Exhibit A-2(b)
________________________________________________________________
ENTERGY MISSISSIPPI, INC.
(formerly Mississippi Power & Light Company)
to
BANK OF MONTREAL TRUST COMPANY
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
(successor to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
As Trustees under
Entergy Mississippi Inc.'s
Mortgage and Deed of Trust, dated as of February 1, 1988
________________________________
TWELFTH SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds
6.45% Series due April 1, 2008
________________
Dated as of April 1, 1998
Prepared by ▇▇▇ ▇. ▇▇▇
Senior Counsel - Corporate and Securities
Entergy Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
________________________________________________________________
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 6
Section 1.02. Certain Defined Terms 6
Section 1.03. References Are to Twelfth Supplemental Indenture 7
Section 1.04. Number and Gender 8
ARTICLE II
THE SEVENTEENTH SERIES
Section 2.01. Bonds of the Seventeenth Series 8
Section 2.02. Optional Redemption of Bonds of the Seventeenth
Series 9
Section 2.03. Transfer and Exchange 9
Section 2.04. Dating of Bonds and Interest Payments 10
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 10
Section 3.02. Further Assurances 11
Section 3.03. Limitation on Restricted Payments 11
Section 3.04. Protection of Rate Order 12
Section 3.05. Limitation on Sale, Transfer or Pledge of
Deferred Grand Gulf I Costs 12
Section 3.06. Preconsent to Modification of Rights under
Sections 3.04 and 3.05 12
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts 13
Section 4.02. Effect of Twelfth Supplemental Indenture under
Louisiana Law 13
Section 4.03. Record Date 13
Section 4.04. Titles 14
Section 4.05. Counterparts 14
Section 4.06. Governing Law 14
Signatures
Acknowledgments
Exhibit A - Form of Bond of the Seventeenth Series
TWELFTH SUPPLEMENTAL INDENTURE
_________________________
TWELFTH SUPPLEMENTAL INDENTURE, dated as of April 1,
1998, between ENTERGY MISSISSIPPI, INC. (formerly Mississippi
Power & Light Company), a corporation of the State of
Mississippi, whose post office address is ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (tel. ▇▇▇-▇▇▇-▇▇▇▇) (the "Company") and
BANK OF MONTREAL TRUST COMPANY, a corporation of the State of New
York, whose principal office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (tel. ▇▇▇-▇▇▇-▇▇▇▇) and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(successor to Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), whose post office address is
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (tel. 212-701-
7602), as trustees under the Mortgage and Deed of Trust, dated as
of February 1, 1988, executed and delivered by the Company
(herein called the "Original Indenture"; the Original Indenture
together with any and all indentures and instruments supplemental
thereto being herein called the "Indenture");
WHEREAS, the Original Indenture has been duly recorded
or filed as required in the States of Mississippi, Arkansas and
Wyoming; and
WHEREAS, the Company has executed and delivered to the
Trustees (such term and all other defined terms used herein and
not defined herein having the respective definitions to which
reference is made in Article I below) its First Supplemental
Indenture, dated as of February 1, 1988, its Second Supplemental
Indenture, dated as of July 1, 1988, its Third Supplemental
Indenture, dated as of May 1, 1989, its Fourth Supplemental
Indenture, dated as of May 1, 1990, its Fifth Supplemental
Indenture, dated as of November 1, 1992, its Sixth Supplemental
Indenture, dated as of January 1, 1993, its Seventh Supplemental
Indenture, dated as of July 15, 1993, its Eighth Supplemental
Indenture, dated as of November 1, 1993, its Ninth Supplemental
Indenture, dated as of July 1, 1994, its Tenth Supplemental
Indenture, dated as of April 1, 1995, and its Eleventh
Supplemental Indenture, dated as of June 1, 1997, each as a
supplement to the Original Indenture, which Supplemental
Indentures have been duly recorded or filed as required in the
States of Mississippi, Arkansas and Wyoming; and
WHEREAS, in addition to property described in the
Original Indenture, as heretofore supplemented, the Company has
acquired certain other property rights and interests in property;
and
WHEREAS, the Company has heretofore issued, in
accordance with the provisions of the Indenture, the following
series of bonds:
Principal Principal
Series Amount Amount
Issued Outstanding
14.65% Series due February 1, 1993 $55,000,000 None
14.95% Series due February 1, 1995 20,000,000 None
8.40% Collateral Series due December 1, 1992 12,600,000 None
11.11% Series due July 15, 1994 18,000,000 None
11.14% Series due July 15, 1995 10,000,000 None
11.18% Series due July 15, 1996 26,000,000 None
11.20% Series due July 15, 1997 46,000,000 None
9.90% Series due April 1, 1994 30,000,000 None
5.95% Series due October 15, 1995 15,000,000 None
6.95% Series due July 15, 1997 50,000,000 None
8.65% Series due January 15, 2023 125,000,000 125,000,000
7.70% Series due July 15, 2023 60,000,000 60,000,000
6 5/8% Series due November 1, 2003 65,000,000 65,000,000
8.25% Series due July 1, 2004 25,000,000 25,000,000
8.80% Series due April 1, 2005 80,000,000 80,000,000
6 7/8% Series due June 1, 2002 65,000,000 65,000,000
; and
WHEREAS, Section 19.04 of the Original Indenture
provides, among other things, that any power, privilege or right
expressly or implicitly reserved to or in any way conferred upon
the Company by any provision of the Indenture, whether such
power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may
enter into any further covenants, limitations, restrictions or
provisions for the benefit of any one or more series of bonds
issued thereunder, or the Company may establish the terms and
provisions of any series of bonds by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to be
recorded in all of the states in which any property at the time
subject to the Lien of the Indenture shall be situated; and
WHEREAS, the Company desires to create a new series of
bonds under the Indenture and to add to its covenants and
agreements contained in the Indenture certain other covenants and
agreements to be observed by it; and
WHEREAS, all things necessary to make this Twelfth
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE
WITNESSETH: That the Company, in consideration of the premises
and of Ten Dollars ($10) to it duly paid by the Trustees at or
before the unsealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to further secure
the payment of both the principal of and interest on the bonds
from time to time issued under the Indenture, according to their
tenor and effect and the performance of all provisions of the
Indenture and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, hypothecates,
affects, pledges, sets over and confirms a security interest in
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture), unto ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and (to
the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, as Trustees,
and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all properties
of the Company real, personal and mixed, of any kind or nature
(except as in the Indenture expressly excepted), now owned
(including, but not limited to, that located in the following
counties in the State of Mississippi: ▇▇▇▇▇, Amite, Attala,
Bolivar, Calhoun, Carroll, Choctaw, Claiborne, Coahoma, Copiah,
Covington, DeSoto, Franklin, Grenada, ▇▇▇▇▇, Holmes, Humphreys,
Issaquena, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Davis, Lawrence, Leake, Leflore,
Lincoln, Madison, Montgomery, Panola, Pike, Quitman, Rankin,
Scott, Sharkey, Simpson, Smith, Sunflower, Tallahatchie, ▇▇▇▇,
Tunica, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Washington, Webster, Wilkinson,
Yalobusha and Yazoo; and in Independence County, Arkansas, and
▇▇▇▇▇▇▇▇ County, Wyoming) or, subject to the provisions of
Section 15.03 of the Original Indenture, hereafter acquired by
the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anyway limiting or impairing by
the enumeration of the same, the scope and intent of the
foregoing or of any general description contained in the
Indenture) all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same; all power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, dams, dam sites,
aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam,
water and/or other power; all power houses, street lighting
systems, standards and other equipment incidental thereto; all
telephone, radio and television systems, air conditioning systems
and equipment incidental thereto, water wheels, water works,
water systems, steam heat and hot water plants, substations,
electric, gas and water lines, service and supply systems,
bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the
equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and
(except as in the Indenture expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property in the Indenture
described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anyway appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any in the
Indenture expressly excepted, shall be and are as fully granted
and conveyed by the Indenture and as fully embraced within the
Lien of the Indenture as if such property, rights and franchises
were now owned by the Company and were specifically described by
the Indenture and granted and conveyed by the Indenture.
PROVIDED that the following are not and are not
intended to be now or hereafter granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged,
hypothecated, affected, pledged, set over or confirmed hereunder,
nor is a security interest therein hereby granted or intended to
be granted, and the same are hereby expressly excepted from the
Lien and operation of the Indenture, viz: (1) cash, shares of
stock, bonds, notes and other obligations and other securities
not in the Indenture specifically pledged, paid, deposited,
delivered or held under the Indenture or covenanted so to be; (2)
merchandise, equipment, apparatus, materials or supplies held for
the purpose of sale or other disposition in the usual course of
business or for the purpose of repairing or replacing (in whole
or part) any rolling stock, buses, motor coaches, automobiles or
other vehicles or aircraft or boats, ships, or other vessels and
any fuel, oil and similar materials and supplies consumable in
the operation of any of the properties of the Company; rolling
stock, buses, motor coaches, automobiles and other vehicles and
all aircraft; boats, ships and other vessels; all timber,
minerals, mineral rights and royalties; (3) bills, notes and
other instruments and accounts receivable, judgments, demands and
choses in action, and all contracts, leases and operating
agreements not specifically pledged under the Indenture or
covenanted so to be; (4) the last day of the term of any lease or
leasehold which may hereafter become subject to the Lien of the
Indenture; (5) electric energy, gas, water, steam, ice, and other
materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the
ordinary course of its business; (6) any natural gas ▇▇▇▇▇ or
natural gas leases or natural gas transportation lines or other
works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system, and any natural gas distribution
system; and (7) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly
excepted from the Lien and operation of the Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XII of the Original
Indenture by reason of the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed or in which a security interest
has been granted by the Company as aforesaid, or intended so to
be (subject, however, to Excepted Encumbrances as defined in
Section 1.06 of the Original Indenture), unto ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
and (to the extent of its legal capacity to hold the same for the
purposes hereof) unto BANK OF MONTREAL TRUST COMPANY, and their
successors and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Indenture set forth, for the equal pro rata benefit and security
of all and each of the bonds and coupons issued and to be issued
under the Indenture, or any of them, in accordance with the terms
of the Indenture, without preference, priority or distinction as
to the Lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject to the
provisions in the Indenture set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being
intended that, subject as aforesaid, the Lien and security of all
of said bonds and coupons of all series issued or to be issued
under the Indenture shall take effect from the date of the
initial issuance of bonds under the Indenture, and that the Lien
and security of the Indenture shall take effect from said date as
though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date.
PROVIDED, HOWEVER, these presents are upon the
condition that if the Company, its successors or assigns, shall
pay or cause to be paid, the principal of and interest on said
bonds, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or
to become due thereon for principal and interest, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by it, then the Indenture and the estate and rights
granted under the Indenture shall cease, determine and be void,
otherwise to be and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by the
Company that all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to
the property hereinbefore described and conveyed and to the
estate, rights, obligations and duties of the Company and the
Trustees and their successor or successors as Trustees in such
trust in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the
execution of the Original Indenture and had been specifically and
at length described in and conveyed to said Trustees by the
Original Indenture as a part of the property therein stated to be
conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in such trust as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture. All
defined terms used in this Twelfth Supplemental Indenture and not
otherwise defined herein shall have the respective meanings
ascribed to them in the Original Indenture.
Section 1.02. Certain Defined Terms. As used in this
Twelfth Supplemental Indenture, the following defined terms shall
have the respective meanings specified unless the context clearly
requires otherwise:
The term "Adjusted Treasury Rate" shall mean, with
respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption date, plus
0.125%.
The term "Business Day" shall mean any day other than a
Saturday or a Sunday or a day on which banking institutions in
The City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate
Trust Office of the Trustee is closed for business.
The term "Comparable Treasury Issue" shall mean the
United States Treasury security selected by a Quotation Agent as
having a maturity comparable to the remaining term of the bonds
of the Seventeenth Series that would be utilized, at the time of
the selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such bonds of the
Seventeenth Series.
The term "Comparable Treasury Price" shall mean, with
respect to any redemption date, (i) the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such Business Day, (A) the average of
the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations or (B) if the Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
The term "Original Indenture" shall have the meaning
specified in the first paragraph hereof.
The term "Person" shall mean any individual,
corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
The term "Quotation Agent" shall mean one of the
Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
The term "Rate Order" shall mean the Final Order on
Rehearing, dated September 16, 1985, as amended by further orders
dated, respectively, September 29, 1988 and September 7, 1989,
issued by the Mississippi Public Service Commission providing
for, among other things, the recovery by the Company of Deferred
Grand Gulf I Costs.
The term "Reference Treasury Dealer" shall mean ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, and Salomon
Brothers Inc and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer or any other Primary Treasury Dealer
selected by the Trustee after consultation with the Company.
The term "Reference Treasury Dealer Quotations" shall
mean, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
The term "Seventeenth Series" shall have the meaning
specified in Section 2.01.
The term "System Energy" shall mean System Energy
Resources, Inc., an Arkansas corporation, or any successor
company to which the Company shall be obligated to purchase
capacity and energy from Grand Gulf I.
Section 1.03. References Are to Twelfth Supplemental
Indenture . Unless the context otherwise requires, all
references herein to "Articles", "Sections" and other
subdivisions refer to the corresponding Articles, Sections and
other subdivisions of this Twelfth Supplemental Indenture, and
the words "herein", "hereof", "hereby", "hereunder" and words of
similar import refer to this Twelfth Supplemental Indenture as a
whole and not to any particular Article, Section or other
subdivision hereof or to the Original Indenture or any other
supplemental indenture thereto.
Section 1.04. Number and Gender. Unless the context
otherwise requires, defined terms in the singular include the
plural, and in the plural include the singular. The use of a word
of any gender shall include all genders.
ARTICLE II
THE SEVENTEENTH SERIES
Section 2.01. Bonds of the Seventeenth Series. There
shall be a series of bonds designated as the 6.45% Series due
April 1, 2008 (herein sometimes referred to as the "Seventeenth
Series"), each of which shall also bear the descriptive title
"General and Refunding Mortgage Bond" unless subsequent to the
issuance of such bonds a different descriptive title is permitted
by Section 2.01 of the Original Indenture. The form of bonds of
the Seventeenth Series shall be substantially in the form of
Exhibit A hereto. Bonds of the Seventeenth Series shall mature
on April 1, 2008 and shall be issued only as fully registered
bonds in denominations of One Thousand Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof). Bonds of the Seventeenth Series shall bear
interest at the rate of six and forty-five one hundredths per
centum (6.45%) per annum (except as hereinafter provided),
payable semi-annually on April 1 and October 1 of each year, and
at maturity or earlier redemption, the first interest payment to
be made on October 1, 1998 for the period from April 1, 1998 to
October 1, 1998; the principal of and premium, if any, and
interest on each said bond to be payable at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts. Interest on the bonds of the Seventeenth Series
may at the option of the Company be paid by check mailed to the
registered owners thereof. Overdue principal and overdue
interest in respect of the bonds of the Seventeenth Series shall
bear interest (before and after judgment) at the rate of seven
and forty-five one hundredths per centum (7.45%) per annum.
Interest on the bonds of the Seventeenth Series shall be computed
on the basis of a 360-day year consisting of twelve 30-day
months. Interest on the bonds of the Seventeenth Series in
respect of a portion of a month shall be calculated based on the
actual number of days elapsed.
The Company reserves the right to establish at any
time, by Resolution of the Board of Directors of the Company, a
form of coupon bond, and of appurtenant coupons, for the
Seventeenth Series and to provide for exchangeability of such
coupon bonds with the bonds of said Series issued hereunder in
fully registered form and to make all appropriate provisions for
such purpose.
Section 2.02. Optional Redemption of Bonds of the
Seventeenth Series. (a) Bonds of the Seventeenth Series shall be
redeemable, at the option of the Company, in whole, or in part,
at any time, prior to maturity, upon notice mailed to each
registered owner at his last address appearing on the registry
books not less than 30 days nor more than 60 days prior to the
date fixed for redemption, (i) prior to April 1, 2003 at a
redemption price equal to the greater of (A) 100% of the
principal amount thereof and (B) as determined by a Quotation
Agent, the sum of the present values of (x) the product of the
principal amount of the bonds of the Seventeenth Series called
for redemption multiplied by the general redemption price which
would apply to a redemption of the bonds of the Seventeenth
Series on April 1, 2003 and (y) the remaining scheduled interest
payments on such principal amount from the redemption date
through April 1, 2003, such present value to be determined on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) and using the Adjusted Treasury Rate as the
discount rate or (ii) on or after April 1, 2003, at the following
general redemption prices:
General
Redemption
Year Price (%)
If redeemed during the 12-month period ending March 31,
2004 102.06
2005 101.37
2006 100.68
2007 100.00
2008 100.00
in the case of clauses (i) and (ii) above, plus accrued
interest thereon to the redemption date. With respect
to clause (i) above, if such redemption date is not an
interest payment date, the amount of the next
succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to
such redemption date.
(b) Bonds of the Seventeenth Series shall also be redeemable in
whole or in part, at any time prior to maturity, upon like
notice, by the application (either at the option of the Company
or pursuant to the requirements of the Original Indenture) of
cash delivered to or deposited with the Trustee pursuant to the
provisions of Sections 9.05 and 11.06 of the Original Indenture,
at the special redemption price of 100%, expressed as a
percentage of the principal amount of the bonds to be redeemed,
together with accrued interest to the date fixed for redemption.
Section 2.03. Transfer and Exchange. (a) At the
option of the registered owner, any bonds of the Seventeenth
Series, upon surrender thereof for cancellation at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, New York, shall be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized
denominations.
(b) Bonds of the Seventeenth Series shall be
transferable, upon the surrender thereof for cancellation,
together with a written instrument of transfer in form approved
by the registrar duly executed by the registered owner or by his
duly authorized attorney, at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York.
(c) Upon any such exchange or transfer of bonds of the
Seventeenth Series, the Company may make a charge therefor
sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 2.05 of the Original
Indenture, but the Company hereby waives any right to make a
charge in addition thereto for any such exchange or transfer of
bonds of the Seventeenth Series.
Section 2.04. Dating of Bonds and Interest Payments.
(a) Each bond of the Seventeenth Series shall be
dated as of the date of authentication and shall bear interest
from the last preceding interest payment date to which interest
shall have been paid (unless the date of such bond is an interest
payment date to which interest is paid, in which case from the
date of such bond); provided that each bond of the Seventeenth
Series dated prior to October 1, 1998, shall bear interest from
April 1, 1998; and provided, further, that if any bond of the
Seventeenth Series shall be authenticated and delivered upon a
transfer of, or in exchange for or in lieu of, any other bond or
bonds of the Seventeenth Series upon which interest is in
default, it shall be dated so that such bond shall bear interest
from the last preceding date to which interest shall have been
paid on the bond or bonds in respect of which such bond shall
have been delivered or from April 1, 1998 if no interest shall
have been paid on the bonds of the Seventeenth Series.
(b) Notwithstanding the foregoing, bonds of the
Seventeenth Series shall be dated so that the Person in whose
name any bond of the Seventeenth Series is registered at the
close of business on any record date for the Seventeenth Series
with respect to any interest payment shall be entitled to receive
the interest payable on the interest payment date, except if, and
to the extent that, the Company shall have defaulted in the
payment of the interest due on such interest payment date, in
which case such defaulted interest shall be paid to the Persons
in whose names Outstanding bonds of the Seventeenth Series are
registered on the day immediately preceding the date of payment
of such defaulted interest. The term "record date for the
Seventeenth Series," as used with respect to any interest payment
date, shall mean the day immediately preceding such interest
payment date, whether or not a business day.
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent. So long as
any bonds of the Seventeenth Series are Outstanding, the Company
covenants that the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York where the principal
of and premium, if any, or interest on any bonds of such series
shall be payable shall also be an office or agency where any such
bonds may be transferred or exchanged and where notices,
presentations or demands to or upon the Company in respect of
such bonds or in respect of the Indenture may be given or made.
Section 3.02. Further Assurances. From time to time
whenever reasonably requested by the Trustee or the holders of
not less than a majority in aggregate principal amount of the
bonds of the Seventeenth Series then Outstanding, the Company
will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and
assurances as may be reasonably necessary or proper to carry out
the intention of or to facilitate the performance of the terms of
the Indenture or to secure the rights and remedies of the holders
of such bonds.
Section 3.03. Limitation on Restricted Payments.
(a) So long as any bonds of the Seventeenth Series are
Outstanding, the Company covenants that it will not declare any
dividends on its common stock (other than (1) a dividend payable
solely in shares of its common stock or (2) a dividend payable in
cash in cases where, concurrently with the payment of such
dividend, an amount in cash equal to such dividend is received by
the Company as a capital contribution or as the proceeds of the
issue and sale of shares of its common stock) or make any
distribution on outstanding shares of its common stock or
purchase or otherwise acquire for value any outstanding shares of
its common stock (otherwise than in exchange for or out of the
proceeds from the sale of other shares of its common stock)
unless, after giving effect to such dividend, distribution,
purchase or acquisition, the aggregate amount of such dividends,
distributions, purchases or acquisitions paid or made subsequent
to March 31, 1998 (other than any dividend declared by the
Company on or before March 31, 1998) does not exceed (without
giving effect to (1) any such dividends, distributions, purchases
or acquisitions or (2) any net transfers from earned surplus to
stated capital accounts) the sum of (A) the aggregate amount
credited subsequent to March 31, 1998 to earned surplus, (B)
$250,000,000 and (C) such additional amounts as shall be
authorized or approved, upon application by the Company and after
notice, by the SEC under the Holding Company Act.
(b) For the purpose of this Section, the aggregate
amount credited subsequent to March 31, 1998 to earned surplus
shall be determined in accordance with generally accepted
accounting principles and practices (or, if in the opinion of the
Company's independent public accountants (delivered to the
Trustee), there is an absence of any such generally accepted
accounting principles and practices as to the determination in
question, then in accordance with sound accounting practices) and
after making provision for dividends upon any preferred stock of
the Company accumulated subsequent to such date, and in addition
there shall be deducted from earned surplus all amounts (without
duplication) of losses, write-offs, write-downs or amortization
of property, whether extraordinary or otherwise, recorded in and
applicable to a period or periods subsequent to March 31, 1998.
Also for purposes of this Section, credits to earned surplus
shall be determined without reference to and shall not include
undistributed retained earnings of Subsidiaries.
Section 3.04. Protection of Rate Order. So long as
any bonds are Outstanding under the Indenture that were issued
under Article IV of the Original Indenture, the Company covenants
that it will:
(a) take all reasonable actions (i) to maintain in
full force and effect the Rate Order or any other regulatory
authorization or legal or other authority pursuant to which the
Company recovers amounts paid to System Energy in respect of
capacity and energy from Grand Gulf I and records Deferred Grand
Gulf I Costs on its books as assets and (ii) to defend against
any action, suit or regulatory proceeding seeking to abrogate,
invalidate or materially adversely modify the Rate Order or such
regulatory authorization or legal or other authority; and
(b) not take any action to modify the Rate Order or
such other regulatory authorization or legal or other authority
unless it first delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that, in the opinion of
the signers, such proposed modification is not materially adverse
to the interest of the registered owners of Outstanding bonds
that were issued under Article IV of the Original Indenture.
Section 3.05. Limitation on Sale, Transfer or Pledge
of Deferred Grand Gulf I Costs. So long as any Bonds are Out
standing under the Indenture that were issued under Article IV of
the Original Indenture, the Company covenants that it will not
sell, assign, transfer or otherwise dispose of, or grant, incur
or permit to exist any Lien on, any of its Deferred Grand Gulf I
Costs, other than the Lien of the Indenture or as may be contem
plated by the granting clauses of the 1944 Mortgage as of the
date of this Twelfth Supplemental Indenture.
Section 3.06. Preconsent to Modification of Rights
under Sections 3.04 and 3.05. The Holders of the bonds of the
Seventeenth Series hereby consent to any modification of the Rate
Order or any other act, disposition, Lien or thing prohibited or
limited by Sections 3.04 or 3.05 of this Twelfth Supplemental
Indenture or the failure to take any action required by such
Sections or the waiver or amendment of any provision of such
Sections if the Company obtains the consent (in any number of
instruments of similar tenor executed by registered owners of
bonds or by their attorneys appointed in writing) to such
modification, act, omission, disposition, Lien, thing, failure to
act, waiver or amendment of the registered owners of at least a
majority in aggregate principal amount of the bonds then
Outstanding under the Indenture that were issued under Article IV
of the Original Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts. The Trustees
hereby accept the trusts herein declared, provided, created or
supplemented and agree to perform the same upon the terms and
conditions herein and in the Original Indenture, as heretofore
supplemented, set forth and upon the following terms and
conditions:
The Trustees shall not be responsible in any
manner whatsoever for or in respect of the validity or
sufficiency of this Twelfth Supplemental Indenture or
for or in respect of the recitals contained herein, all
of which recitals are made solely by the Company. In
general, each and every term and condition contained in
Article XVI of the Original Indenture shall apply to
and form part of this Twelfth Supplemental Indenture
with the same force and effect as if the same were
herein set forth in full with such omissions,
variations and insertions, if any, as may be
appropriate to make the same conform to the provisions
of this Twelfth Supplemental Indenture.
Section 4.02. Effect of Twelfth Supplemental Indenture
under Louisiana Law. It is the intention and it is hereby agreed
that, so far as concerns that portion of the Mortgaged and
Pledged Property situated within the State of Louisiana, the
general language of conveyance contained in this Twelfth
Supplemental Indenture is intended and shall be construed as
words of hypothecation and not of conveyance and that, so far as
the said Louisiana property is concerned, this Twelfth
Supplemental Indenture shall be considered as an act of mortgage
and pledge under the laws of the State of Louisiana, and the
Trustees herein named are named as mortgagee and pledgee in trust
for the benefit of themselves and of all present and future
holders of the bonds of the Seventeenth Series and any coupons
thereto issued hereunder, and are irrevocably appointed special
agents and representatives of the holders of the bonds and
coupons issued hereunder and vested with full power in their
behalf to effect and enforce the mortgage and pledge hereby
constituted for their benefit, or otherwise to act as herein
provided for.
Section 4.03. Record Date. The holders of the bonds
of the Seventeenth Series shall be deemed to have consented and
agreed that the Company may, but shall not be obligated to, fix a
record date for the purpose of determining the holders of the
bonds of the Seventeenth Series entitled to consent to any
amendment or supplement to the Indenture or the waiver of any
provision thereof or any act to be performed thereunder. If a
record date is fixed, those persons who were holders at such
record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be holders after such
record date. No such consent shall be valid or effective for
more than 90 days after such record date.
Section 4.04. Titles. The titles of the several
Articles and Sections of this Twelfth Supplemental Indenture and
the table of contents shall not be deemed to be any part hereof.
Section 4.05. Counterparts. This Twelfth Supplemental
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 4.06. Governing Law. The internal laws of the
State of New York shall govern this Twelfth Supplemental
Indenture and the bonds of the Seventeenth Series, except to the
extent that the validity or perfection of the Lien of the
Indenture, or remedies thereunder, are governed by the laws of a
jurisdiction other than the State of New York.
IN WITNESS WHEREOF, ENTERGY MISSISSIPPI, INC. has caused its
corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its Chairman of the Board, Chief Executive
Officer, President or one of its Vice Presidents, and its
corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and BANK OF MONTREAL
TRUST COMPANY has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of
its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant Vice
Presidents or Assistant Secretaries, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
ENTERGY MISSISSIPPI, INC.
By:
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President, Chief Accounting Officer
and Assistant Secretary
Attest:
__________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. Screen
Assistant Secretary
BANK OF MONTREAL TRUST COMPANY
as Trustee
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Attest:
_____________________________
___________________________[L.S.]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
as Co-Trustee
STATE OF LOUISIANA ) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned authority
in and for the aforesaid Parish and State, the within named ▇▇▇▇▇
▇. ▇▇▇▇, Vice President, Chief Accounting Officer
and Assistant Secretary and ▇▇▇▇▇▇▇▇▇▇▇ ▇. Screen, Assistant
Secretary of ENTERGY MISSISSIPPI, INC., who acknowledged that
they signed, attached the corporate seal of the corporation
thereto and delivered the foregoing instrument on the day and
year therein stated, by the authority and as the act and deed of
the corporation.
On the 3rd day of April, before me personally came ▇▇▇▇▇
▇. ▇▇▇▇, to be known to me, who, being by me duly sworn, did
depose and say that he resides at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; that he is the Vice President, Chief
Accounting Officer and Assistant Secretary of ENTERGY MISSISSIPPI,
INC., the corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that
he signed his name thereto by like order.
Given under my hand and seal this 3rd day of April,
1998.
_________________________________
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as Vice President, and , as
of BANK OF MONTREAL TRUST COMPANY, who acknowledged
that they signed, attached the corporate seal of the corporation
thereto and delivered the foregoing instrument on the day and
year therein stated, by the authority and as the act and deed of
the corporation.
On the _____ day of April 1998, before me personally
came to me known, who, being by me duly sworn, did
depose and say that she resides at ▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; that she is a Vice President of BANK
OF MONTREAL TRUST COMPANY, the corporation described in and which
executed the above instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that she signed her name
thereto by like order.
Given under my hand and seal this _____ day of April,
1998.
_________________________________
Notary Public, State of New York
No.
Qualified in New York County
Commission Expires __________
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, who acknowledged that he signed, sealed
and delivered the foregoing instrument on the day and year
therein mentioned.
On the _____ day of April, 1998, before me personally
came ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, to me known to be the person described
in and who acknowledged the foregoing instrument, and
acknowledged that he executed the same.
Given under my hand and seal this _____ day of April,
1998.
_________________________________
Notary Public, State of New York
No.
Qualified in New York County
Commission Expires __________
EXHIBIT A
[FORM OF BOND OF SEVENTEENTH SERIES]
(See legend at the end of this bond for
restrictions on transferability and change of form)
GENERAL AND REFUNDING MORTGAGE BOND
6.45% Series due April 1, 2008
No. R-1 CUSIP______
ENTERGY MISSISSIPPI, INC., (formerly Mississippi Power
& Light Company) a corporation duly organized and validly
existing under the laws of the State of Mississippi (hereinafter
called the Company), for value received, hereby promises to pay
to __________ or registered assigns, at the office or agency of
the Company in New York, New York, the principal sum of $_______
on April 1, 2008 in such coin or currency of the United States of
America as at the time of payment is legal tender for public and
private debts, and to pay in like manner to the registered owner
hereof interest thereon from April 1, 1998, if the date of this
bond is prior to October 1, 1998 or, if the date of this bond is
on or after October 1, 1998, from the April 1 or October 1
immediately preceding the date of this bond to which interest has
been paid (unless the date hereof is an interest payment date to
which interest has been paid, in which case from the date
hereof), at the rate of six and forty-five one hundredths (6.45%)
per annum in like coin or currency on April 1 and October 1 in
each year and at maturity or earlier redemption, until the
principal of this bond shall have become due and been duly paid
or provided for, and to pay interest (before and after judgment)
on any overdue principal, premium, if any, and on any defaulted
interest at the rate of seven and forty-five one hundredths per
centum (7.45%) per annum. Interest on this bond shall be
computed on the basis of a 360-day year consisting of twelve 30-
day months. Interest on this bond in respect of a portion of a
month shall be calculated based on the actual number of days
elapsed.
The interest so payable on any interest payment date
will, subject to certain exceptions provided in the Mortgage
hereinafter referred to, be paid to the person in whose name this
bond is registered at the close of business (whether or not a
business day) on the day immediately preceding such interest
payment date. At the option of the Company, interest may be paid
by check mailed on or prior to such interest payment date to the
address of the person entitled thereto as such address shall
appear on the register of the Company.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor or successors thereunder, shall have signed
the authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, 6.45% Series due
April 1, 2008 (herein called bonds of the Seventeenth Series),
all bonds of all series issued under and equally secured by a
Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, called the Mortgage), dated as of February
1, 1988, duly executed by the Company to Bank of Montreal Trust
Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (successor to Z. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇), as Trustees. Reference is made to the Mortgage for a
description of the mortgaged and pledged property, assets and
rights, the nature and extent of the lien and security, the
respective rights, limitations of rights, covenants, obligations,
duties and immunities thereunder of the Company, the holders of
bonds and the Trustees and the terms and conditions upon which
the bonds are, and are to be, secured, the circumstances under
which additional bonds may be issued and the definition of
certain terms herein used, to all of which, by its acceptance of
this bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the Seventeenth Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond
(unless effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this bond in
the manner, at the respective times, at the rate and in the
currency herein prescribed.
The bonds are issuable as registered bonds without
coupons in the denominations of $1000.00 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is
transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company as
provided in the Mortgage.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has
caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his or her signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof.
Dated:
ENTERGY MISSISSIPPI, INC.
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Chief Accounting Officer
and Assistant Secretary
Attest:
__________________________
Title:
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST
COMPANY, as Trustee,
By: ________________________
Authorized Signature
LEGEND
Unless and until this bond is exchanged in whole or in part
for certificated bonds registered in the names of the various
beneficial holders hereof as then certified to the Trustee by The
Depository Trust Company or its successor (the "Depositary"),
this bond may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of _________,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to _______, or such other name, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, ________, has an
interest herein.
This bond may be exchanged for certificated bonds registered
in the names of the various beneficial owners hereof if (a) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the
Company by the Depositary).
Financial Guaranty Insurance Policy No. FG0281BE (the
"Policy") with respect to payments due for principal of and
interest on this bond has been issued by Ambac Assurance
Corporation ("Ambac Assurance"). The Policy has been delivered
to the United States Trust Company of New York, New York, New
York, as the Insurance Trustee under said Policy and will be held
by such Insurance Trustee or any successor insurance trustee.
The Policy is on file and available for inspection at the
principal office of the Insurance Trustee and a copy thereof may
be secured from Ambac Assurance or the Insurance Trustee. All
payments required to be made under the Policy shall be made in
accordance with the provisions thereof. The owner of this bond
acknowledges and consents to the subrogation rights of Ambac
Assurance as more fully set forth in the Policy.