moneys with the
Trustee not later than the opening of business on the redemption
date, and such notice shall be of no effect unless such moneys
are so deposited. If such moneys are not so deposited, the Bonds
shall not be redeemed and the Trustee shall, in the manner in
which notice of redemption was given, give notice that such
moneys were not deposited.
On the date so designated for
redemption, moneys for payment of the redemption price and
accrued interest to the redemption date being held by the Trustee
in trust for the Owners of the Bonds or portions thereof to be
redeemed, the Bonds or portions of Bonds so called for redemption
shall become and be due and payable at the redemption price
provided for redemption of such Bonds or portions of Bonds on
such date, interest on the Bonds or portions of Bonds so called
for redemption shall cease to accrue, such Bonds or portions of
Bonds shall cease to be entitled to any benefit or security under
the Indenture, and the Owners of such Bonds or portions of Bonds
shall have no rights in respect thereof except to receive payment
of the redemption price thereof and accrued interest to the
redemption date and, to the extent provided in the Indenture, to
receive Bonds for any unredeemed portions of Bonds.
This Bond and the issue of
which it forms a part are limited obligations of the Issuer. The
principal of and the premium, if any, and interest on the Bonds
are payable solely out of and secured by an irrevocable pledge of
the Revenues and Receipts of the Issuer under the Agreement and
any other sums which may be received by the Issuer from or in
connection with the issuance of the Bonds and the sale of the
Project to the Company that constitute a part of the Trust Estate
under the Indenture. The Issuer shall not be obligated to pay
the principal of or the premium, if any, or the interest on the
Bonds or other costs incident thereto from any other source. The
Bonds and the premium, if any, and interest thereon shall never
constitute an indebtedness of the Issuer within the meaning of
any constitutional provision or statutory limitation of the State
and shall never constitute nor give rise to a pecuniary liability
of the Issuer or a charge against the general credit or taxing
powers of the Issuer, the State or any political subdivision
thereof. The Indenture provides that moneys sufficient for the
prompt payment when due of the principal of and premium, if any,
and interest on the Bonds are to be paid to the Trustee for the
account of the Issuer and deposited in trust in the Bond Fund
described therein, and that the Company's Loan Repayment under
the Agreement and the Revenues and Receipts of the Issuer under
the Agreement have been duly assigned to the Trustee to secure
payment of the principal of, and the premium, if any, and
interest on the Bonds issued under the Indenture.
The Indenture prescribes the
manner in which it may be discharged, including a provision that
the Bonds shall be deemed to be paid if Governmental Obligations,
as defined therein, maturing as to principal and interest in such
amounts and at such times as will provide sufficient funds to pay
the principal of and premium, if any, and interest on the Bonds
and all fees and expenses of the Trustee and any Paying Agent,
shall have been deposited with the Trustee, after which, and upon
the giving of notice in accordance with the Indenture, the Bonds
shall no longer be secured by or be entitled to the benefits of
the Indenture, except for any such payment from such Governmental
Obligations. In certain events, on the conditions, in the manner
and with the effect set forth in the Indenture, the principal of
all of the Bonds issued under the Indenture and then Outstanding,
together with interest accrued thereon, may become or may be
declared due and payable before the stated maturity thereof,
subject to rescission of acceleration as provided in the
Indenture.
The Owner of this Bond shall
have no right to institute any action for the enforcement of the
Indenture or for the execution of any trust thereof, except as
provided in the Indenture. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Issuer and the
rights of the Owners of the Bonds at any time by the Issuer and
the Trustee without the consent of the Owners of the Bonds, and
in certain other cases such modifications may be made only with
the consent of the Owners of not less than a majority in
aggregate principal amount of the Bonds at the time Outstanding,
as set forth in the Indenture. Any such consent or waiver by the
Owner of this Bond shall be conclusive and binding upon such
Owners of this Bond and of any Bond issued upon the exchange of
this Bond whether or not notation of such consent or waiver is
made upon this Bond. The Indenture also contains provisions
permitting the Trustee to waive certain past defaults thereunder.
This Bond is transferable by
the registered Owner hereof in person or by his attorney or legal
representative at the principal corporate trust office of the
Trustee, but only in the manner and subject to the limitations
and conditions provided in the Indenture and upon surrender and
cancellation of this Bond. Upon any such transfer the Issuer
shall execute and the Trustee shall authenticate and deliver in
exchange for this Bond a new registered Bond or Bonds, registered
in the name of the transferee, of authorized denominations in
aggregate principal amount equal to the principal amount of this
Bond.
No covenant or agreement
contained in this Bond or the Indenture shall be deemed to be
a covenant or agreement of any member of the Governing Body or
any other officer or employee of the Issuer in his individual
capacity, and neither the members of the Governing Body of the
Issuer nor any official executing this Bond shall be liable
personally on this Bond or be subject to any personal liability
or accountability by reason of issuance of this Bond. This Bond
is issued with the intent that the internal laws of the State
shall govern its construction.
<PAGE>
[FORM OF BOND COUNSEL OPINION]
[FORM OF ASSIGNMENT]
(To be endorsed on all Bonds)
ASSIGNMENT
For value received, ________________________________________
hereby sell(s) and transfer(s) unto______________________________
_________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
_______________________________________________________
(Please print or typewrite Name and
Address, including Zip Code, of Assignee)
_________________________________________________________________
the within Bond and hereby irrevocably constitute(s) and appoint
(s) ______________________________________________________
attorney, with full power of substitution in the premises, to tr
ansfer this Bond on the books of the within mentioned Registrar.
DATED:________________________
Signature Guaranteed:
_______________________________ ______________________________
NOTICE: Signature(s) must be NOTE: The name signed to this
guaranteed by a member firm of assignment must correspond with
the New York Stock Exchange or the name of the payee as it
a commercial bank or trust appears upon the face of the
company within Certificate in every
particular, without alteration,
enlargement or change whatsoever
[END OF FORM OF BOND]
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
Personally appeared before me,
the undersigned authority in and for the said county and state,
on this ____ day of May, 1995 within my jurisdiction, the within
named Edward Carter, Sr., and Frank Wilson, duly identified
before me, who acknowledged that they are President and Clerk,
respectively, of the Board of Supervisors of Claiborne County,
Mississippi, a county, and that for and on behalf of said Issuer,
and as its act and deed, they executed and sealed the above and
foregoing instrument, after first having been duly authorized by
said Issuer so to do.
___________________________________
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF HINDS
Personally appeared before me,
the undersigned authority in and for the said county and state,
on this ____ day of May, 1995, within my jurisdiction, the within
named ____________________________ and
_____________________________, duly identified before me, who
acknowledged that they are ____________________________ and
_____________________________, respectively, of Deposit Guaranty
National Bank, and that for and on behalf of said corporation,
and as its act and deed, they executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
___________________________________
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
Exhibit B-6(a)
CLAIBORNE COUNTY, MISSISSIPPI
AND
SYSTEM ENERGY RESOURCES, INC.
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of May 1, 1995
__________________
Relating To
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1995
Prepared by:
John Hampton Stennis
Watkins Ludlam & Stennis
633 North State Street
Jackson, MS 39202
(601) 949-4949
<PAGE>
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Installment Sale Agreement.)
Page
PARTIES 1
PREAMBLES 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 2
ARTICLE II
REPRESENTATIONS
SECTION 2.01. Representations and Warranties
of the Issuer 7
SECTION 2.02. Representations and Warranties
of the Company 7
ARTICLE III
THE PROJECT
SECTION 3.01. Construction and Equipping of
the Facilities and the Project 8
SECTION 3.02. Sale of the Project Confirmed 8
SECTION 3.03. Maintenance of Project 8
SECTION 3.04. Insurance Required 9
ARTICLE IV
ISSUANCE OF BONDS
SECTION 4.01. Issuance of the Bonds 9
SECTION 4.02. Disposition of Bond Proceeds 9
ARTICLE V
LOAN OF BOND PROCEEDS; PAYMENTS BY COMPANY
SECTION 5.01. Loan of Bonds Proceeds 9
SECTION 5.02. Repayment of Loan 9
SECTION 5.03. Payments Assigned; Obligation Absolute 10
SECTION 5.04. Payment of Expenses and Sums Required
for Payment of Prior Bonds 11
SECTION 5.05. Indemnification 11
SECTION 5.06. Payment of Taxes; Discharge of Liens 11
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.01. Maintenance of Corporate Existence 12
SECTION 6.02. Permits or Licenses 12
SECTION 6.03. Issuer's and Trustee's Access to Records 12
SECTION 6.04. Arbitrage Covenant 12
SECTION 6.05. Use of Facilities 13
SECTION 6.06. Tax Exempt Status of Bonds 13
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.01. By the Company 13
SECTION 7.02. Limitation 14
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default 14
SECTION 8.02. Force Majeure 15
SECTION 8.03. Remedies on Default 15
SECTION 8.04. No Remedy Exclusive 16
SECTION 8.05. Agreement to Pay Attorneys' Fees
and Expenses 16
SECTION 8.06. Waiver of Breach 16
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
SECTION 9.01. Redemption of Bonds 16
SECTION 9.02. Purchase of Bonds 17
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
SECTION 10.01. Recording and Filing 17
SECTION 10.02. Photocopies and Reproductions 17
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices 17
SECTION 11.02. Severability 18
SECTION 11.03. Execution of Counterparts 18
SECTION 11.04. Amounts Remaining in Bond Fund 18
SECTION 11.05. Amendments, Changes and Modifications 18
SECTION 11.06. Governing Law 18
SECTION 11.07. Authorized Company Representatives 18
SECTION 11.08. Term of the Agreement 18
SECTION 11.09. No Personal Liability 18
SECTION 11.10. Parties in Interest 19
SECTION 11.11. Captions 19
SIGNATURES AND SEALS 20
EXHIBIT A
ACKNOWLEDGMENTS
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
May 1, 1995, by and between Claiborne County, Mississippi, a public
body corporate and politic and a political subdivision of the State
of Mississippi (the "Issuer"), and System Energy Resources, Inc., a
corporation organized and existing under the laws of the State of
Arkansas, duly qualified to do business as a corporation in the
State of Mississippi (the "Company").
WITNESSETH:
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
WHEREAS, pursuant to and in accordance with the provisions of
the Pollution Control Act, the Issuer has heretofore on July 24,
1985, issued $44,000,000 principal amount of Claiborne County,
Mississippi, Pollution Control Revenue Bonds (Middle South Energy,
Inc. Project) Series D (the "Prior Bonds"), pursuant to an
Indenture of Trust dated as of June 15, 1985, between the Issuer
and Deposit Guaranty National Bank, as trustee (the "Prior
Indenture"); $44,000,000 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 June 15, 1985, 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 the
Facilities 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 "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 1995
in the aggregate principal amount of $44,000,000 (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, the Issuer and the Company desire to confirm the sale
of the Project by the Issuer to the Company to effect the refunding
of the Prior Bonds by the issuance of the Bonds and the lending of
the principal proceeds thereof by the Issuer to the Company for
such purpose; and
WHEREAS, the Bonds, the Trustee's Certificate of
Authentication and Clerk's Validation Certificate are to be in
substantially the form set out in Exhibit A to the Indenture, with
appropriate variations, omissions and insertions as permitted or
required by the Indenture; and
WHEREAS, the Issuer has received all authorizations, approvals
and consents required to be obtained prior to the issuance of the
Bonds; and
WHEREAS, the Company has received all authorizations,
approvals and consents required to be obtained prior to its entry
into this Agreement; and
WHEREAS, the Issuer and the Company desire to amend and
restate the Prior Agreement in its entirety and each of its
provisions by the Amended and Restated Installment Sale Agreement
so as to include provision for the lending of the proceeds of the
Bonds to the Company to effect the refunding of the Prior Bonds;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
DEFINITIONS
.0. 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:
"Act" shall mean Sections 31-15-21 through 31-15-27,
Mississippi Code of 1972, as amended.
"Administration Expenses" shall mean the reasonable
expenses incurred by the Issuer with respect to the Agreement, the
Indenture and any transaction or event contemplated by the
Agreement or the Indenture, including the fee of its counsel and
the compensation and reimbursement of expenses and advances payable
to the Trustee, including its compensation and expenses as Paying
Agent and Bond Registrar.
"Agreement" shall mean this Amended and Restated
Installment Sale Agreement between the Issuer and the Company,
relating to the Project, pursuant to which the Issuer shall lend
the principal proceeds of the Bonds to the Company to be used to
refund the Prior Bonds, and any and all modifications, alterations,
amendments and supplements thereto.
"Authorized Company Representative" shall mean each
person at the time designated to act on behalf of the Company by
written certificate furnished to the Issuer and the Trustee
containing the specimen signature of such person and signed on
behalf of the Company by its President, any Vice President, its
Treasurer or its Secretary together with any Assistant Secretary.
"Board of Supervisors" shall mean the Board of
Supervisors of Claiborne County, Mississippi, the governing body of
the Issuer.
"Bond Counsel" shall mean any firm of nationally
recognized bond counsel selected by the Company and acceptable to
the Trustee.
"Bond Fund" shall mean the fund created by Section 5.02
of the Indenture.
"Bond or Bonds" shall mean the $44,000,000 in aggregate
principal amount of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series 1995
authorized to be issued under the Indenture.
"Bond Registrar" shall mean the registrar appointed in
accordance with Section 2.05 of the Indenture. "Principal Office"
of the Bond Registrar shall mean the office thereof designated in
writing to the Issuer and the Trustee.
"Clerk" shall mean the Clerk of the Governing Body.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Each reference to a section of the Code herein shall be
deemed to include the Internal Revenue Code of 1954, as amended and
in effect prior to enactment of the Tax Reform Act of 1986, and the
United States Treasury Regulations proposed or adopted thereunder,
as the same may be in effect from time to time, to the extent the
same are applicable to the Bonds or the use of proceeds thereof,
unless the context clearly requires otherwise.
"Company" shall mean System Energy Resources, Inc., a
corporation organized and existing under the laws of the State of
Arkansas and duly qualified to do business as a foreign corporation
in the State of Mississippi, its successors and their assigns.
"Event of Default" shall mean any event of default
specified in Section 8.01 hereof.
"Facilities" shall mean the real and personal properties,
facilities, machinery and equipment currently existing at the Plant
which are described in Exhibit A to this Agreement, as revised from
time to time to reflect any changes therein, additions thereto,
substitutions therefor and deletions therefrom permitted by the
terms of this Agreement.
"Governing Body" shall mean the Board of Supervisors of
the Issuer.
"Government Obligations" shall mean (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" shall mean the Indenture of Trust, dated as of
May 1, 1995, between the Issuer and the Trustee, and any and all
modifications, alterations, amendments and supplements thereto.
"Investment Securities" shall mean any of the following
obligations or securities which may be lawfully acquired under the
laws of the State of Mississippi on which neither the Company nor
the Issuer nor any of their respective affiliates or subsidiaries
is the obligor, contingently or otherwise, (a) Government
Obligations; (b) interest bearing deposit accounts (which may be
represented by certificates of deposit) in national, state or
foreign banks (which may include the Trustee, the Paying Agent and
the Bond Registrar) having a combined capital and surplus of not
less than $50,000,000; (c) bankers' acceptances drawn on and
accepted by commercial banks (which may include the Trustee, the
Paying Agent and the Bond Registrar) having a combined capital and
surplus of not less than $10,000,000; (d)(i) direct obligations of,
(ii) obligations the principal of and interest on which are
unconditionally guaranteed by, and (iii) any other obligations, the
interest on which is excluded from gross income for purposes of
federal income taxation issued by, any State of the United States
of America, the District of Columbia or the Commonwealth of Puerto
Rico, or any political subdivision, agency, authority or other
instrumentality of any of the foregoing, which, in any case, are
rated by a nationally recognized rating agency in any of its three
highest Rating Categories; (e) obligations of any agency or
instrumentality of the United States of America; (f) commercial or
finance company paper which is rated by a nationally recognized
rating agency in any of its three highest Rating Categories; and
(g) corporate debt securities issued by corporations having debt
securities rated by a nationally recognized rating agency in any of
its three highest Rating Categories.
"Issuer" shall mean Claiborne County, Mississippi, a
political subdivision organized and existing under the Constitution
and laws of the State of Mississippi, its successors and their
assigns.
"Loan Repayment" shall mean the payments required to be
made by the Company pursuant to Section 5.02 of this Agreement.
"Notice by Mail" or "notice" of any action or condition
"by Mail" shall mean a written notice meeting the requirements of
the Indenture mailed by first-class mail to the Owners of specified
registered Bonds, at the addresses shown in the registration books
maintained pursuant to Section 2.05 of the Indenture.
"Notice by Publication" or "notice" of any action or condi
tion "by Publication" shall mean publication of a notice meeting
the requirements of the Indenture in a newspaper or financial
journal of general circulation in The City of New York, New York,
which carries financial news, is printed in the English language
and is customarily published on each business day; provided,
however, that any successive weekly or monthly publication of
notice required hereunder may be made, unless otherwise expressly
provided herein, on the same or different days of the week and in
the same or different newspapers or financial journals; and
provided, further, that if, because of the temporary or permanent
suspension of the publication or general circulation of any
newspaper or financial journal or for any other reason, it is
impossible or impracticable to publish such notice in the manner
herein described, then such publication in lieu thereof as shall be
made with the approval of the Trustee (or, if there be no trustee
hereunder, the Issuer) shall constitute a sufficient publication of
such notice.
"Outstanding," when used in reference to the Bonds shall
mean, as on any particular date, the aggregate of all Bonds
authenticated and delivered under the Indenture except:
(a) those cancelled on or prior to such date or delivered
to or acquired by the Trustee on or prior to such date for
cancellation;
(b) those deemed to be paid in accordance with Article VII
of the Indenture; and
(c) those in lieu of or in exchange or substitution for
which other Bonds shall have been authenticated and delivered
pursuant to the Indenture, unless proof satisfactory to the Trustee
and the Company is presented that such Bond is held by a bona fide
holder in due course.
"Owner" shall mean the person, which may be the Company,
in whose name any Bond is registered upon the registration books
maintained pursuant to Section 2.05 of the Indenture.
"Paying Agent" shall mean the Trustee. "Principal Office
of the Paying Agent" shall mean the principal office of the
Trustee.
"Plant" shall mean the Grand Gulf Nuclear Station located
within 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.
"President" shall mean the President of the Governing
Body.
"Project" shall mean the undivided 90% interest in the
Facilities owned by the Company.
"Rating Category" shall mean a generic securities rating
category, without regard to any refinement or gradation of such
rating category by a numerical modifier or otherwise.
"Revenues and Receipts of the Issuer under the Agreement"
shall mean all moneys assigned to and paid or payable to the
Trustee, for the account of the Issuer, including the Loan
Repayment and any other payments pursuant to Section 9.01 of this
Agreement, and all receipts of the Trustee which, under the
provisions of the Indenture, reduce the amount of such payments.
"State" shall mean the State of Mississippi.
"Supplemental Indenture" shall mean any indenture of the
Issuer modifying, altering, amending, supplementing or confirming
the Indenture for any purpose, in accordance with the terms of the
Indenture.
"Trust Estate" shall mean at any particular time all
right, title and interest of the Issuer in and to: (a) this
Agreement (except its rights under Sections 5.04, 5.05, 5.06, 6.03
and 8.05 hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications thereunder), including without limitation the
Revenues and Receipts of the Issuer under the Agreement; and
(b) all moneys and obligations (other than Bonds) which at such
time are deposited or are required to be deposited with, or are
held or are required to be held by or on behalf of, the Trustee in
trust under any of the provisions of the Indenture, including,
without limitation, all amounts, deposits or securities and titles
and interests which at such time are subject to the lien of the
Indenture, except for moneys or obligations deposited with or paid
to the Trustee for the redemption or payment of Bonds which are
deemed to have been paid in accordance with Article VII of the
Indenture and the Rebate Fund created under Section 5.09 of the
Indenture.
"Trustee" shall mean Deposit Guaranty National Bank,
Jackson, Mississippi, as trustee under the Indenture, its suc
cessors in trust and their assigns.
I
REPRESENTATIONS
.0. 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:
( ) The Issuer is a political subdivision of the State of
Mississippi. Under the provisions of the Pollution Control Act and
the Act, the Issuer has the power to enter into the transactions
contemplated by this Agreement and to carry out its obligations
hereunder. The Issuer is duly authorized to execute and deliver
this Agreement. The Issuer agrees that it will do or cause to be
done all things necessary to preserve and keep in full force and
effect its existence.
(a) The Issuer through issuance of the Prior Bonds provided
funds for the acquiring, constructing, installing and equipping of
the Project, and has sold the Project to the Company, which sale is
hereby confirmed.
(b) The Issuer will, upon the request and at the expense of
the Company, cause the execution and delivery from time to time to
the Company of such further instruments of conveyance as the
Company deems to be necessary to effect or evidence the conveyance
to the Company of all of its right, title and interest in the
Project.
(c) The Issuer has authorized the issuance of the Bonds on
the terms set forth in the Indenture for the purpose of providing
funds which, together with other funds available therefor to be
provided by the Company, will be used to refund the Prior Bonds.
(d) The Issuer has not assigned, and will not, except as
otherwise required by mandatory provisions of law, assign its
interest in this Agreement other than to secure the Bonds.
.1. Representations and Warranties of the Company. The
Company makes the following representations and warranties as the
basis for the undertakings on the part of the Issuer herein
contained:
( ) The Company is a corporation duly incorporated and in good
standing under the laws of the State of Arkansas, and is qualified
to do business in the State of Mississippi, is not in violation of
any provision of its Amended and Restated Articles of
Incorporation, or its Bylaws, as amended, 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.
(a) The Facilities constitute a pollution control project of
the type authorized and permitted by the Pollution Control Act.
(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.
(c) 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.
(d) The Bureau of Pollution Control, Mississippi Department of
Natural Resources, in 1984 found and certified that the Facilities
are necessary and that the design thereof will result in the
elimination, mitigation and/or prevention of air and water
pollution, and did certify that the Facilities, as designed, are in
furtherance of the purpose of abating and controlling atmospheric
pollutants and contaminants or water pollution.
(e) The statements of fact and representations made by the
Company in the Company's certificate in connection with the
determination of the tax-exempt status of the interest on the Bonds
are true and correct in all material respects.
II
THE PROJECT
.0. Construction and Equipping of the Facilities and the
Project. The Company represents that the Facilities and the
Project have been acquired, constructed, installed and equipped by
the Company in order to effectuate the purposes of the Pollution
Control Act; the Issuer makes no representation or warranty with
respect to the Facilities or Project or their suitability for any
purpose.
.1. Sale of the Project Confirmed. The Issuer confirms that
pursuant to the Prior Agreement it has conveyed and vested in the
Company all of the right, title and interest of the Issuer in the
Project.
.2. Maintenance of Project. The Company agrees that it shall,
at its expense, so long as the Company is the owner of the Project
and the Plant is in operation, cause the Project, and every element
and unit thereof, to be maintained, preserved and kept in good
repair, working order and condition, and from time to time to cause
all needful and proper repairs, replacements, additions,
betterments and improvements to be made thereto; provided, however,
that the Company may discontinue the operation of, or reduce the
capacity of, the Project, or any element or unit thereof, if, in
the judgment of the Company, any such action is necessary or
desirable in the conduct of the business of the Company, or if the
Company is ordered so to do by any regulatory authority having
jurisdiction in the premises, or if the Company intends to sell or
dispose of the same and within a reasonable time shall endeavor to
effectuate such sale.
The Company may at its own expense cause substitutions,
modifications and improvements to be made to the Facilities from
time to time as it, in its discretion, may deem to be desirable for
its uses and purposes, which substitutions, modifications and
improvements shall be included under the terms of this Agreement as
part of the Facilities.
.3. Insurance Required. The Company agrees that the Project
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 other 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 Project and such shall be paid directly to the
Company.
III
ISSUANCE OF BONDS
.0. Issuance of the Bonds. The Issuer shall issue the Bonds
under and in accordance with the Indenture, subject to the
provisions of any bond purchase agreement between the Issuer and
the original purchaser or purchasers of the Bonds. The Company
hereby approves the issuance of the Bonds and all terms and
conditions thereof.
.1. Disposition of Bond Proceeds. The proceeds of the
issuance and sale of the Bonds, other than accrued interest, if
any, paid by the initial purchaser or purchasers thereof, shall be
deposited into the Bond Fund as defined in and established under
the Prior Indenture for the Prior Bonds; such deposit shall
constitute a loan of such principal proceeds to the Company. Any
accrued interest shall be deposited into the Bond Fund, in
accordance with the provisions of the Indenture.
IV
LOAN OF BOND PROCEEDS; PAYMENTS
BY COMPANY
.0. Loan of Bond Proceeds. Concurrently with the sale and
delivery of the Bonds, the Issuer covenants and agrees that it
will, upon the terms and conditions in this Agreement, lend to the
Company an amount equal to the proceeds (other than accrued
interest) of the Bonds. Pursuant to said covenant and agreement,
the Issuer will issue the Bonds upon the terms and conditions
contained in this Agreement and the Indenture and will cause the
Bond proceeds to be applied as provided in Article IV hereof.
.1. Repayment of Loan. On or before 10:00 a.m. Central
Standard Time on any date that principal of or interest on the
Bonds is due as set forth in the Indenture, or 10:00 a.m. Central
Standard Time on any date fixed for the unconditional redemption of
any or all of the Bonds pursuant to the Indenture, the Company
covenants and agrees to pay or to cause to be paid in lawful money
of the United States of America to the Trustee for deposit in the
Bond Fund, as a repayment of the loan made to the Company pursuant
to Section 5.01 hereof, a sum equal to the amount payable on such
payment date as principal (whether at maturity, upon redemption,
upon acceleration or otherwise) of and redemption premium, if any,
and interest on the Bonds as provided in the Indenture. Each
payment made pursuant to this Section shall be made in immediately
available funds at the principal corporate trust office of the
Trustee.
In the event that the payment of the principal of and ac
crued interest on the Bonds is accelerated under Section 8.02 of
the Indenture, the Company covenants and agrees to pay, or cause to
be paid, to the Trustee as provided above a sum equal to all the
principal of and interest on the Bonds then Outstanding.
Each payment pursuant to this Section shall at all times
be sufficient to pay the amount of principal (whether at maturity,
upon redemption, upon acceleration or otherwise) of and redemption
premium, if any, and interest payable on the Bonds on the date that
such payment is due; provided that the obligation of the Company to
make any payment of the principal of or premium, if any, and
interest on the Bonds, whether at maturity, upon redemption, upon
acceleration or otherwise, shall be reduced by the amount of any
reduction under the Indenture of the amount of the corresponding
payment required to be made by the Issuer thereunder in respect of
the principal of or redemption premium, if any, and interest on the
Bonds.
.2. Payments Assigned; Obligation Absolute. It is understood
and agreed that all Loan Repayments to be made by the Company are,
by the Indenture, to be pledged by the Issuer to the Trustee, and
that all rights and interest of the Issuer hereunder (except for
the Issuer's rights under Sections 5.04, 5.05, 5.06, 6.03 and 8.05
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder) are to be pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make the Loan
Repayments 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 Loan Repayments shall continue to be
payable at the times and in the amounts specified herein, whether
or not the Facilities or the Plant, 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 that there shall be no abatement of or
diminution in any such payments by reason thereof, whether or not
the Facilities or the Plant 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 the Plant, or for any other
reason.
.3. Payment of Expenses and Sums Required for Payment of Prior
Bonds. The Company shall pay, or cause to be paid, all of the
Administration Expenses of the Issuer, the payment of the
compensation and the reimbursement of expenses and advances of the
Trustee, any Paying Agent, and the Bond Registrar to be made
directly to such entity. The Company shall pay, on or prior to the
redemption date for the Prior Bonds, directly to the Trustee for
the Prior Bonds for deposit in the Bond Fund as defined in and
created under the Prior Indenture, funds sufficient, together with
other funds available therefor, 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
redemption.
.4. Indemnification. The Company will indemnify the Issuer and
the Trustee against claims arising out of ownership and operation
of the Project. The Company will also pay and discharge and will
indemnify and hold harmless the Issuer from any lien or charge upon
payments by the Company to the Issuer hereunder. If any such claim
is asserted, or any such lien or charge upon payments, or any such
taxes, assessments, impositions or other charges, are sought to be
imposed, the Issuer or the Trustee, as the case may be, will give
prompt notice to the Company, and the Company shall have the sole
right and duty to assume, and will assume, the defense thereof,
with full power to litigate, compromise or settle the same in its
sole discretion.
Under this Section 5.05, 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.
.5. Payment of Taxes; Discharge of Liens. The Company shall:
(a) pay, or make provision for payment of, all lawful taxes and
assessments, including income, profits, property or excise taxes,
if any, or other county, municipal or governmental charges, levied
or assessed by any federal, state, county or municipal government
or political body upon the Issuer with respect to the Facilities or
any part thereof or upon any amounts payable hereunder; and (b) pay
or cause to be satisfied and discharged or make adequate provision
to satisfy and discharge, within sixty (60) days after the same
shall accrue, any lien or charge upon any amounts payable
hereunder, and all lawful claims or demands for labor, materials,
supplies or other charges which, if unpaid, might be or become a
lien upon such amounts; provided that if the Company shall first
notify the Issuer and the Trustee of its intention so to do, the
Company may in good faith contest any such lien or charge or claims
or demands in appropriate legal proceedings, and in such event may
permit the items so contested to remain undischarged and
unsatisfied during the period of such contest and any appeal
therefrom, unless the Issuer or the Trustee shall notify the
Company in writing that, in the opinion of counsel to the Issuer or
the Trustee, by nonpayment of any such items the lien of the
Indenture as to the amounts payable hereunder will be materially
endangered, in which event the Company shall promptly pay and cause
to be satisfied and discharged all such unpaid items.
V
SPECIAL COVENANTS AND AGREEMENTS
.0. 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;
provided, however, that the Company may consolidate with or merge
with or into, or sell or otherwise transfer all or substantially
all of its assets (and may thereafter dissolve) to, another
corporation, incorporated under the laws of the United States, one
of the states thereof or the District of Columbia, if the
surviving, resulting or transferee corporation, as the case may be
(if other than the Company), prior to or simultaneously with such
consolidation, merger, sale or transfer, assumes, by delivery to
the Trustee of an instrument in writing satisfactory in form and
substance to the Trustee, all the obligations of the Company
hereunder.
If consolidation, merger or sale or other transfer is made
as permitted by this Section 6.01, the provisions of this Section
6.01 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 6.01.
.1. Permits or Licenses. In the event that it may be necessary
for the proper performance of this Agreement on the part of the
Company or the Issuer that any application or applications for any
permit or license to do or to perform certain things be made to any
governmental or other agency by the Company or the Issuer, the
Company and the Issuer each shall, upon the request of either,
execute such application or applications.
.2. Issuer's and Trustee's Access to Records. The Issuer and
the Trustee shall have the right, upon appropriate prior notice to
the Company, to have reasonable access to the records of the
Company relating to the Facilities and the Bonds during normal
business hours for the purpose of making examinations and
inspections of the same.
.3. Arbitrage Covenant. The Issuer covenants that it shall
take no action, and the Company covenants that it shall not direct
or approve the Trustee's taking any action or making any investment
or use of the proceeds of the Bonds, which would cause the Bonds to
be "arbitrage bonds" within the meaning of Section 148 of the Code,
including any proposed or final regulations thereunder that may be
applicable to the Bonds at the time of such action, investment or
use. The Company further covenants that: (a) all actions with
respect to the Bonds required by Section 148(f) of the Code shall
be taken; (b) it shall make the determinations required by
paragraph (b) of Section 4.06 of the Indenture and promptly notify
the Trustee of the same, together with supporting calculations; and
(c) it shall within twenty-five (25) days after (i) the calendar
date which corresponds to the fifth anniversary of the issue date
of the Bonds and each fifth anniversary thereof falling on or after
the date of initial authentication and delivery thereof up to and
including the final maturity of the Bonds, unless the final
maturity, whether upon redemption in whole or at maturity, of such
Bonds shall have occurred prior to such anniversary, and (ii) such
final payment, file with the Trustee a statement signed by an
Authorized Company Representative to the effect that the Company is
then in compliance with its covenants contained in clauses (a) and
(b) of this sentence, together with supporting calculations;
provided, however, that if the Company shall furnish an opinion of
Bond Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver any
such statements or calculations.
.4. Use of Facilities. The Company shall cause the Facilities
to continue to be used for the abatement or control of pollution or
for the disposal of sewage or solid waste.
.5. Tax Exempt Status of Bonds. The Company covenants and
agrees that it shall not take or authorize or permit any action to
be taken, and has not taken or authorized or permitted any action
to be taken, which adversely affects the exclusion of interest on
the Bonds from gross income for purposes of federal income taxes
pursuant to Section 103 of the Code. Without limiting the
generality of the foregoing, the Company further covenants and
agrees as follows:
( ) No changes have been or will be made in the Project which
in any way adversely affect the exclusion of interest on any of the
Bonds from gross income for purposes of federal income taxation
pursuant to Section 103 of the Code;
(a) No action shall be taken that will cause the Bonds to be
"federally guaranteed" as defined in Section 149(b) of the Code;
and
(b) No portion of the proceeds of the Bonds in excess of 2% of
the proceeds thereof (within the meaning of Section 147(g) of the
Code) will be used to finance costs of issuance of the Bonds.
VI
ASSIGNMENT, LEASING AND SELLING
.0. By the Company. The Company's interest in this Agreement
may be assigned in whole or in part, and the Project 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 6.01 hereof) shall relieve the Company from
primary liability for its obligations under Section 5.02 hereof for
Loan Repayment to the Issuer or for any other of its obligations
hereunder, other than those obligations relating to the operation,
maintenance and insurance of the Project 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.
After any lease or sale of any element or unit of the
Project, or any interest therein, such element or unit, or interest
therein, shall no longer be deemed to be part of the Project for
the purposes of this Agreement.
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
assignment, lease or sale.
.1. Limitation. This Agreement shall not be assigned nor
shall the Project be leased or sold, in whole or in part, except as
provided in this Article VII or in Section 6.01 hereof or in the
Indenture.
VII
EVENTS OF DEFAULT AND REMEDIES
.0. Events of Default. Each of the following events shall
constitute and is referred to in this Agreement as an "Event of
Default":
( ) a failure by the Company to make when due any payment
required to be made pursuant to Section 5.02 hereof, which failure
shall have resulted in an "Event of Default" under clause (a) or
(b) of Section 8.01 of the Indenture.
(a) 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.
(b) the expiration of a period of ninety (90) days following:
( ) the adjudication of the Company as a bankrupt by any
court of competent jurisdiction;
(i) the entry of an order approving a petition seeking
reorganization or arrangement of the Company under the Federal
bankruptcy laws or any other applicable law or statute of the
United States of America, or of any state thereof; or
(ii) the appointment of a trustee or a receiver of all or
substantially all of the property of the Company;
unless during such period such adjudication, order or
appointment of a trustee or receiver shall be vacated or shall be
stayed on appeal or otherwise or shall have otherwise ceased to
continue in effect.
(c) the filing by the Company of a voluntary petition in
bankruptcy or the making of an assignment for the benefit of
creditors; the consenting by the Company to the appointment of a
receiver or trustee of all or any part of its property; the filing
by the Company of a petition or answer seeking reorganization,
adjustment, composition or arrangement under the Federal bankruptcy
laws, or any other applicable law or statute of the United States
of America, or of any state thereof; or the filing by the Company
of a petition to take advantage of any insolvency act.
.1. Force Majeure. The provisions of Section 8.01 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 State of Mississippi, 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 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 obligations under Section 5.02 hereof to make Loan
Repayments and its obligations under Sections 5.05, 6.01, 6.04,
6.06 and 9.01 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.
.2. Remedies on Default.
( ) Upon the occurrence and continuance of any Event of
Default described in clause (a), (c) or (d) of Section 8.01 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 action taken in accordance with Section
8.02 of the Indenture, the payments required to be paid pursuant to
Section 5.02 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 come 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 discontinued or
abandoned for any reason, or shall have been determined adversely
to the Issuer or the Trustee, then and in every 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.
.3. No Remedy Exclusive. No remedy conferred upon or reserved
to the Issuer or the Trustee 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 or 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 required in this Article.
.4. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should default under any of the provisions of
this Agreement and the Issuer or the Trustee should employ
attorneys or incur other expenses for the collection of payments
due hereunder or for the enforcement of performance or observance
of any obligation or agreement on the part of the Company contained
herein, the Company agrees that it will on demand therefor pay to
the Issuer or the Trustee, as the case may be, the reasonable fees
of such attorneys and such other expenses so incurred.
.5. 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 consequence
thereof.
VIII
REDEMPTION OR PURCHASE OF BONDS
.0. 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 amount 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 from the date such notice is given,
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 Bonds are to be redeemed, or for the payment
or redemption of which provision is to be made. The Company shall
furnish to the Trustee, as a prepayment of the amounts due under
Section 5.02 hereof, sufficient moneys or Government Securities (as
defined in the Indenture) in connection with any such redemption.
.1. 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 amount specified in such
notice, and any Bonds so purchased shall thereupon be canceled by
the Trustee.
IX
RECORDATION AND OTHER
INSTRUMENTS
.0. Recording and Filing. The Company shall record and file,
or cause to be recorded and filed, all documents and statements
required or contemplated in Section 4.04 of the Indenture.
.1. Photocopies and Reproductions. A photocopy or other
reproduction of this Agreement may be filed as a financing
statement pursuant to the Uniform Commercial Code, although the
signatures of the Company and the Issuer on such reproduction are
not original manual signatures.
X
MISCELLANEOUS
.0. 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., 639 Loyola Avenue, New
Orleans, Louisiana 70113.
County: Claiborne County, Mississippi, Post Office Box 449,
Port Gibson, Mississippi 39150, Attention: Chancery Clerk.
Trustee: Deposit Guaranty National Bank, Post Office Box
23100, Jackson, Mississippi 39225-3100, 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.
.1. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable; the same shall not affect any other provision or
provisions herein contained or render the same invalid,
inoperative, or unenforceable to any extent whatever.
.2. Execution of Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and
the same instrument.
.3. Amounts Remaining in Bond Fund. It is agreed by the
parties hereto that after payment in full of (i) the Bonds (or the
provision for payment thereof having been made in accordance with
the provisions of the Indenture), (ii) the Administration Expenses
of the Issuer, and (iii) all other amounts required to be paid
under this Agreement and the Indenture, any amounts remaining in
the Bond Fund shall belong to and be paid by the Trustee to the
Company.
.4. Amendments, Changes and Modifications. Except as otherwise
provided in this Agreement or the Indenture, subsequent to the
initial issuance of Bonds and prior to payment in full of the Bonds
(or the provision for payment thereof having been made in
accordance with the provisions of the Indenture), this Agreement
may not be effectively amended, changed, modified, altered or
terminated nor any provision waived, without the written consent of
the Trustee which shall not be unreasonably withheld.
.5. Governing Law. This Agreement shall be governed
exclusively by and construed in accordance with the applicable
internal laws of the State of Mississippi.
.6. Authorized Company Representatives. An Authorized Company
Representative shall act on behalf of the Company whenever the
approval of the Company is required or the Company requests the
Issuer to take some action, and the Issuer and the Trustee shall be
authorized to act on any such approval or request and neither party
hereto shall have any complaint against the other or against the
Trustee as a result of any such action taken.
.7. 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, determined and become void in
accordance with Article VII of the Indenture and until all payments
required under this Agreement shall have been made.
.8. 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.
.9. 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 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 general credit or against
taxing power of the Issuer, the State, or any political subdivision
thereof.
.10. Captions. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Agreement.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and
their respective seals to be hereunto affixed and attested by their
duly authorized officers, all as of the date first written.
CLAIBORNE COUNTY, MISSISSIPPI
By:__________________________________
President, Board of Supervisors
Attest:
_________________________________
Clerk, Board of Supervisors
SYSTEM ENERGY RESOURCES, INC.
By:
Attest:
______________________________
<PAGE.
Exhibit A
DESCRIPTION OF FACILITIES
The Facilities are comprised of
the following:
I. Liquid Waste Systems
Circulating Water System,
consisting of facilities for control of thermal pollution of the
Mississippi River through the use of a closed-loop natural draft
cooling tower, a pumphouse, blowdown and make-up water facilities,
sodium hypochlorite and sulfuric acid removal systems, associated
plumbing and electrical equipment, and related facilities, to
provide cooling water to the condenser which in turn condenses
exhaust steam discharged from the turbine.
II. Solid Waste Systems
Spent fuel storage and handling
facilities consisting of portion of cost of spent fuel transfer
canal, spent fuel pool, liners and high density fuel storage racks
in the spent fuel pool, additional spent fuel pool cooling and
cleaning capacity, spent fuel platform, shipping cask pool, spent
fuel cask handling area, cask washdown area, 150 ton crane, spent
fuel cask loading bay and equipment and railroad spur from
Auxiliary Building to main track, and related portion of Auxiliary
Building allocable to spent fuel storage and handling facilities.
The Facilities are situated at
the Grand Gulf Nuclear Station within Claiborne County,
Mississippi, on Bald Hill Road approximately six to seven miles
northwest of the City of Port Gibson, Mississippi, in Claiborne
County, Mississippi, in Sections 1, 2, 3, 4, 5, 6 and 32, Township
12 North, Range 1 East and Sections 7, 8, 11, 12 and 30, Township
12 North, Range 2 East, of Claiborne County, Mississippi.
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
Personally appeared before me,
the undersigned authority in and for the above county and state,
Edward Carter, Sr., and Frank Wilson, duly identified before me,
the President and Clerk, respectively, of the Board of Supervisors
of Claiborne County, Mississippi, who acknowledged to me that they,
being authorized so to do for and on behalf of and as the act and
deed of Claiborne County, Mississippi, signed, sealed and delivered
the above and foregoing instrument as of the day and year therein
mentioned.
GIVEN under my hand and official
seal on this the ____ day of May, 1995.
_____________________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
(Affix Official Seal)
<PAGE>
STATE OF LOUISIANA
PARISH OF ORLEANS
Personally appeared before me,
the undersigned authority in and for the above parish and state,
______________________________ and _____________________________,
duly identified before me, the __________________ and
_________________, respectively, of System Energy Resources, Inc.,
a corporation organized under the laws of the State of Arkansas,
who each acknowledged to me that they, being authorized so to do
for and on behalf of and as the act and deed of System Energy
Resources, Inc., signed and delivered the above and foregoing
instrument as of the day and year therein mentioned.
GIVEN under my hand and official
seal on this the ____ day of May, 1995.
___________________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
(Affix Official Seal)
EXHIBIT F-1(a)
May 11, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are familiar with (A) the Application-Declaration on Form
U-1 (File No. 70-8511), as amended, filed with the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, as amended, by System Energy Resources, Inc. (the
"Company") and the other companies named therein contemplating,
among other things, the entering into arrangements for the
issuance and sale of one or more series of tax-exempt bonds ("Tax-
Exempt Bonds"), (B) the Securities and Exchange Commission's
Order, dated May 9, 1995, granting and permitting to become
effective the Application-Declaration, as amended, with respect
to the foregoing matters, and (C) the subsequent consummation, on
May 11, 1995, of the entry by the Company into an Amended and
Restated Installment Sale Agreement with Claiborne County,
Mississippi (the "County"), and the related refinancing of
outstanding pollution control revenue bonds through the issuance
by the County of a new series of its Tax-Exempt Bonds (the
"Transactions"). In connection therewith, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Arkansas.
(2) The Transactions have been consummated in
accordance with the Application-Declaration, as amended, and
the Order of the Securities and Exchange Commission with
respect thereto.
(3) All state laws that relate or are applicable to
the participation by the Company in the Transactions (other
than so-called "blue-sky" or similar laws, upon which we do
not pass herein) have been complied with.
(4) The consummation of the Transactions by the
Company has not violated the legal rights of the holders of
any securities issued by the Company.
We hereby consent to the use of this opinion as an exhibit
to the Certificate pursuant to Rule 24.
Very truly yours,
WISE CARTER CHILD & CARAWAY,
Professional Association
By: /s/ Betty Toon Collins
Betty Toon Collins
BTC:sm
Exhibit F-2 (a)
[Letterhead of Reid & Priest]
New York, New York
May 11, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are familiar with (A) the Application-
Declaration on Form U-1 (File No. 70-8511), as amended,
filed with the Securities and Exchange Commission under the
Public Utility Holding Company Act of 1935, as amended, by
System Energy Resources, Inc. (the "Company") and the other
companies named therein contemplating, among other things,
the entering into arrangements for the issuance and sale of
one or more series of tax-exempt bonds (the "Tax-Exempt
Bonds"), (B) the Securities and Exchange Commission's
Order, dated May 9, 1995, granting and permitting to become
effective the Application-Declaration, as amended, with
respect to the foregoing matters, and (C) the subsequent
consummation, on May 11, 1995, of the entry by the Company
into an Amended and Restated Installment Sale Agreement
with Claiborne County, Mississippi (the "County"), and the
related refinancing of outstanding pollution control
revenue bonds through the issuance by the County of a new
series of its Tax-Exempt Bonds (the "Transactions"). In
connection therewith, we advise as follows:
(1) The Company is a corporation duly organized
and validly existing under the laws of the State of
Arkansas.
(2) The Transactions have been consummated in
accordance with the Application-Declaration, as
amended, and the Order of the Securities and Exchange
Commission with respect thereto.
(3) All state laws that relate or are applicable
to the participation by the Company in the
Transactions (other than so-called "blue-sky" or
similar laws, upon which we do not pass herein) have
been complied with.
(4) The consummation of the Transactions by the
Company has not violated the legal rights of the
holders of any securities issued by the Company or any
associate company thereof.
We are members of the New York Bar and do not
hold ourselves out as experts on the laws of any other
state. In giving this opinion, we have relied, as to all
matters governed by the laws of the State of Arkansas and
of the State of Mississippi, upon an opinion of even date
herewith of Wise Carter Child & Caraway, Professional
Association, which is to be filed as an exhibit to the
Certificate pursuant to Rule 24.
We hereby consent to the use of this opinion as
an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
