Exhibit B-6(c)
MISSISSIPPI BUSINESS FINANCE CORPORATION
and
SYSTEM ENERGY RESOURCES, INC.,
formerly Middle South Energy, Inc.
LOAN AGREEMENT
Dated as of May 15, 1999
Relating to $102,975,000 Pollution Control
Revenue Refunding Bonds
(System Energy Resources, Inc. Project)
Series 1999
THIS LOAN AGREEMENT, dated as of May 15, 1999, by and
between the MISSISSIPPI BUSINESS FINANCE CORPORATION, a public
corporation duly created and validly existing pursuant to the
Constitution and laws of the State of Mississippi (the "Issuer"),
authorized to exercise the powers conferred by the Act, and
SYSTEM ENERGY RESOURCES, INC., formerly Middle South Energy,
Inc., a corporation organized and existing under the laws of the
State of Arkansas and qualified and doing business as a foreign
corporation in the State of Mississippi (the "Company"),
evidencing the agreement of the parties hereto.
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as
follows (provided that in the performance of the agreements of
the Issuer herein contained, any obligation it may thereby incur
for the payment of money shall not be a general debt, liability
or obligation of the Issuer, or of the State of Mississippi or
any political subdivision thereof but shall be payable solely out
of the revenue and proceeds derived from this Agreement and the
Notes (hereinafter defined) and the sale of the Bonds referred to
herein).
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. "Act", "Additional Bonds", "Bond
Fund", "Bondholder", "Bonds", "Code", "Depositary Agreement",
"Government Obligations", "1954 Code", "Outstanding", "Project",
"Rebate Agreement" and "Trustee" have the same meanings given and
assigned to such words in Article I of the Indenture (hereinafter
defined).
Agreement
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
Event of Default
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
Indenture
"Indenture" means the Trust Indenture, dated as of May 15,
1999, relating to the Bonds, between the Issuer and the Trustee
pursuant to which the Bonds are authorized to be issued, and
including any indenture supplemental thereto.
Loan
"Loan" means the loan to be made by the Issuer to the
Company of the proceeds (which shall be deemed to include the
underwriting discount, if any, and original issue discount, if
any) of the sale of the Bonds, exclusive of any accrued interest
paid by the initial purchasers of the Bonds upon the delivery
thereof.
Notes
"Notes" means the non-negotiable promissory notes of the
Company issued pursuant to Section 3.2 of this Agreement, in the
form set forth in Exhibit A hereto.
Series A Bonds
"Series A Bonds" means the $39,500,000 (outstanding
principal amount) Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series A, dated as of December 1, 1983.
Series B Bonds
"Series B Bonds" means the $27,100,000 (outstanding
principal amount) Claiborne County, Mississippi Adjustable/Fixed
Rate Pollution Control Revenue Bonds (Middle South Energy, Inc.
Project) Series B, dated as of June 1, 1984.
Series 1995 Bonds
"Series 1995 Bonds" means $44,000,000 (outstanding principal
amount) Claiborne County, Mississippi Pollution Control Revenue
Refunding Bonds (System Energy Resources, Inc. Project) Series
1995, dated as of May 1, 1995.
Series 1999 Bonds
"Series 1999 Bonds" means the bonds authorized to be issued
under Section 2.02 of the Indenture.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS AND ADDITIONAL BONDS
SECTION 2.1. Acquisition and Completion of the Project. The
Company represents that the acquisition, installation and
construction of the Project have been completed.
SECTION 2.2. Issuance of Series 1999 Bonds; Additional
Bonds. In order to provide funds to currently refund all of the
outstanding Series A Bonds and all of the outstanding Series B
Bonds, and to provide funds to purchase the portion of the
outstanding Series 1995 Bonds validly tendered and accepted by
the Company for purchase in accordance with the Depositary
Agreement, the Issuer agrees that it will initially issue and
deliver the Series 1999 Bonds to the purchasers thereof at a
price to be approved in advance by the Company and apply and
deposit the proceeds thereof in accordance with the terms of the
Indenture. The Company has reviewed the Indenture and finds the
Indenture to be satisfactory in form and substance to the
Company.
If no Event of Default shall have occurred and be
continuing, the Issuer will authorize the sale of and use its
best efforts to sell from time to time, to the extent permitted
by law, Additional Bonds, in amounts specified by the Company and
upon the terms and conditions provided in the Indenture, for any
purpose permitted by the Indenture and the Act. The Issuer will
deposit the proceeds of any such Additional Bonds with the
Trustee in accordance with the terms of the Indenture.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to
make the Loan to the Company for the purpose of currently
redeeming all of the outstanding Series A Bonds and all of the
outstanding Series B Bonds within 90 days after the date of
initial issuance of the Series 1999 Bonds, and of purchasing the
portion of the outstanding Series 1995 Bonds validly tendered and
accepted by the Company for purchase in accordance with the
Depositary Agreement on the date of initial issuance of the
Series 1999 Bonds. The Company hereby agrees to cause the
proceeds of the Series 1999 Bonds to be applied exclusively to
the foregoing purpose and to cause such Series A Bonds and
Series B Bonds to be redeemed within 90 days after the date of
initial issuance of the Series 1999 Bonds and to cause such
Series 1995 Bonds to be purchased on the date of initial issuance
of the Series 1999 Bonds. In addition, the Company agrees to pay
any and all amounts required in addition to the proceeds of the
Series 1999 Bonds to currently redeem or purchase such Series A
Bonds, Series B Bonds and Series 1995 Bonds, as the case may be.
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable. In order to evidence the Loan and the repayment
obligation of the Company, the Company shall execute and deliver
for each series of Bonds a Note in a principal amount equal to
the aggregate principal amount of, and having the same stated
rate or rates of interest as, such series of Bonds. Each Note
shall be dated the date of the initial issuance of, and mature on
the same maturity date or dates as, the series of Bonds issued
concurrently therewith.
Pursuant to the Notes, the Company agrees to pay or cause to
be paid to the Issuer, in immediately available funds, a sum
equal to the aggregate principal amount of each series of Bonds
issued under the Indenture, redemption premium, if any, and
interest on the unpaid balances thereof at the rates payable by
the Issuer on such Bonds at the times such principal, redemption
premium, if any, and interest is payable by the Issuer
irrespective of any original issue discount with respect to such
Bonds. If, at the date any payment on such Bonds is due, there
are any available moneys in the Bond Fund, such moneys shall be
credited against said payment, first in respect of interest and
then, to the extent of remaining moneys, in respect of principal.
The Company shall also pay (a) the fees, charges and
reasonable expenses of the Trustee and any paying agents under
the Indenture, such fees, charges and reasonable expenses to be
paid directly to the Trustee or paying agents for their
respective accounts as and when such fees, charges and reasonable
expenses become due and payable, (b) any expenses and costs
incurred or to be incurred by virtue of the issuance and sale of
the Bonds, (c) any expenses in connection with any redemption of
the Bonds, (d) any expenses in connection with the redemption or
purchase of the Series A Bonds, the Series B Bonds and the Series
1995 Bonds, (e) the fees, charges and reasonable expenses of the
Issuer and (f) any amounts owed under the Rebate Agreement.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make the payments as provided in
this Agreement and the Notes and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional notwithstanding failure of the title to the Project
or any part thereof, loss of title to (or the temporary use
of) the Project by virtue of the exercise by others of the power
of eminent domain, any acts or circumstances that may constitute
failure of consideration, destruction of or damage to the
Project, commercial frustration of purpose, any change in the tax
or other laws of the United States of America or of the State of
Mississippi or any political subdivision of either thereof or any
failure of the Issuer to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing
contained in this Section 3.3 shall be construed to release the
Issuer from the performance of any of the agreements on its part
herein contained; and, in the event the Issuer should fail to
perform any such agreement on its part, the Company may institute
such action against the Issuer as the Company may deem necessary
to compel performance or recover its damages for nonperformance
so long as such action shall not violate the agreements on the
part of the Company contained in the preceding sentence, but in
no event shall the Company be entitled to reduce the amounts
payable under the Notes and Section 3.2 hereof. The Company may,
however, at its own cost and expense and in its own name or in
the name of the Issuer, prosecute or defend any action or
proceeding or take any other action involving third persons which
the Company deems reasonably necessary in order to secure or
protect its right of possession, occupancy and use of the Project
hereunder, and in such event the Issuer hereby agrees to
cooperate fully with the Company and to take all action necessary
to effect the substitution of the Company for the Issuer in any
such action or proceeding if the Company shall so request.
SECTION 3.4. Assignment and Pledge of Payments and Rights
Under the Notes and this Agreement. The Issuer shall assign and
pledge to the Trustee as security under the Indenture all rights,
title and interests of the Issuer in and to (a) the Notes and all
payments thereunder and (b) this Agreement and all moneys
receivable hereunder (except for payments under Sections 4.3 and
5.3 hereof). The Company assents to such assignment and hereby
agrees that, as to the Trustee, its obligations to make such
payments shall be absolute and shall not be subject to any
defense or any right of set-off, counterclaim or recoupment
arising out of any breach by the Issuer or the Trustee of any
obligation to the Company, whether hereunder or otherwise, or out
of any indebtedness or liability at any time owing to the Company
by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. No Warranty of Suitability by the Issuer. The
Issuer makes no warranty either express or implied as to the
Project, including its suitability for the Company's purposes or
needs.
SECTION 4.2. Use of Project. The Issuer does hereby
covenant and agree that it will not take any action, other than
pursuant to the exercise of its rights under Section 5.2 of this
Agreement, to prevent the Company from having possession and
enjoyment of the Project during the term of this Agreement and
will, at the request of the Company and at the Company's cost,
reasonably cooperate with the Company in order that the Company
may have possession and enjoyment of the Project. The Issuer
hereby acknowledges that it shall have no rights to the use or
possession of the Project. The Issuer hereby further
acknowledges that the Project will not constitute any part of the
security for the Bonds.
SECTION 4.3. Indemnity Against Claims. The Company shall
pay and discharge and shall indemnify and hold harmless the
Issuer and the Trustee from (a) any lien or charge upon payments
by the Company to the Issuer under the Notes or hereunder,
(b) any taxes, assessments, impositions and other charges upon
payments by the Company to the Issuer under the Notes or
hereunder and (c) any and all liability, damages, costs and
expenses arising out of or resulting from the transactions
contemplated by this Agreement and the Indenture or in any way
related to the Project, including the reasonable fees and
expenses of counsel. If any such lien or charge is sought to be
imposed upon payments, or any such taxes, assessments,
impositions or other charges are sought to be imposed, or any
such liability, damages, costs and expenses are sought to be
imposed, the Issuer and/or the Trustee shall give prompt written
notice to the Company, and the Company shall have the sole right
and duty to assume, and will assume, the defense thereof, with
full power to litigate, compromise or settle the same in its sole
discretion.
SECTION 4.4. Inspection of the Project. The Company agrees
that the Trustee for good cause may during normal working hours
and upon reasonable notice to the Company enter upon the Project
site and examine and inspect the Project and the books and
records of the Company with respect to the Project.
SECTION 4.5. The Company to Maintain Its Corporate
Existence; Conditions Under Which Exceptions Permitted. The
Company agrees that during the term of this Agreement it will
maintain its corporate existence in the State of Arkansas and
qualification to do business in the State of Mississippi, will
not dissolve or otherwise dispose of all or substantially all of
its assets and will not consolidate with or merge into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this
Section 4.5, consolidate with or merge into
another corporation or permit one or more other corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another corporation all or substantially all of its assets as
an entirety and thereafter dissolve, provided that (a) both
immediately prior to such consolidation or merger and after
giving effect thereto, no Event of Default (or event which, with
the giving of notice or the passage of time, or both, would
become an Event of Default) shall have occurred and be
continuing, (b) in the event the Company is not the surviving,
resulting or transferee corporation, as the case may be, the
surviving, resulting or transferee corporation assumes, accepts
and agrees in writing to pay and perform all of the obligations
of the Company herein and under the Notes and is a Mississippi
corporation or is qualified to do business in the State of
Mississippi as a foreign corporation and (c) whether or not the
Company is the surviving, resulting or transferee corporation,
such consolidation or merger does not result in the loss of the
exclusion from gross income for federal income tax purposes of
interest on the Bonds.
SECTION 4.6. Annual Statement. If reasonably requested in
writing, the Company agrees to have an annual audit made by its
regular independent public accountants and within 180 days after
the close of each fiscal year to furnish the Trustee and any
Bondholder who may so request a balance sheet and statement of
income and surplus showing the financial condition of the Company
and its consolidated subsidiaries, if any, at the close of such
fiscal year and the results of operations of the Company and its
consolidated subsidiaries, if any, for such fiscal year,
accompanied by a certificate or opinion of said accountants. The
requirements of the Company pursuant to this Section 4.6 may be
satisfied by the submission to the Trustee and each Bondholder
who may request such information of the Company's annual report
to its shareholders, so long as the Company prepares such an
annual report or its Annual Report on Form 10-K.
SECTION 4.7. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of
this Agreement.
SECTION 4.8. Maintenance of Project by Company. The Company
agrees that during the term of this Agreement it will pay all
reasonable and necessary costs of operating, maintaining and
repairing the Project; provided, however, that the Company shall
not be under any obligation to renew, repair or replace any
inadequate, obsolete, worn-out, unsuitable, undesirable or
unnecessary portion of the Project. In any instance where the
Company determines that any portion of the Project has become
inadequate, obsolete, worn-out, unsuitable, undesirable or
unnecessary, the Company may remove such portion of the Project
and sell, trade-in, exchange or otherwise dispose of such removed
portion without any responsibility or accountability to the
Issuer, the Trustee or the Bondholders therefor.
SECTION 4.9. Redemption or Purchase of Bonds. The Issuer
shall take all steps then necessary under the applicable
provisions of the Indenture and then applicable federal and state
laws and regulations for the redemption or purchase of Bonds upon
receipt by the Issuer and the Trustee from the Company of a
written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased and the section of the Indenture pursuant to which such
Bonds are being redeemed or purchased;
(b) the date of such redemption or purchase, which date, in
the case of a redemption of Bonds, shall be at least thirty (30)
but not more than ninety (90) days subsequent to the receipt by
the Trustee of such notice; and
(c) in the case of a redemption of Bonds, directions to
mail a notice of redemption pursuant to Section 3.04 of the
Indenture.
In the case of a purchase of Bonds, the written notice to
the Trustee shall, if available moneys in the Bond Fund are
insufficient to purchase the principal amount of Bonds specified
in (a) above, be accompanied by a deposit into the Bond Fund of
cash or Government Obligations sufficient, together with other
moneys then available in the Bond Fund, to make the directed
purchase of Bonds.
SECTION 4.10. Tax Covenants. The Company covenants and
agrees that it will not use or permit the use by any person of
any of the funds provided by the Issuer hereunder or any other of
its funds, directly or indirectly, or direct the Trustee to
invest any funds held by it under the Indenture or this
Agreement, in such manner as would, or enter into, or allow any
"related person" (as defined in Section 103(b)(13) of the 1954
Code) to enter into, any arrangement, formal or informal, that
would, or take or omit to take any other action that would, cause
any Bond to be an "arbitrage bond" within the meaning of Section
148(a) of the Code or result in the loss of the exclusion from
gross income for federal income tax purposes of the interest paid
on the Bonds to the extent afforded under Section 103 of the 1954
Code. The Company acknowledges Section 6.02 of the Indenture and
agrees to perform all duties imposed upon it by such Section
including but not limited to its obligations under the Rebate
Agreement. Insofar as said section imposes duties and
responsibilities on the Company, it is specifically incorporated
herein by reference. The Issuer and the Company mutually
covenant and agree that neither of them shall take or authorize
or permit any action to be taken, and have not taken or
authorized or permitted any action to be taken, which has or
would result in the interest on any Bonds theretofore issued
under the Indenture being included in gross income of the holders
thereof for federal income tax purposes. This covenant shall
survive the termination of this Agreement.
SECTION 4.11. Ad Valorem Taxes. The Project shall be
subject to assessment thereof for ad valorem taxes in the manner
provided by law and the Company agrees to timely pay all such
taxes.
SECTION 4.12. Continuing Disclosure. It is understood,
acknowledged and agreed that the Issuer shall have no
responsibility for compliance with the continuing disclosure
requirements set forth in Rule 15c2-12 promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, as in effect on the date of this Agreement, and
shall have no liability to the underwriters of the Bonds, the
holders of the Bonds or any other person with respect to such
disclosure matters. To the extent applicable to the Company, the
Company agrees to comply fully with the continuing disclosure
requirements of said Rule 15c2-12.
SECTION 4.13. Series A Bonds and Series B Bonds. The
Company represents that the interest rates on the Series A Bonds
and the Series B Bonds were converted to a fixed rate to maturity
commencing December 1, 1988 and June 1, 1989, respectively and
that all actions required under the 1954 Code and the Code were
taken in connection with said conversions to insure that interest
on the Series A Bonds and the Series B Bonds remains excluded
from the gross income of the holders thereof for federal income
tax purposes.
SECTION 4.14. Assignment, Leasing and Selling. The
Company's interest in this Agreement may be assigned in whole or
in part, and the Project may be leased or sold as a whole or in
part (whether a specific element or unit or an undivided
interest), by the Company, without the consent of the Issuer or
the Trustee, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 4.8
hereof) shall relieve the Company from primary liability for its
obligations under Section 3.2 hereof to pay the payments required
thereunder, or for any other of its obligations hereunder, other
than those obligations relating to the operation, maintenance and
insurance of the Project, which obligations (to the extent of the
interest assigned, leased or sold and to the extent assumed by
the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged. Further, upon any such lease or sale,
the Company shall comply with the requirements of Section 4.10
hereof, the 1954 Code and the Code and the regulations
promulgated thereunder (including, without limitation, the taking
of remedial action with respect to the Bonds) as the same may
then be applicable.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall
be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the principal or
redemption premium, if any, required to be paid in respect of the
Bonds pursuant to the Notes, failure by the Company to pay an
installment of interest required to be paid in respect of the
Bonds pursuant to this Agreement and the Notes, after such
interest has become due for a period of sixty (60) days, or the
failure by the Company to pay within 30 days of the date due any
other amounts required to be paid pursuant to this Agreement.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed hereunder, other than as referred to in subsection
(a) of this Section 5.1, for a period of 60 days after written
notice, specifying such failure and requesting that it be
remedied, is given to the Company by the Issuer or the Trustee,
unless the Issuer and the Trustee shall agree in writing to an
extension of such period prior to its expiration; provided,
however, if the failure stated in the notice cannot be corrected
within the applicable period, the Issuer and the Trustee will not
unreasonably withhold their consent to an extension of such
period if corrective action is instituted by the Company within
the applicable period and diligently pursued until the failure is
remedied.
(c) The expiration of a period of ninety (90) days
following:
(1) the adjudication of the Company as an involuntary
bankrupt by any court of competent jurisdiction;
(2) the entry of an order approving an involuntary
petition seeking reorganization or arrangement of the
Company under the federal bankruptcy laws or any other
applicable law or statute of the United States of America,
or of any state thereof; or
(3) the appointment in an involuntary proceeding of a
trustee or a receiver of all or substantially all of the
property of the Company;
unless during such period, such adjudication, order or
appointment of a trustee or receiver shall be vacated or shall be
stayed on appeal or otherwise or shall have otherwise ceased to
continue in effect.
(d) The filing by the Company of a voluntary petition in
bankruptcy or the making of an assignment for the benefit of
creditors; the consenting by the Company to the appointment of a
receiver or trustee of all or any part of its property; the
filing by the Company of a petition or answer seeking
reorganization, adjustment, composition or arrangement under the
federal bankruptcy laws, or any other applicable law or statute
of the United States of America, or of any state thereof; or the
filing by the Company of a petition to take advantage of any
insolvency act.
The foregoing provisions of Section 5.1(b) are subject to
the limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein
contained other than those set forth in Sections 4.5 and 4.10
hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force
majeure" as used herein shall mean the following: acts of God;
strikes; lockouts or other industrial disturbances; acts of
public enemies; orders of any kind of the government of the
United States of America or of any state or any of their
departments, agencies or officials or of any civil or military
authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; fire; hurricanes; tornadoes; storms;
floods; washouts; droughts; arrests; restraints of government and
people; civil disturbances; explosions; breakage or accident to
machinery, transmission lines, pipes or canals; partial or entire
failure of utilities; or any other cause or event not reasonably
within the control of the Company. The Company agrees, however,
to remedy to the extent practicable with all reasonable dispatch
the effects of any force majeure preventing the Company from
carrying out its agreements; provided that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is in the judgment of
the Company unfavorable to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of
Default shall have occurred and be continuing, the Issuer may, in
addition to any other remedy now or hereafter existing at law, in
equity or by statute, take either or both of the following
remedial steps:
(a) By written notice to the Company, the Issuer may
declare all amounts payable pursuant to the Notes to be
immediately due and payable, whereupon the same shall become
immediately due and payable.
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred
to in (a) above then due and thereafter to become due, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
Any amounts collected pursuant to action taken under this
Section 5.2 shall be paid into the Bond Fund and applied in
accordance with the provisions of the Indenture or, if the Bonds
have been fully paid (or provision for payment thereof has been
made in accordance with the provisions of the Indenture) and the
fees and expenses of the Issuer, the Trustee and the paying
agents and all other amounts required to be paid under the
Indenture and hereunder shall have been paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Notes, this Agreement or the Indenture and the Issuer or the
Trustee should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or thereunder or the
enforcement of performance or observance of any obligation or
agreement on the part of the Company herein or therein contained,
the Company agrees that it will on demand therefor pay to the
Issuer or the Trustee the reasonable fees of such attorneys and
such other reasonable expenses so incurred by the Issuer or the
Trustee.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In
the event any provision contained in this Agreement should be
breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of this Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the Bonds then Outstanding shall have been fully
paid or provision made therefor in accordance with the provisions
of the Indenture, whichever shall first occur, and the fees and
expenses of the Issuer, the Trustee and any paying agents and all
other amounts payable by the Company under this Agreement and the
Notes shall have been paid.
SECTION 6.2. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the Issuer, at
1306 Xxxxxx Xxxxxxx Building, 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, Attention: Executive Director; if to the
Company, at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000;
Attention: Treasurer; and if to the Trustee, at Tower Marc Plaza,
00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention:
Corporate Trust Division. A duplicate copy of each notice,
certificate or other communication given hereunder by either the
Issuer or the Company to the other shall also be given to the
Trustee. The Issuer, the Company and the Trustee may, by notice
given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications
shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Section 4.5 hereof.
SECTION 6.4. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not inval
idate or render unenforceable any other provision hereof.
SECTION 6.5. Amounts Remaining in the Bond Fund. Any
amounts remaining in the Bond Fund upon termination of this
Agreement shall, to the extent provided by Section 5.08 of the
Indenture, belong to and be paid to the Company by the Trustee.
SECTION 6.6. Amendments. This Agreement may not be
effectively terminated except in accordance with the provisions
hereof and may not be effectively amended except by a written
agreement in accordance with Article XI of the Indenture and
signed by the parties hereto.
SECTION 6.7. Execution in Counterparts. This Agreement 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 6.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Mississippi.
SECTION 6.9. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Agreement.
SECTION 6.10. Other Financing. Notwithstanding anything in
this Agreement to the contrary, the Issuer and the Company may
hereafter enter into agreements to provide for the financing or
refinancing of costs of the Project or any portion thereof in
lieu of or in addition to the provisions herein for Additional
Bonds.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
MISSISSIPPI BUSINESS FINANCE
CORPORATION
By
Executive Director
ATTEST:
Secretary
SYSTEM ENERGY RESOURCES, INC.
(SEAL)
By
Vice President and Treasurer
ATTEST:
Assistant Secretary
::ODMA\PCDOCS\JACKSON\38525\12
16287.001
STATE OF MISSISSIPPI
COUNTY OF XXXXX
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this 24th day of May,
1999, within my jurisdiction, the within named Xxxxxxx X. Xxxxx
and Xxxxx Xxxxxx Xxxxx, Sr., who acknowledged that they are the
Executive Director and Secretary of the Mississippi Business
Finance Corporation, and that in said representative capacities
they executed the above and foregoing instrument, after first
having been duly authorized so to do.
Notary Public
My Commission Expires:
STATE OF LOUISIANA
PARISH OF ORLEANS
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this 27th day of May, 1999,
within my jurisdiction, the within named Xxxxxx X. XxXxxx and
Xxxxxxxx X. Xxxxxx, who acknowledged that they are the Vice
President and Treasurer and Assistant Secretary of System Energy
Resources, Inc., an Arkansas corporation, and that for and on
behalf of the said corporation and as its act and deed they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
For Life
EXHIBIT A
SYSTEM ENERGY RESOURCES, INC.
PROMISSORY NOTE
$ [DATE]
SYSTEM ENERGY RESOURCES, INC., a corporation organized and
existing under the laws of the State of Arkansas (the "Company"),
acknowledges itself indebted and for value received hereby
promises to pay to the order of the Mississippi Business Finance
Corporation (the "Issuer"), and its successors and assigns, the
principal sum of
Dollars ($ ) together with interest on the
unpaid principal balance thereof from the date hereof until the
Company's obligation with respect to the payment of such sum
shall be discharged at the rate borne by the Bonds referred to
below. As additional interest hereon there shall be payable, and
the Company promises to pay when due, amounts which shall equal
the redemption premium, if any, due on such Bonds in connection
with the redemption thereof.
This Note is issued to evidence the Loan (as defined in the
Agreement hereinafter referred to) of the Issuer to the Company
and the obligation of the Company to repay the same and shall be
governed by and be payable in accordance with the terms and
conditions of a Loan Agreement (the "Agreement") by and between
the Issuer and the Company, dated as of May 15, 1999, pursuant
to which the Issuer has loaned to the Company the proceeds of the
sale of the Issuer's $ Pollution Control
Revenue Refunding Bonds (System Energy Resources, Inc. Project)
Series (the "Bonds"). Additional similar Notes may be or
may have been issued by the Company as provided in the Agreement.
This Note (together with the Agreement) has been assigned to The
Bank of New York Trust Company of Florida, N.A., as Trustee (the
"Trustee"), acting pursuant to a trust indenture, dated as of
May 15, 1999, including any indenture supplemental thereto (the
"Indenture"), by and between the Issuer and the Trustee, and may
not be assigned by the Trustee except to a successor Trustee
pursuant to the terms of the Indenture. Such assignment is made
as security for the Bonds, and any other bonds which are or may
at any time be issued and outstanding under the Indenture. The
Bonds are dated and bear interest in accordance with the
provisions of the Indenture, payable on
and in each year commencing
at the rate of percent ( %) per
annum, and mature on . The Bonds are
subject to redemption prior to maturity as provided in the
Indenture.
Subject to the provisions of the Agreement, payments hereon
are to be made by paying to the Trustee, as assignee of the
Issuer, in funds which will be immediately available on the date
payment is due, amounts which, and at or before times which,
shall correspond to the payments with respect to the principal
of, redemption premium, if any, and interest on the Bonds
whenever and in whatever manner the same shall become due,
whether at stated maturity, upon redemption or declaration or
otherwise. If at the date any payments on the Bonds are due
there are any available moneys in the Bond Fund established under
the Indenture, such moneys shall be credited against the payment
then due hereunder, first in respect of interest and then, to the
extent of remaining moneys, in respect of principal. Upon the
occurrence of an Event of Default, as defined in the Agreement,
the principal of and interest on this Note may be declared
immediately due and payable as provided in the Agreement.
Neither the officers of the Company nor any persons
executing this Note shall be liable personally or shall be
subject to any personal liability or accountability by reason of
the issuance hereof.
IN WITNESS WHEREOF, System Energy Resources, Inc. has caused
this Note to be executed in its corporate name and on its behalf
by its President, its Treasurer or a Vice President by his or her
manual signature, and its corporate seal to be impressed hereon
and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
SYSTEM ENERGY RESOURCES, INC.
(SEAL)
By
Title
ATTEST:
By
Title
ASSIGNMENT
Pay to the order of The Bank of New York Trust Company of
Florida, N.A., as Trustee, as assignee of the Mississippi
Business Finance Corporation, under the Trust Indenture, dated as
of May 15, 1999 by and between the Mississippi Business Finance
Corporation and The Bank of New York Trust Company of Florida,
N.A., as Trustee, securing the payment of Mississippi Business
Finance Corporation Pollution Control Revenue Refunding Bonds
(System Energy Resources, Inc. Project) Series , in the
original principal amount of $ .
Dated:
MISSISSIPPI BUSINESS FINANCE
CORPORATION
By
Executive Director
