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
Orders of the Securities and Exchange Commission dated May 9,
1955 (Release No. 35-26287) and August 18, 1995 (Release No. 35-
26358) with respect thereto.
On February 22, 1996, the Company entered into an
Amended and Restated Installment Sale Agreement, dated as of
February 15, 1996, with Claiborne County, Mississippi (the
"County"), pursuant to which the County issued and sold
$90,000,000 principal amount of its 9.20% Pollution Control
Revenue Refunding Bonds (System Energy Resources, Inc. Project)
Series 1996.
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(c) - Post-effective opinion of Ann G. Roy, Esq.,
Associate Counsel-Corporate and Securities,
Entergy Services, Inc.
Exhibit F-2(c) - Post-effective opinion of Reid & Priest LLP.
IN WITNESS WHEREOF, the Company has caused this
certificate to be executed this 4th day of March, 1996.
SYSTEM ENERGY RESOURCES, INC.
By: /s/ William J. Regan, Jr.
William J. Regan, Jr.
Vice President and
Treasurer
Exhibit B-4(a)
CLAIBORNE COUNTY, MISSISSIPPI
to
SIMMONS FIRST NATIONAL BANK,
Trustee
___________________
TRUST INDENTURE
Dated as of February 15, 1996
___________________
Authorizing
Claiborne County, Mississippi
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1996
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of February 15, 1996, 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 Simmons First
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 Pine Bluff, Arkansas, 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 sewage and 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
May 29, 1986, issued $90,000,000 principal amount of Claiborne
County, Mississippi, Pollution Control Revenue Bonds (Middle
South Energy, Inc. Project) Series E (the "Prior Bonds"),
pursuant to an Indenture of Trust dated as of May 1, 1986,
between the Issuer and Deposit Guaranty National Bank, as trustee
(the "Prior Indenture"); $90,000,000 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 air
and water pollution control facilities and sewage and solid waste
disposal facilities (collectively, 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 May 1, 1986, 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., a Delaware corporation and an affiliate
of the Company, is the operator of 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 Governing Body of the
Issuer on January 10, 1996, 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 1996 in the principal amount of
$90,000,000 (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
February 15, 1996 (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 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 (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 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; 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 a security interest in the trust
funds created and held hereunder, have been done and performed,
and the authorization, execution and delivery of this Indenture,
and the authorization, 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:
ARTICLE I
DEFINITIONS
SECTION 1.01 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
February 15, 1996, 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.
"Bond Counsel" shall mean a firm nationally recognized as
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 Issuer's $90,000,000
principal amount Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1996 authorized to
be issued under this Indenture.
"Bond Registrar" shall mean the Trustee when acting as
registrar 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.
"Continuing Disclosure Agreement" means the Continuing
Disclosure Agreement dated February 22, 1996, executed and
delivered by the Company to the Trustee for the benefit of the
holders of the Bonds in order to assist the Underwriters in
complying with Rule 15c 2-12 under the Securities Exchange Act of
1934, as amended.
"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 Trust Indenture 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.
"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 condi
tion "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 canceled 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 Simmons First National Bank, Pine
Bluff, Arkansas, as trustee under this Indenture, its successors
in trust and their assigns.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No Bonds may be
issued under the provisions of this Indenture except in
accordance with this Article II.
SECTION 2.02 Issuance of Bonds. There shall be issued
under and secured by this Indenture Bonds of the Issuer in the
aggregate principal amount of Ninety Million Dollars
($90,000,000) 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 1996," shall be dated the 15th day of February,
1996, shall bear interest from the date determined pursuant to
Section 2.04 hereof at the rate of six and twenty one-hundredths
per centum (6.20%) per annum, which interest shall be payable on
the first day of February and August of each year commencing
August 1, 1996, 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 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.
SECTION 2.03. 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.
SECTION 2.04. Details, Execution and Payment. Each Bond
shall bear interest from the interest payment date next preceding
the date on which it is authenticated, unless authenticated prior
to August 1, 1996, in which event it shall bear interest from
February 1, 1996, 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 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.
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.
SECTION 2.05. Authentication; Exchange, Transfer and
Ownership of Bonds. Only such of the Bonds as shall have
endorsed thereon a certificate of authentication substantially in
the form hereinabove set forth, duly executed by the Trustee,
shall be entitled to any benefit or security under this
Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the
Trustee upon any such Bond shall be conclusive evidence that such
Bond has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an
authorized officer of the Trustee, but it shall not be necessary
that the same officer sign the certificate of authentication on
all of the Bonds that may be issued hereunder at any one time.
Subject to the provisions of Section 2.10 hereof:
(a) Bonds, upon surrender thereof at the principal
office of the Trustee, together with an assignment duly executed
by the registered Owner or his attorney or legal representative
in such form as shall be satisfactory to the Trustee, may, at the
option of the registered Owner thereof, be exchanged for an equal
aggregate principal amount of Bonds, of any denomination or
denominations authorized by this Indenture, and in the same form
as the Bonds surrendered for exchange.
(b) The Issuer hereby authorizes the exchange of Bonds
at the principal office of the Trustee.
(c) The Trustee is hereby appointed as Bond Registrar
and as such shall keep books for the registration and for the
transfer of Bonds as provided in this Indenture.
(d) Any Bond may be transferred only upon the books
kept for the registration and transfer of Bonds upon surrender
thereof to the Bond Registrar together with an assignment duly
executed by the registered Owner or his attorney or legal
representative in such form as shall be satisfactory to the Bond
Registrar. Upon any such transfer the 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.
(e) 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 canceled 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.
(f) Any registered Owner of any Bond is hereby granted
power to transfer absolute title thereto by assignment thereof to
a bona fide purchaser for value (present or antecedent) without
notice of prior defenses or equities or claims of ownership
enforceable against his assignor or any person in the chain of
title and before the maturity of such Bond. Every prior holder
or Owner of any Bond shall be deemed to have waived and renounced
all of his equities or rights therein in favor of every such bona
fide purchaser, and every such bona fide purchaser shall acquire
absolute title thereto and to all rights represented thereby.
(g) At reasonable times and under reasonable
regulations established by the Trustee, the list of registered
Owners of the Bonds may be inspected and copied by the Company or
by holders or Owners (or a designated representative thereof) of
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.
SECTION 2.06 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) 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.
(b) An original duly executed counterpart of the
Agreement, an original duly executed counterpart of the
Continuing Disclosure Agreement and an original duly executed
counterpart of this Indenture.
(c) 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 to be deposited
as provided in Section 4.02 of the Agreement, the
balance of such proceeds.
SECTION 2.07 Temporary Bonds. Until definitive Bonds are
ready for delivery, there may be executed, and upon request of
the 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.
SECTION 2.08 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.
SECTION 2.09 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
canceled 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 may approve at any time, is
hereby approved, and the Issuer shall execute and deliver such
Letter of Representations. The approval of the Issuer 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. 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 BY 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.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. 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
February 1, 2001, 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
February 1, 2001 through January 31, 2002 102%
February 1, 2002 through January 31, 2003 101%
February 1, 2003 and thereafter 100%
The Bonds are also 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 are also subject to optional redemption by the
Issuer at the direction of the Company, in whole but not in part,
at any time prior to February 1, 2001, 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 are subject to mandatory redemption
prior to their scheduled maturity on a date specified by the
Company, which shall be 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
any Bonds remaining Outstanding after such redemption would not,
in the opinion of Bond Counsel, 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.
SECTION 3.02. Notice of Redemption. At least thirty (30)
days but not more than sixty (60) days before the redemption date
of any Bonds, the Trustee shall cause a notice of any such
redemption, either in whole or in part, to be mailed, postage
prepaid, to all 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.
SECTION 3.03. Effect of Call for Redemption. On the date
so designated for redemption, moneys for payment of the
redemption price and accrued interest to the redemption date
being held by the Trustee in trust for the 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.
SECTION 3.04. 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.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All moneys
which the Trustee shall have withdrawn from the Bond Fund or
shall have received from any other source and set aside 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.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. 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.
SECTION 4.02. 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.
SECTION 4.03. 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.
SECTION 4.04. 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.
SECTION 4.05. Rights Under Agreement. The Agreement, a
duly executed counterpart of which has been filed with the
Trustee, sets forth the covenants and obligations of the 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.
SECTION 4.06. Prohibited Activities; Arbitrage Covenants.
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.
SECTION 4.07. 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.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. 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.
SECTION 5.02. 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 1996 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.
SECTION 5.03. Payments into the Bond Fund. There shall be
deposited into the Bond Fund any accrued interest received from
the sale of the Bonds. In addition, there shall be deposited
into the Bond Fund, as and when received, (i) all 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.
SECTION 5.04. Use of Moneys in the Bond Fund. Except as
provided in Section 5.08 hereof, moneys in the Bond Fund shall be
used solely for the payment of the principal of and redemption
premium, if any, and interest on the Bonds.
SECTION 5.05. Custody of the Bond Fund. The Bond Fund
shall be in the custody of the Trustee but in the name of the
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.
SECTION 5.06. Non-presentment of Bonds. In the event any
Bond shall not be presented for payment when the principal
thereof becomes due, whether at stated maturity, upon redemption,
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.
SECTION 5.07. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for the
account of the Bond Fund under any provision of this Indenture or
the Agreement shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of the Bonds, notice of the redemption of which has
been duly given and for moneys deposited with or paid to the
Trustee pursuant to Article VII hereof, shall, while held by the
Trustee, constitute part of the Trust Estate and be subject to
the security interest created hereby.
SECTION 5.08. Repayment to the Company from Bond Fund. Any
amounts remaining in the Bond Fund after payment in full of the
principal of 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.
SECTION 5.09. 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 1996 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.
ARTICLE VI
INVESTMENTS
SECTION 6.01. 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.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. 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.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 8.01. Events of Default. Each of the following
events shall constitute and be referred to in this Indenture as
an "Event of Default":
(a) default in the due and punctual payment of
any interest on any Bond hereby secured and outstanding and
the continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of
the principal of and redemption premium, if any, on any Bond
hereby secured and Outstanding, whether at the stated
maturity thereof, or upon proceedings for the unconditional
redemption thereof, or upon the maturity thereof by
acceleration;
(c) default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the 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
(d) 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.
SECTION 8.02. 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.
SECTION 8.03. Other Remedies. If any Event of Default
occurs and is continuing, except as otherwise provided in Section
9.11 hereof, the Trustee may pursue any available remedy by suit
at law or in equity to enforce the payment of the principal of
and redemption premium, if any, and interest on the Bonds then
Outstanding hereunder, then due and payable, and enforce each and
every right granted to it under the Agreement and any supplements
or amendments thereto for the benefit of the 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.
SECTION 8.04. Legal Proceedings by Trustee. If any Event
of Default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the 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:
(a) 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;
(b) bring suit upon the Bonds;
(c) 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
(d) 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 Event of Default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the 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.
SECTION 8.05. 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.
SECTION 8.06. Appointment of Receivers. Upon the
occurrence of an Event of Default, and upon the filing of a suit
or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the 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.
SECTION 8.07. Waiver. Upon the occurrence of an Event of
Default, to the extent that such rights may then lawfully be
waived, neither the 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.
SECTION 8.08. Application of Moneys. All moneys received
by the Trustee pursuant to any right given or action taken under
the provisions of this Article VIII shall, after payment of the
costs and expenses of the proceedings resulting in the collection
of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, including but not limited to
payments for and expenses of third party professionals, be
deposited in the Bond Fund and all moneys in the Bond Fund shall
be applied as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons entitled
thereto of the unpaid principal of and redemption
premium, if any, on any of the Bonds which shall have
become due (other than Bonds matured or called for
redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), in the
order of their due dates, with interest on such Bonds
from the respective dates upon which they became due
and, if the amount available shall not be sufficient to
pay in full Bonds due on any particular date, together
with such interest, then to the payment ratably,
according to the amount of principal due on such date,
to the persons entitled thereto without any
discrimination or privilege.
THIRD - Payment of interest on and principal of
the Bonds, and to the redemption of Bonds in accordance
with the provisions of Article III hereof.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to the
payment of the principal and interest then due upon the Bonds,
without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over
any other installment of interest, or of any Bond over any other
Bond, ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto without
any discrimination or privilege.
(c) If the principal of all the Bonds shall have become due
and payable, and if such acceleration shall thereafter have been
rescinded and annulled under the provisions of this Article VIII
then, subject to the provisions of subsection (b) of this Section
8.08 in the event that the principal of all the Bonds shall later
become due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of subsection (a) of
this Section 8.08.
Whenever moneys are to be applied pursuant to the provisions
of this Section 8.08, such moneys shall be applied at such times,
and from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest payment
date unless it shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the
amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the
fixing of any such date, and shall not be required to make
payment to the 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.
SECTION 8.09. Remedies Vested in the Trustee. All rights
of action (including the right to file proof of claims) under
this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any 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.
SECTION 8.10. 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 (a) 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, (b) 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, (c) they have offered to the Trustee indemnity as
provided in Section 9.01(l) hereof, and (d) 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.
SECTION 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, or otherwise, and
such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely, then and in
every such case the 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.
SECTION 8.12. Waivers of Events of Default. The Trustee
may in its discretion waive any Event of Default hereunder and
its consequences and rescind any acceleration of maturity of
principal, and shall do so upon the written request of the 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.
SECTION 8.13. 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.
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default which
may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be answerable
for the conduct of the same in accordance with the standard
specified 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.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for the
recording or re-recording, filing or re-filing of this Indenture,
or any other instrument required by this Indenture to secure the
Bonds, or for insuring the Project or collecting any insurance
moneys, or for the validity of the execution by the 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.
(d) The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The Trustee
may become the Owner of Bonds secured hereby with the same rights
which it would have if it were not the Trustee. To the extent
permitted by law, the Trustee may also receive tenders and
purchase in good faith Bonds from itself, including any
department, affiliate or subsidiary, with like effect as if it
were not the Trustee.
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person
who at the time of making such request or giving such authority
or consent is the Owner of any Bond, shall be conclusive and
binding upon all future Owners of the same Bond and upon Owners
of Bonds issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate signed by 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.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty,
and it shall not be answerable for other than its negligence or
willful default.
(h) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the 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.
(i) At any and all reasonable times the Trustee and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully to
inspect all books, papers and records of the Issuer pertaining to
the Bonds, and to take such memoranda from and in regard thereto
as may be desired.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals or
other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, which the Trustee in its discretion
may deem desirable for the purpose of establishing the right of
the Issuer to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in this
Indenture, the Trustee may require that a satisfactory indemnity
bond be furnished for the reimbursement of all expenses to which
it may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its
negligence or willful default by reason of any action so taken.
(m) All moneys received by the Trustee or any Paying
Agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they were
received but need not be segregated from other funds except to
the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any moneys
received hereunder except such as may be mutually agreed upon.
SECTION 9.02 Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement from the
Company for reasonable fees for its services rendered hereunder
and all advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an Event of Default, but only upon an Event
of Default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of 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.
SECTION 9.03. 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.
SECTION 9.04. 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.
SECTION 9.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party, shall be and become successor
Trustee hereunder and vested with all of the title to the Trust
Estate and all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without
the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, that
such successor Trustee shall have been approved as successor
Trustee by the Company in writing filed with the Issuer and the
Trustee.
SECTION 9.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving thirty (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.
SECTION 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent instruments
in writing delivered to the Trustee and to the Issuer, and signed
by the Owners of a majority in aggregate principal amount of
Bonds then Outstanding or by the Company so long as no Event of
Default as defined in Section 8.01(a), (b) or (d) hereof has
occurred and is continuing.
SECTION 9.08. 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.
SECTION 9.09. 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.
SECTION 9.10. 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.
SECTION 9.11. 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.
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. 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:
(a) to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such manner
as shall not in the opinion of the Trustee impair the security
hereof or adversely affect the Owners of the Bonds;
(b) 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;
(c) to add additional covenants of the Issuer, or to
surrender any right or power herein conferred upon the Issuer;
(d) to subject to this Indenture additional revenues,
properties or collateral; and
(e) to modify, amend or supplement this Indenture or
any indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939, 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.
SECTION 10.02. 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.
SECTION 10.03. 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.
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. 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.
SECTION 11.02. 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.
SECTION 11.03. 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.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. 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.
SECTION 12.02. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds, is
intended or shall be construed to give to any person or company
other than the Company, the parties hereto, and the 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.
SECTION 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
SECTION 12.04. Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered
or certified mail, postage prepaid, or sent by telegram,
addressed as follows: If to the Issuer, at the Office of the
Chancery Clerk, Post Office Box 449, Port Gibson, Mississippi
39150; if to the Trustee, at 501 Main Street, Pine Bluff,
Arkansas, 71601, 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.
SECTION 12.05. Trustee as Paying Agent. The Trustee is
hereby designated and agrees to act as Paying Agent for and in
respect to the Bonds.
SECTION 12.06. Payments Due on Sundays and Holidays. In any
case where the date of maturity of interest on or principal of
Bonds or the date fixed for redemption of any Bonds shall be in
the city of payment a Sunday or a legal holiday or a day on which
banking institutions are authorized by law to close, then payment
of interest or principal (and redemption premium, if any) need
not be made on such date but may be made on the next succeeding
business day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no
interest on such payment shall accrue for the period after such
date.
SECTION 12.07. Counterparts. This Indenture may be executed
in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
SECTION 12.08. Applicable Provisions of Law. This Indenture
shall be governed by and construed in accordance with the
internal laws of the State.
SECTION 12.09. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of
this Indenture.
SECTION 12.10 No Liability of 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 Simmons First 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
SIMMONS FIRST NATIONAL BANK,
TRUSTEE
By:________________________________
Attest:
_____________________________
EXHIBIT A
[FORM OF BOND]
[Add DTC Legend if Applicable]
<PAGE>
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
CLAIBORNE COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
(SYSTEM ENERGY RESOURCES, INC. PROJECT)
Series 1996
No. R- $__________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
February 1, 2026 February 15, 1996 179423AK4
REGISTERED OWNER: _____________________________
PRINCIPAL SUM: _________________
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 [page ___ or the reverse hereof]
at the rate of six and twenty one-hundredths per centum (6.20%)
per annum, on February 1 and August 1 of each year, commencing
August 1, 1996, until the principal sum is paid or duly provided
for. Interest on this Bond 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 Simmons First National Bank,
501 Main Street, Pine Bluff, Arkansas 71601, 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 15th day of February, 1996.
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, P.A., Jackson, Mississippi, pertaining
to the Bonds is on file with the undersigned.
SIMMONS FIRST 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 9th day of February, 1996.
[manual or facsimile signature]
[SEAL] Clerk, Board of Supervisors and
Chancery Clerk of Claiborne County,
Mississippi
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OR
SUPPLEMENTAL PAGES OF EACH OF THE BONDS)
This Bond is one of the Issuer's Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1996 aggregating $90,000,000 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 E (the
"Prior Bonds"). The Prior Bonds were issued on May 29, 1986, to
defray the cost of acquiring an undivided 90% interest (the
"Project") in certain air and water pollution control facilities
and sewage and solid waste disposal facilities (collectively, the
"Facilities") at the Grand Gulf Nuclear Station (the "Plant"), a
nuclear electric generating plant located within Claiborne County
on Bald Hill Road 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 May 1, 1986; the Company is the owner of the Project;
Entergy Operations, Inc., a Delaware corporation and an affiliate
of the Company, is the operator of 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 February 15, 1996 (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 with 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 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 February 1, 2001, 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
February 1, 2001 through January 31, 2002 102%
February 1, 2002 through January 31, 2003 101%
February 1, 2003 and thereafter 100%
The Bonds are also 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 are also subject to optional redemption by the
Issuer, at the direction of the Company, in whole but not in
part, at any time prior to February 1, 2001, 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 are subject to mandatory redemption
prior to their scheduled maturity, on a date to be specified by
the Company, which shall be 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
any Bonds remaining Outstanding after such redemption would not,
in the opinion of Bond Counsel, 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 Agreement 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 by the Company to the
Trustee for the account of the Issuer and deposited in trust in
the Bond Fund described therein; under the Indentures the
Revenues and Receipts of the Issuer under the Agreement have been
duly assigned by the Issuer 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 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
transfer 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 guarantor assignment must correspond with
acceptable to the Trustee the name of the payee as it
appears upon the face of the
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 February,
1996, within my jurisdiction, the within named _________________,
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 the Board of Supervisors of
Claiborne County, Mississippi, so to do.
_____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF ARKANSAS
COUNTY OF ___________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of February,
1996, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of Simmons First 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)
Indexing Instructions:
The subject property is located
within Sections 1, 2, 3, 4, 5,
6 and 32 in Township 12 North,
Range 1 East, and Sections 7,
8, 11, 12 and 30 in Township 12
North, Range 2 East, Claiborne
County, Mississippi.
CLAIBORNE COUNTY, MISSISSIPPI
AND
SYSTEM ENERGY RESOURCES, INC.
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of February 15, 1996
__________________
Relating To
Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1996
Prepared by:
John Hampton Stennis
Watkins Ludlam & Stennis, P.A.
633 North State Street
Jackson, MS 39202
(601) 949-4949
MS BAR NO. 7845
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
February 15, 1996, 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 sewage and 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 May 29,
1986, issued $90,000,000 principal amount of Claiborne County,
Mississippi, Pollution Control Revenue Bonds (Middle South
Energy, Inc. Project) Series E (the "Prior Bonds"), pursuant to
an Indenture of Trust dated as of May 1, 1986, between the Issuer
and Deposit Guaranty National Bank, as trustee (the "Prior
Indenture"); $90,000,000 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
air and water pollution control facilities and sewage and solid
waste disposal facilities (collectively, 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 May 1,
1986, 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., a
Delaware corporation and an affiliate of the Company, is the
operator of 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 Governing Body of the
Issuer on January 10, 1996 (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 1996 in the principal
amount of $90,000,000 (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 and to effect
the refunding of the Prior Bonds by the issuance of the Bonds and
the lending of the principal proceeds thereof to the Company to
provide funds 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 its entry
into this Agreement and 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 this Amended and Restated Installment Sale
Agreement so as to provide 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:
ARTICLE I
DEFINITIONS
SECTION 1.01. 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.
"Bond Counsel" shall mean a firm nationally recognized as
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 Issuer's $90,000,000
principal amount Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series 1996 authorized to
be issued under the Indenture.
"Bond Registrar" shall mean the Trustee when acting as
registrar 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 corpora
tion 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 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 Trust Indenture , dated as of
February 15, 1996, 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 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.
"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 canceled 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 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 Simmons First National Bank, Pine Bluff,
Arkansas, as trustee under the Indenture, its successors in trust
and their assigns.
ARTICLE II
REPRESENTATIONS
SECTION 2.01. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a public body corporate and politic
and 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
SECTION 2.02. 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:
(a) 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.
(b) The Facilities constitute a pollution control
project of the type authorized and permitted by the Pollution
Control Act.
(c) 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.
(d) 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.
(e) The Bureau of Pollution Control, Mississippi
Department of Natural Resources, in August, 1985, 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.
(f) 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.
ARTICLE III
THE PROJECT
SECTION 3.01. 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.
SECTION 3.02. 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.
SECTION 3.03. 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.
SECTION 3.04. 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.
ARTICLE IV
ISSUANCE OF BONDS
SECTION 4.01. 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.
SECTION 4.02. 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 paid to the Trustee for the Prior Bonds to be deposited
into the bond fund 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.
ARTICLE V
LENDING OF BOND PROCEEDS; PAYMENTS BY COMPANY
SECTION 5.01. Lending 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.
SECTION 5.02. 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 accrued
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
redemption 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.
SECTION 5.03. 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.
SECTION 5.04. 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.
SECTION 5.05. 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.
SECTION 5.06. 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.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.01 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.
SECTION 6.02. 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.
SECTION 6.03. 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.
SECTION 6.04. Arbitrage Covenant. The Issuer covenants that
it shall take no action, and the Company covenants that it shall
not take or 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 timely be taken; (b)
it shall make all determinations required by paragraph (b) of
Section 4.06 of the Indenture and promptly provide notice to 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.
SECTION 6.05. Use of Facilities. The Company shall cause
the Facilities to continue to be used for the abatement or
control of air and water pollution or for the disposal of sewage
or solid waste.
SECTION 6.06. Tax Exempt Status of Bonds. The Company
covenants and agrees that it shall not take or authorize or
permit any action to be taken, and has not taken or authorized or
permitted any action to be taken, which adversely affects the
exclusion of interest on the Bonds from gross income for purposes
of federal income taxes pursuant to Section 103 of the Code.
Without limiting the generality of the foregoing, the Company
further covenants and agrees as follows:
(a) No changes have been or will be made in the
Facilities or the Project which in any way adversely affect the
exclusion of interest on any of the Bonds from gross income for
purposes of federal income taxation pursuant to Section 103 of
the Code;
(b) No action shall be taken that will cause the Bonds
to be "federally guaranteed" as defined in Section 149(b) of the
Code; and
(c) No portion of the proceeds of the Bonds will be
used to finance costs of issuance of the Bonds.
SECTION 6.07. Issuer to Notify and Cooperate with Company.
The Issuer hereby agrees: (a) to notify the Company in the event
the tax-exempt status of the Bonds is questioned or otherwise
investigated by the Internal Revenue Service, (b) to permit the
Company, at its expense, to appoint counsel to represent the
Issuer in connection with any such investigation and to instruct
such counsel concerning the terms and conditions of any
compromise, closing agreement or similar arrangement with the
Internal Revenue Service concerning the tax-exempt status of the
Bonds, and (c) to approve any such terms and conditions that are
reached pursuant to Section 6.07(b).
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.01. 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.
SECTION 7.02. 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.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default. Each of the following
events shall constitute and is referred to in this Agreement as
an "Event of Default":
(a) a failure by the Company to make when due any
payment required to be made pursuant to Section 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.
(b) a failure by the Company to pay when due any other
amount required to be paid under this Agreement or to observe and
perform any covenant, condition or agreement on its part to be
observed or performed which failure shall continue for a period
of ninety (90) days after written notice, specifying such failure
and requesting that it be remedied, shall have been given to the
Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Issuer and
the Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued.
(c) the expiration of a period of ninety (90) days
following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) 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
(iii) 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.
(d) 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.
SECTION 8.02. 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.
SECTION 8.03. Remedies on Default.
(a) 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.
(b) 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.
(c) Any amounts collected pursuant to action taken
under this Section shall be applied in accordance with the
Indenture.
(d) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every 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.
SECTION 8.04. 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.
SECTION 8.05. 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.
SECTION 8.06. 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.
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
SECTION 9.01. 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.
SECTION 9.02. 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.
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
SECTION 10.01. 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.
SECTION 10.02. 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.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. 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., P. O. Box 61000, New
Orleans, Louisiana 70161, Attention: Treasurer.
Issuer: Claiborne County, Mississippi, Post Office Box 449, Port
Gibson, Mississippi 39150, Attention: Chancery Clerk.
Trustee: Simmons First National Bank, 501 Main Street, Pine
Bluff, Arkansas, 71601, 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.
SECTION 11.02. 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.
SECTION 11.03. 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.
SECTION 11.04. 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.
SECTION 11.05. 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.
SECTION 11.06. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable internal laws of the State of Mississippi.
SECTION 11.07. 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.
SECTION 11.08. 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.
SECTION 11.09. 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.
SECTION 11.10. 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.
SECTION 11.11. 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.
<PAGE>
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
I.
The Facilities comprise the following:
Liquid Waste Systems
1. Portion of Reactor Water Cleanup System which collects
backwash liquid waste which would normally go to drains, and
which includes pumps, heat exchangers, filter demineralizers,
strainers and tanks necessary to provide continuous purifying
treatment of the reactor water.
2. Portion of the Liquid Radwaste System which includes
three primary subsystems (equipment drains, floor drains, and
chemical waste processing) which are designed to control,
collect, store, process, treat and dispose of low-level
radioactive liquid wastes.
3. Portion of Auxiliary Building allocable to liquid waste
systems.
4. Portion of Radwaste Building allocable to liquid waste
systems.
5. Chemical and waste storage basins, constructed of
reinforced concrete with a two-foot curb around all sides, and
surrounded by a chain link fence, used to collect and store,
before shipment and disposal off-site, containerized
non-radioactive liquid waste consisting of cleaning solvents,
laboratory chemical wastes, oils and similar liquid wastes.
6. Portion of 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 sulphuric 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.
7. Radial Well System, comprised of facilities to provide
additional makeup water to the circulating water system,
including a large reinforced concrete caisson, installed
vertically, that extends into the alluvial sediments adjacent to
the Mississippi River. Cooling tower make-up water will be
derived from the Mississippi by means of induced filtration and
will enter the caissons through horizontal screened pipes
extending radially from the caisson into the alluvial sediments.
8. Site Runoff Waste Water Treatment System, consisting of
concrete canals, catch basins, culverts, manholes, piping, chutes
and chute spillways that collect waste water and convey it to
Sediment Basins A & B, and the earthen dams with concrete weirs
that form the perimeter of the Sediment Basins. These basins
remove suspended solids by a settling process and also provide
for storage and monitoring of the waste water.
9. Oily Waste System which will collect nonradioactive
oily wastes from stabilizing sumps in several buildings.
10. Chemical Waste System which will collect and neutralize
chemical wastes contained in nonradioactive water from the
make-up water treatment system and blow-down facilities.
11. Sediment Retention System, comprised of wastewater
discharge basin to receive low volume wastewater and original
temporary piping installed to remove wastewater contaminants
induced during construction.
Gaseous Waste Systems
1. Gaseous Radwaste Management System designed to control
air pollution, consisting of an Off-gas System, a Radwaste
Building Filter System, an Auxiliary Building Filter System and a
Containment Building Filter system. Includes exhaust filters,
fans, ducts, radiation monitors and related facilities to
collect, filter and discharge exhaust air.
2. Portion of the Off-Gas Building, the Radwaste Building
and the Auxiliary Building allocable to the Gaseous Radwaste
Management System.
3. Portion of the Turbine Building Ventilation System
consisting of heating, ventilation and cooling systems designed
to provide an environment with controlled temperature and
humidity. Included in the financeable cost is the exhaust
collection and exhaust ductwork, exhaust filters, fans and
radiation monitors.
4. Sky-shine Shielding System consisting of structures
designed to control air pollution by limiting offsite emissions
of direct radiation from the Plant.
Environmental Testing Facilities
Environmental Monitoring Facility, which gathers biological,
soil, air and water samples from points both close to and more
distant from the Plant, and subjects them to analyses, and
includes the Environmental Surveillance Facility, consisting of
office and laboratory space used for sample preparation and
analysis, sample storage, and hazardous waste processing, which
monitors, analyzes and evaluates performance of the air and water
pollution control facilities and solid waste disposal facilities,
as well as Salt Deposition Analysis facilities.
Solid Waste Systems
1. Portion of Radwaste Building allocable to solid waste
systems that collect, store, package, and prepare radioactive
solid waste and solidified liquid waste for offsite shipment and
permanent disposal.
2. 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.
Sewage Systems
Facilities for Energy Services Center designed to treat and
dispose of sewage which facilities consist of all sanitary waste
piping in Energy Services Center and sanitary waste pipe from
Center to Treatment Plant.
II.
The Facilities are situated upon the following land in
Claiborne County, Mississippi:
The Grand Gulf Nuclear Station located within the
geographical limits of the Issuer approximately six to
seven miles northwest of Port Gibson in District 2,
Claiborne County, Mississippi, situated 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.
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF CLAIBORNE
Personally appeared before me, the undersigned authority in
and for the above county and state, within my jurisdiction, the
within named Charles L. Johnson 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, and 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 February, 1996.
_____________________________________
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 as 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 February, 1996.
___________________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
(Affix Official Seal)
Exhibit F-1(c)
[Letterhead of Entergy Services, Inc.]
March 4, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
I am 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 matter, and (C) the subsequent consummation, on
February 22, 1996, 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 "Transaction"). In connection
therewith, I advise as follows:
(1) The Company is a corporation duly organized
and validly existing under the laws of the State of Arkansas.
(2) The Transaction 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 Transaction
(other than so-called "blue-sky" or similar laws,
upon which I do not pass herein) have been complies
with.
(4) The consummation of the Transaction by the
Company has not violated the legal rights of the holders
of any securities issued by the Company or any associate
company thereof.
I hereby consent to the use of this opinion as an
exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
ENTERGY SERVICES, INC.
/s/ Ann G. Roy
Ann G. Roy
Associate Counsel
Corporate and Securities
Exhibit F-2(c)
New York, New York
March 4, 1996
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 February 22, 1996, 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 Ann G. Roy, Esq., Associate Counsel - Corporate
and Securities of Entergy Services, Inc., 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
