EXHIBIT A-2
MISSISSIPPI POWER & LIGHT COMPANY
to
BANK OF MONTREAL TRUST COMPANY
and
XXXX X. XXXXXXXXXX,
(successor to Z. Xxxxxx Xxxxxxxxx)
As Trustees under Mississippi
Power & Light Company's Mortgage and
Deed of Trust, dated as of February 1, 1988
________________________________
______________ SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds
____% Series due _______________
________________
Dated as of ________________
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 5
Section 1.02. Certain Defined Terms 5
Section 1.03. References Are to Supplemental
Indenture 6
Section 1.04. Number and Gender 6
ARTICLE II
THE ______________ SERIES
Section 2.01. Bonds of the ___________ Series 6
Section 2.02. Optional Redemption of Bonds of the
Series 7
Section 2.03. Transfer and Exchange 7
Section 2.04. Dating of Bonds and Interest
Payments 8
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 8
Section 3.02. Further Assurances 9
Section 3.03. Limitation on Restricted Payments 9
Section 3.04. Protection of Rate Order 9
Section 3.05. Limitation on Sale, Transfer or
Pledge of Deferred Grand Gulf I Costs 10
Section 3.06. Preconsent to Modification of
Rights under Sections 3.04 and 3.05 10
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts 10
Section 4.02. Effect of Supplemental Indenture
under Louisiana Law 10
Section 4.03. Record Date 11
Section 4.05. Counterparts 11
Section 4.06. Governing Law 11
Signatures 12
Acknowledgments 14
Exhibit A - Form of Bond of ______________ Series A-1
____________ SUPPLEMENTAL INDENTURE
_________________________
___________ SUPPLEMENTAL INDENTURE, dated as of
___________, between MISSISSIPPI POWER & LIGHT COMPANY, a
corporation of the State of Mississippi, whose post office
address is X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxx 00000-0000 (tel.
000-000-0000) (the "Company") and BANK OF MONTREAL TRUST COMPANY,
a corporation of the State of New York, whose principal office is
located at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (tel. 212-
000-0000) and XXXX X. XXXXXXXXXX (successor to Z. Xxxxxx
Xxxxxxxxx), whose post office address is 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (tel. 000-000-0000), 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 and its Seventh
Supplemental Indenture dated as of July 15, 1993, 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
Amount Amount
Series 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 $26,000,000
11.20% Series due July 15, 1997 $46,000,000 $46,000,000
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 50,000,000
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_ 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
; and
WHEREAS, Section 19.04 of the Original Indenture
provides, among other things, that any power, privilege or right
expressly or impliedly 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 ________ 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 ___________
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;
______________________
Here will be inserted additional outstanding series of
bonds.
NOW, THEREFORE, THIS ___________ 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 ensealing 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 XXXX X. XXXXXXXXXX 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: Xxxxx, Amite, Attala,
Bolivar, Calhoun, Carroll, Choctaw, Claiborne, Coahoma, Copiah,
Covington, DeSoto, Franklin, Grenada, Xxxxx, Holmes, Humphreys,
Issaquena, Xxxxxxxxx, Xxxxxxxxx Davis, Lawrence, Leake, Leflore,
Lincoln, Madison, Montgomery, Panola, Pike, Quitman, Rankin,
Scott, Sharkey, Simpson, Smith, Sunflower, Tallahatchie, Xxxx,
Tunica, Xxxxxxxx, Xxxxxx, Washington, Webster, Wilkinson,
Yalobusha and Yazoo; and in Independence County, Arkansas, and
Xxxxxxxx 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 anywise 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 anywise 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 xxxxx 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 XXXX X. XXXXXXXXXX
and to the extent of its legal capacity to hold the same for the
purposes hereof) to 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:
DEFINITIONS AND RULES OF CONSTRUCTION
Terms From the Original Indenture. All defined terms
used in this __________ Supplemental Indenture and not otherwise
defined herein shall have the respective meanings ascribed to
them in the Original Indenture.
Certain Defined Terms. As used in this
Supplemental Indenture, the following defined terms shall have
the respective meanings specified unless the context clearly
requires otherwise:
The term "Original Indenture" shall have the meaning
specified in the first paragraph hereof.
The term "Person" shall mean any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
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 "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.
The term " Series" shall have the meaning
specified in Section 2.01.
References Are to 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 ______________
Supplemental Indenture, and the words "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this
___________ 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.
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.
THE ______________ SERIES
Bonds of the __________ Series. There shall be a
series of bonds designated as the ____% Series due
_______________ (herein sometimes referred to as the "__________
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 __________ Series shall be substantially in the form of
Exhibit A hereto. Bonds of the _____________ Series shall mature
on ________________, 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 ______________ Series shall bear
interest at the rate of per centum (_____%) per annum (except as
hereinafter provided), payable semi-annually on _____________ and
__________ of each year, and at maturity, commencing
_____________; the principal 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 _____________ 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 __________ Series shall bear interest (before and after
judgment) at the rate of _______________________ per centum
(____%) per annum. Interest on the bonds of the __________
Series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest on the bonds of the
_____________ 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
_________ 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.
____________________
This paragraph may be inserted in one or more subsequent
supplemental indentures.
Optional Redemption of Bonds of the Series. (a) Bonds
of the ____________ Series shall not be redeemable prior to
____________. On and after ________________, bonds of the
_____________ Series shall be redeemable, at the option of the
Company, in whole at any time, or in part from time to 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 prior to the date fixed for redemption, at the following
general redemption prices, expressed in percentages of the
principal amount of the bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during 12 month period ending __________
[HERE WILL BE INSERTED A TABLE OF GENERAL REDEMPTION PRICES.]
in each case together with accrued interest to the date fixed for
redemption.
(a) On and after ______________, bonds of the _________
Series shall also be redeemable in whole at any time, or in part
from time to 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
Section 9.05 of the Original Indenture or subject to the
provisions of Section 11.05 of the Original Indenture at the
following special redemption prices, expressed in percentages of
the principal amount of the bonds to be redeemed:
SPECIAL REDEMPTION PRICES
If redeemed during 12 month period ending ____________,
[HERE WILL BE INSERTED A TABLE OF SPECIAL REDEMPTION PRICES.]
in each case together with accrued interest to the date fixed for
redemption.
Transfer and Exchange. (a) At the option of the
registered owner, any bonds of the ___________ 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.
(a) Bonds of the __________ 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.
(b) Upon any such exchange or transfer of bonds of the
_____________ 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 ___________ Series.
Dating of Bonds and Interest Payments. (a) Bonds
of the ___________ Series shall be dated and bear interest from
the date of issuance, provided that if any bond of the
____________ 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 __________ Series, 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 the date of
issuance if authenticated and delivered prior to July 15, 1993.
(c) Notwithstanding the foregoing, bonds of the ___________
Series shall be dated so that the Person in whose name any bond
of the __________ Series is registered at the close of business
on any record date for the __________ Series with respect to any
interest payment shall be entitled to receive the interest
payable on the interest payment date notwithstanding the
cancellation of such bond upon any transfer or exchange thereof
subsequent to the record date of the ___________ Series and prior
to such interest payment date, except if, and to the extent that,
the Company shall default 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 ___________ Series are registered on the day immediately
preceding the date of payment of such defaulted interest. Any
bond of the ___________ Series issued upon any transfer or
exchange subsequent to the record date for the
Series for any interest payment date and prior to such interest
payment date shall bear interest from such interest payment date.
The term "record date for the ____________ Series", as used with
respect to any interest payment date, shall mean the 14th day of
the month, whether or not a business day, in which such interest
payment date occurs.
COVENANTS
Maintenance of Paying Agent. So long as any bonds of
the __________ 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 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.
Further Assurances. From time to time whenever
reasonably requested by the Trustee or the holders of not less
than a majority in principal amount of the ____________ Series
Bonds 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.
Limitation on Restricted Payments. (a) So long
as any bonds of the __________ 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 such
dividend, distribution, purchase or acquisition, the aggregate
amount of such dividends, distributions, purchases or
acquisitions paid or made subsequent to _______________ (other
than any dividend declared by the Company on or before
___________) 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
______________ 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.
(a) For the purpose of this Section, the aggregate amount
credited subsequent to _____________ 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 period subsequent to ______________.
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.
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:
(b) 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
(c) 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.
Limitation on Sale, Transfer or Pledge of Deferred
Grand Gulf I Costs. 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 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 contemplated by the
granting clauses of the 1944 Mortgage as of the date of this
Sixth Supplemental Indenture.
Preconsent to Modification of Rights under Sections
3.04 and 3.05. The Holders of the bonds of the ________ 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 __________ 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.
MISCELLANEOUS PROVISIONS
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 __________ Supplemental Indenture or for or in
respect of the recitals contained herein, all of which
recitals are made by the Company solely. In general, each
and every term and condition contained in Article XVI of the
Original Indenture shall apply to and form part of this
____________ 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 Sixth Supplemental Indenture.
Effect of 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 _____________ 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 Sixth 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 bonds of the __________
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.
Record Date. The holders of the bonds of the
________ 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
_________ 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.
Titles. The titles of the several Articles and
Sections of this __________ Supplemental Indenture and the table
of contents shall not be deemed to be any part hereof.
Counterparts. This _________ 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.
Governing Law. The laws of the State of New York shall govern
this ___________ Supplemental Indenture and the bonds of the
__________ 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, MISSISSIPPI POWER & LIGHT COMPANY
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 XXXX X. XXXXXXXXXX has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
MISSISSIPPI POWER & LIGHT COMPANY
By:______________________________
________________
Vice President
Attest:
__________________________
_______________
Assistant Secretary
Executed, sealed and delivered by
MISSISSIPPI POWER AND LIGHT COMPANY
in the presence of:
_________________________________
_________________________________
BANK OF MONTREAL TRUST COMPANY
As Trustee
By:____________________________________
Name: ______________________________
Title: Vice President and Trust Officer
Attest:
_____________________________
Name: __________________
Title: Assistant Secretary
___________________________[L.S.]
XXXX X. XXXXXXXXXX as
Co-Trustee
Executed, sealed and delivered by
BANK OF MONTREAL TRUST COMPANY
and XXXX X. XXXXXXXXXX in the
presence of:
_________________________________
_________________________________
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 ______________, as __________ of MISSISSIPPI POWER & LIGHT
COMPANY, who acknowledged that he signed 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 th day of _______________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_________________________________________; that he is a
_______________ of MISSISSIPPI POWER & LIGHT COMPANY, 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 is 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 __th day of
________________.
____________________________
Notary Public
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 Assistant Secretary 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 __th day of ________________, before me
personally came ______________, to me known, who, being by me
duly sworn, did depose and say that he resides at
_______________________; that he is a Vice President and Trust
Officer of BANK OF MONTREAL TRUST COMPANY, 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 __th day of
__________________.
_________________________________
Notary Public
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 XXXX X. XXXXXXXXXX, who acknowledged that he signed, sealed
and delivered the foregoing instrument on the day and year
therein mentioned.
On the __th day of _____________, before me personally
came XXXX X. XXXXXXXXXX, 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 __th day of
____________.
_______________________________
Notary Public
EXHIBIT A
[FORM OF BOND OF _____________ SERIES]
[(see legend at the end
of this bond for restrictions on
transferability and change of form)]
GENERAL AND REFUNDING MORTGAGE BOND
____% Series due _____________
No. ______ $ ___________
MISSISSIPPI POWER & LIGHT COMPANY, a corporation duly
organized and validly existing 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 ____________ 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 the date hereof, if the date of this bond is prior to
____________ or, if the date of this bond is on or after
____________, from the ___________ or ____________ next 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
________________ per centum (_____%) per annum in like coin or
currency on ___________ and ____________ in each year and at
maturity, 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
___________________________ per centum (____%) 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 of the month in which such interest
payment occurs. 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 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, ____% Series due
_______________ (herein called bonds of the _____________
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
________________, duly executed by the Company to Bank of
Montreal Trust Company and Xxxx X. XxXxxxxxxx (successor to Z.
Xxxxxx Xxxxxxxxx), 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 __________ 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 $1,000 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
under certain circumstances in the manner and at such redemption
prices as are provided in the Mortgage. This bond is also
redeemable at the option of the owner upon the events, in the
manner and at such redemption price, as is specified 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, Mississippi Power & Light Company
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 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:
MISSISSIPPI POWER & LIGHT COMPANY
By:_____________________________________
Title:
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: ________________________________________
[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 Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., 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, Cede & Co., 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).]
