Exhibit B-3(d)
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE
AS SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 3 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 1, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 3 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 3 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS NOT THE ORIGINAL COUNTERPART.
LEASE SUPPLEMENT NO. 3
dated as of May 1, 2004
to
FACILITY LEASE NO. 1
dated as of December 1, 1988,
as supplemented,
between
WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor in interest to MERIDIAN TRUST COMPANY)
and XXXXXXXX X. XXXXXXX
(as successor in interest to Xxxxxxx X. Xxxxx)
not in their individual capacities,
but solely as Owner Trustee under
Trust Agreement No. 1
dated as of December 1, 1988,
with RCMC I, Inc.,
as successor in interest to
Resources Capital Management Corporation,
as successor in interest to Public Service Resources Corporation,
Lessor
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Indexing Instructions: This Lease Supplement No. 3, dated as of
May 1, 2004, is filed as an amendment to Facility Lease No. 1
between Wachovia Bank, National Association (as successor in
interest to Meridian Trust Company) and Xxxxxxxx X. Xxxxxxx (as
successor in interest to Xxxxxxx X. Xxxxx), both as Lessor, and
System Energy Resources, Inc., as Lessee, dated as of December 1,
1988, and recorded in Book 12-V, Page 408, on December 28, 1988,
in the office of the Chancery Clerk of Claiborne County,
Mississippi. Pursuant to Section 89-5-33(3)(b) of the
Mississippi Code, as amended, no indexing instruction is required
for this instrument because it is one affecting a previously
recorded instrument. As required by Mississippi law, this
instrument shall be entered in the general index and noted on the
margin of the previously recorded instrument.
Prepared by: Xxxx Xxxxxx Child & Xxxxxxx, Professional Association
P. O. Xxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000
CERTAIN RIGHTS OF THE LESSOR UNDER THE FACILITY LEASE
AS SUPPLEMENTED BY THIS LEASE SUPPLEMENT NO. 3 HAVE BEEN ASSIGNED
TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, THE
INDENTURE TRUSTEE UNDER TRUST INDENTURE, DEED OF TRUST, MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF FACILITY LEASE NO. 1, DATED
AS OF DECEMBER 1, 1988, AS SUPPLEMENTED. THIS LEASE SUPPLEMENT
NO. 3 HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. SEE SECTION 3(c)
OF THIS LEASE SUPPLEMENT NO. 3 FOR INFORMATION CONCERNING THE
RIGHTS OF HOLDERS OF VARIOUS COUNTERPARTS HEREOF.
THIS COUNTERPART IS THE ORIGINAL COUNTERPART. RECEIPT OF THIS
ORIGINAL COUNTERPART IS HEREBY ACKNOWLEDGED BY DEUTSCHE BANK
TRUST COMPANY AMERICAS (FORMERLY KNOWN AS BANKERS TRUST COMPANY),
AS CORPORATE INDENTURE TRUSTEE.
By:
Authorized Officer
LEASE SUPPLEMENT NO. 3
dated as of May 1, 2004
to
FACILITY LEASE NO. 1
dated as of December 1, 1988,
as supplemented,
between
WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor in interest to MERIDIAN TRUST COMPANY)
and XXXXXXXX X. XXXXXXX
(as successor in interest to Xxxxxxx X. Xxxxx)
not in their individual capacities,
but solely as Owner Trustee under
Trust Agreement No. 1
dated as of December 1, 1988,
with RCMC I, Inc.,
as successor in interest to
Resources Capital Management Corporation,
as successor in interest to Public Service Resources Corporation,
and
SYSTEM ENERGY RESOURCES, INC.,
Lessee
Indexing Instructions: This Lease Supplement No. 3, dated as of
May 1, 2004, is filed as an amendment to Facility Lease No. 1
between Wachovia Bank, National Association (as successor in
interest to Meridian Trust Company) and Xxxxxxxx X. Xxxxxxx (as
successor in interest to Xxxxxxx X. Xxxxx), both as Lessor, and
System Energy Resources, Inc., as Lessee, dated as of December 1,
1988, and recorded in Book 12-V, Page 408, on December 28, 1988,
in the office of the Chancery Clerk of Claiborne County,
Mississippi. Pursuant to Section 89-5-33(3)(b) of the
Mississippi Code, as amended, no indexing instruction is required
for this instrument because it is one affecting a previously
recorded instrument. As required by Mississippi law, this
instrument shall be entered in the general index and noted on the
margin of the previously recorded instrument.
Prepared by: Xxxx Xxxxxx Child & Xxxxxxx, Professional Association
P. O. Xxx 000
Xxxxxxx, XX 00000-0000
(000) 000-0000
LEASE SUPPLEMENT NO. 3, dated as of May 1, 2004 ("Lease
Supplement No. 3"), to FACILITY LEASE NO. 1, dated as of December
1, 1988, as supplemented (the "Facility Lease"), between WACHOVIA
BANK, NATIONAL ASSOCIATION (as successor in interest to MERIDIAN
TRUST COMPANY), a national banking association, not in its
individual capacity, but solely as Corporate Owner Trustee and
XXXXXXXX X. XXXXXXX (as successor in interest to Xxxxxxx X.
Xxxxx) not in his individual capacity, but solely as successor
Individual Owner Trustee (together, the "Lessor"), under the
Trust Agreement (such term, and all other capitalized terms used
herein without definition, being defined as provided in Section 1
below), and SYSTEM ENERGY RESOURCES, INC., an Arkansas
corporation (the "Lessee"),
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor have heretofore
entered into the Facility Lease providing for the lease by the
Lessor to the Lessee of the Undivided Interest; and
WHEREAS, the Lessee, the Lessor, the Owner Participant,
the Funding Corporation and the Indenture Trustee have entered
into Refunding Agreement No. 1-B, dated as of April 1, 2004,
providing for the issuance by the Owner Trustee of a new series
of Fixed Rate Notes (the "Refunding Notes") to refund the
Outstanding Notes; and
WHEREAS, the Owner Trustee and the Indenture Trustee
have entered into Supplemental Indenture No. 3, dated as of May
1, 2004, to the Indenture creating the Refunding Notes for such
purpose and establishing the terms, conditions and designations
thereof; and
WHEREAS, Section 3(e) of the Facility Lease provides
for an adjustment to Basic Rent and to the Value Schedules in
order to preserve the Net Economic Return in the event, among
other things, of the issuance of the Refunding Notes;
NOW, THEREFORE, in consideration of the premises and of
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and
not otherwise defined herein or in the recitals shall have the
meanings assigned to such terms in Appendix A to the Facility
Lease. Appendix A to the Lease is hereby amended such that
Funding Corporation, as defined therein, shall mean GG1C Funding
Corporation.
SECTION 2. Amendments; Schedules.
As of the date first written above and until and unless
further amended, Schedules 1 through 3 of the Facility Lease are
hereby amended as follows:
(a) Schedule 1 to the Facility Lease entitled "Basic Rent
Percentages" is deleted in its entirety and is hereby replaced
with Schedule 1 hereto.
(b) Schedule 2 to the Facility Lease entitled "Schedule of
Casualty Values" is deleted in its entirety and is hereby
replaced with Schedule 2 hereto.
(c) Schedule 3 to the Facility Lease entitled "Schedule of
Special Casualty Values" is deleted in its entirety and is hereby
replaced with Schedule 3 hereto.
SECTION 3. Miscellaneous.
(a) Counterpart Execution. This Lease Supplement No. 3 may be
executed in any number of counterparts and by each of the parties
hereto or thereto on separate counterparts, all such counterparts
together constituting but one and the same instrument.
(b) Execution as Lease Supplement. This Lease Supplement No. 3
is executed and shall be construed as a supplement and amendment
to the Facility Lease and shall form a part thereof. On and from
the delivery of this Lease Supplement No. 3, any reference in any
Transaction Document to the Facility Lease shall be deemed to
refer to the Facility Lease as supplemented and amended by this
Lease Supplement No. 3.
(c) Original Counterpart. The single executed original of this
Lease Supplement No. 3 marked "THIS COUNTERPART IS THE ORIGINAL
COUNTERPART" and containing the receipt of the Indenture Trustee
thereon shall be the "Original" of this Lease Supplement No. 3.
To the extent that the Facility Lease, as supplemented by this
Lease Supplement No. 3, constitutes chattel paper, as such term
is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest in the Facility
Lease, as so supplemented, may be created or continued through
the transfer or possession of any counterparts of the Facility
Lease and supplements thereto other than the "Originals" of any
thereof.
(d) Concerning the Lessor. Wachovia Bank, National Association
and Xxxxxxxx X. Xxxxxxx are entering into this Lease Supplement
No. 3 solely as Corporate Owner Trustee and successor Individual
Owner Trustee under the Trust Agreement and not in their
individual capacities. Anything herein to the contrary
notwithstanding, all and each of the agreements herein made on
the part of the Corporate Owner Trustee and successor Individual
Owner Trustee are made and intended not as personal agreements of
Wachovia Bank, National Association and Xxxxxxxx X. Xxxxxxx but
are made and intended for the purpose of binding only the Trust
Estate.
IN WITNESS WHEREOF, each of the parties hereto has
caused this Lease Supplement No. 3 to be duly executed by an
officer thereunto duly authorized, as of the date set forth
above.
WACHOVIA BANK, NATIONAL
ASSOCIATION (as successor in
interest to MERIDIAN TRUST
COMPANY), not in its
individual capacity but solely
as Corporate Owner Trustee
By:
Name.
Title:
Xxxxxxxx X. Xxxxxxx, not in
his individual capacity but
solely as successor Individual
Owner Trustee
ATTEST: SYSTEM ENERGY RESOURCES, INC.
By:
Name:
Title:
STATE OF DELAWARE )
COUNTY OF NEW CASTLE )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _____________, 2004, within my jurisdiction, the within named
_________________, who acknowledged that he is a
_________________ of WACHOVIA BANK, NATIONAL ASSOCIATION (as
successor in interest to MERIDIAN TRUST COMPANY), a national
banking association, Corporate Owner Trustee under that certain
Trust Agreement No. 1, dated as of December 1, 1988 among RCMC I,
INC., as Owner Participant, WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor in interest to MERIDIAN TRUST COMPANY), as
Corporate Owner Trustee, and XXXXXXXX X. XXXXXXX, as successor
Individual Owner Trustee to the original Individual Owner
Trustee, Xxxxxxx X. Xxxxx, and that for and on behalf of the said
trust company, and as its act and deed in said capacity as
Corporate Owner Trustee and its having been duly authorized so to
do, he executed the above and foregoing instrument after first
having been duly authorized by said trust company so to do.
NOTARY PUBLIC
My Commission Expires:
STATE OF DELAWARE )
COUNTY OF NEW CASTLE )
Personally appeared before me, the undersigned
authority in and for the said County and State, on this ____ day
of _____________, 2004, within my jurisdiction, the within named
XXXXXXXX X. XXXXXXX, who acknowledged that he is the successor
Individual Owner Trustee under that certain Trust Agreement No.
1, dated as of December 1, 1988 among RCMC I, INC., as Owner
Participant, WACHOVIA BANK, NATIONAL ASSOCIATION (as successor in
interest to MERIDIAN TRUST COMPANY), as Corporate Owner Trustee,
and XXXXXXXX X. XXXXXXX, as successor Individual Owner Trustee to
the original Individual Owner Trustee, Xxxxxxx X. Xxxxx, and that
in his capacity as Individual Owner Trustee he executed the above
and foregoing instrument after first having been duly authorized
to do so.
NOTARY PUBLIC
My Commission Expires:
STATE OF LOUISIANA )
ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the said parish and state, on this ____ day
of ___________, 2004, within my jurisdiction, the within named
_________________, who acknowledged that he is a
_________________of SYSTEM ENERGY RESOURCES, INC., an Arkansas
corporation, and that for and on behalf of the said corporation,
and as its act and deed, he executed the above and foregoing
instrument, after first having been duly authorized by said
corporation so to do.
Notary Public
My Commission is issued for life.
