Exhibit 4(d)
_________________________________________________________________
ENTERGY MISSISSIPPI, INC.
(formerly Mississippi Power & Light Company)
to
THE BANK OF NEW YORK
(successor to Xxxxxx Trust Company of New York and Bank of
Montreal Trust Company)
and
XXXXXXX X. XXXXXXXXX
(successor to Xxxx X. XxXxxxxxxx and Z. Xxxxxx Xxxxxxxxx)
As Trustees under
Entergy Mississippi, Inc.'s
Mortgage and Deed of Trust, dated as of February 1, 1988
________________________________
SEVENTEENTH SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds designated as
First Mortgage Bonds,
6% Series due November 1, 2032
________________
Dated as of October 1, 2002
_____________________________
Prepared by
Xxxx Xxxxxx Child & Xxxxxxx, Professional Association
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
(000) 000-0000
_________________________________________________________________
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 6
Section 1.02. Certain Defined Terms 6
Section 1.03. References Are to Seventeenth Supplemental
Indenture 6
Section 1.04. Number and Gender 7
ARTICLE II
THE TWENTY-THIRD SERIES
Section 2.01. Bonds of the Twenty-third Series 7
Section 2.02. Optional Redemption of Bonds of the
Twenty-third Series. 8
Section 2.03. Mandatory Redemption of Bonds of the
Twenty-third Series. 8
Section 2.04. Insurance Provisions. 9
Section 2.05. Transfer and Exchange. 9
Section 2.06. Dating of Bonds and Interest Payments. 9
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 10
Section 3.02. Further Assurances 10
Section 3.03. Limitation on Restricted Payments. 10
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts 11
Section 4.02. Effect of Seventeenth Supplemental Indenture
under Louisiana Law 12
Section 4.03. Record Date 12
Section 4.04. Titles 12
Section 4.05. Counterparts 12
Section 4.06. Governing Law 12
Section 4.07. Recitals 12
Signatures S-1
Acknowledgments S-3
Exhibit A - Form of Bond of Twenty-third Series
SEVENTEENTH SUPPLEMENTAL INDENTURE
_________________________
SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of October
1, 2002, between ENTERGY MISSISSIPPI, INC. (formerly 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
THE BANK OF NEW YORK (successor to Xxxxxx Trust Company of New
York), a New York banking corporation of the State of New York,
whose principal corporate trust office is located at 000 Xxxxxxx
Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (tel. 000-000-0000) and
XXXXXXX X. XXXXXXXXX (successor to Xxxx X. XxXxxxxxxx), whose
post office address is 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx
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 then required in the States of Mississippi, Arkansas
and Wyoming; and
WHEREAS, the Company has executed and delivered to the
Trustees (such term and all other defined terms used herein and
not defined herein having the respective definitions to which
reference is made in Article I below) its First Supplemental
Indenture, dated as of February 1, 1988, its Second Supplemental
Indenture, dated as of July 1, 1988, its Third Supplemental
Indenture, dated as of May 1, 1989, its Fourth Supplemental
Indenture, dated as of May 1, 1990, its Fifth Supplemental
Indenture, dated as of November 1, 1992, its Sixth Supplemental
Indenture, dated as of January 1, 1993, its Seventh Supplemental
Indenture, dated as of July 15, 1993, its Eighth Supplemental
Indenture, dated as of November 1, 1993, its Ninth Supplemental
Indenture, dated as of July 1, 1994, its Tenth Supplemental
Indenture, dated as of April 1, 1995, its Eleventh Supplemental
Indenture, dated as of June 1, 1997, its Twelfth Supplemental
Indenture, dated as of April 1, 1998, its Thirteenth Supplemental
Indenture, dated as of May 1, 1999, its Fourteenth Supplemental
Indenture, dated as of May 1, 1999, and its Fifteenth
Supplemental Indenture, dated as of February 1, 2000 and its
Sixteenth Supplemental Indenture, dated as of January 1, 2001,
each as a supplement to the Original Indenture, which
Supplemental Indentures have been duly recorded or filed as then
required in the States of Mississippi, Arkansas and Wyoming; and
WHEREAS, pursuant to an Agreement and Plan of Merger
dated as of March 18, 1999, Xxxxxx Trust Company of New York
merged into Bank of Montreal Trust Company, Trustee under the
Indenture, and effective July 1, 1999, the combined entity
changed its name to Xxxxxx Trust Company of New York. By virtue
of Section 9.03 of the Original Indenture, Xxxxxx Trust Company
of New York became successor Trustee under the Indenture, without
execution of any paper or the performance of any further act on
the part of any other parties to the Indenture; and
WHEREAS, effective June 30, 0000, Xxxxxx Xxxxx Xxxxxxx
xx Xxx Xxxx resigned as Trustee under the Indenture, and by an
Instrument of Appointment of Successor Trustee the Company
appointed The Bank of New York as successor Trustee, effective
June 30, 2000, and The Bank of New York accepted said
appointment.
WHEREAS, effective June 30, 2000, Xxxx X. XxXxxxxxxx
resigned as Co-Trustee under the Indenture, and by an Agreement
of Resignation, Appointment and Acceptance the Company appointed
Xxxxxxx X. Xxxxxxxxx, as successor Co-Trustee, effective June 30,
2000, and Xxxxxxx X. Xxxxxxxxx accepted said appointment.
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:
Series Principal Principal
Amount Amount
Issued Outstanding
14.65% Series due February 1, 1993 $55,000,000 None
14.95% Series due February 1, 1995 20,000,000 None
8.40% Collateral Series due December 1, 1992 12,600,000 None
11.11% Series due July 15, 1994 18,000,000 None
11.14% Series due July 15, 1995 10,000,000 None
11.18% Series due July 15, 1996 26,000,000 None
11.20% Series due July 15, 1997 46,000,000 None
9.90% Series due April 1, 1994 30,000,000 None
5.95% Series due October 15, 1995 15,000,000 None
6.95% Series due July 15, 1997 50,000,000 None
8.65% Series due January 15, 2023 125,000,000 None
7.70% Series due July 15, 2023 60,000,000 $60,000,000
6 5/8% Series due November 1, 2003 65,000,000 65,000,000
8.25% Series due July 1, 2004 25,000,000 25,000,000
8.80% Series due April 1, 2005 80,000,000 None
6 7/8% Series due June 1, 2002 65,000,000 None
6.45% Series due April 1, 2008 80,000,000 80,000,000
6.20% Series due May 1, 2004 75,000,000 75,000,000
Floating Rate Series due May 3, 2004 50,000,000 50,000,000
Pollution Control Series A due July 1, 2022 32,850,000 32,850,000
7 3/4% Series due February 15, 2003 120,000,000 120,000,000
6.25% due February 1, 2003 70,000,000 70,000,000
; and
WHEREAS, Section 19.04 of the Original Indenture
provides, among other things, that any power, privilege or right
expressly or implicitly reserved to or in any way conferred upon
the Company by any provision of the Indenture, whether such
power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to
additional restriction if already restricted, and the Company may
enter into any further covenants, limitations, restrictions or
provisions for the benefit of any one or more series of bonds
issued thereunder, or the Company may establish the terms and
provisions of any series of bonds by an instrument in writing
executed and acknowledged by the Company in such manner as would
be necessary to entitle a conveyance of real estate to be
recorded in all of the states in which any property at the time
subject to the Lien of the Indenture shall be situated; and
WHEREAS, the Company desires to create a new series of
bonds under the Indenture and to add to its covenants and
agreements contained in the Indenture certain other covenants and
agreements to be observed by it; and
WHEREAS, all things necessary to make this Seventeenth
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
NOW, THEREFORE, THIS SEVENTEENTH 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 unto
XXXXXXX X. XXXXXXXXX and (to the extent of its legal capacity to
hold the same for the purposes hereof) to THE BANK OF NEW YORK,
as Trustees, and to their successor or successors in said trust,
and to said Trustees and their successors and assigns forever
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture), in 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 anyway
limiting or impairing by the enumeration of the same, the scope
and intent of the foregoing or of any general description
contained in the Indenture) all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the
occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, street
lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, electric, gas and water lines, service and
supply systems, bridges, culverts, tracks, ice or refrigeration
plants and equipment, offices, buildings and other structures and
the equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and
(except as in the Indenture expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property described in the
Indenture.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anyway appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof (except as 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 in
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 XXXXXXX X.
XXXXXXXXX and (to the extent of its legal capacity to hold the
same for the purposes hereof) unto THE BANK OF NEW YORK, and
their successors and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Indenture set forth, for the equal pro rata benefit and security
of all and each of the bonds and coupons issued and to be issued
under the Indenture, or any of them, in accordance with the terms
of the Indenture, without preference, priority or distinction as
to the Lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject to the
provisions in the Indenture set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being
intended that, subject as aforesaid, the Lien and security of all
of said bonds and coupons of all series issued or to be issued
under the Indenture shall take effect from the date of the
initial issuance of bonds under the Indenture, and that the Lien
and security of the Indenture shall take effect from said date as
though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date.
PROVIDED, HOWEVER, these presents are upon the
condition that if the Company, its successors or assigns, shall
pay or cause to be paid, the principal of and interest on said
bonds, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or
to become due thereon for principal and interest, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by it, then the Indenture and the estate and rights
granted under the Indenture shall cease, determine and be void,
otherwise to be and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by the
Company that all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to
the property hereinbefore described and conveyed and to the
estate, rights, obligations and duties of the Company and the
Trustees and their successor or successors as Trustees in such
trust in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the
execution of the Original Indenture and had been specifically and
at length described in and conveyed to said Trustees by the
Original Indenture as a part of the property therein stated to be
conveyed.
The Company further covenants and agrees to and with
the Trustees and their successor or successors in such trust as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Terms From the Original Indenture
. All defined terms used in this Seventeenth
Supplemental Indenture and not otherwise defined herein shall
have the respective meanings ascribed to them in the Original
Indenture.
Section 1.02. Certain Defined Terms
. As used in this Seventeenth Supplemental Indenture,
the following defined terms shall have the respective meanings
specified unless the context clearly requires otherwise:
The term "Ambac" shall have the meaning specified in
Section 2.03.
The term "Business Day" shall mean any day other than
a Saturday or a Sunday or a day on which banking institutions in
The City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate
Trust Office of the Trustee is closed for business.
The term "Insurance Agreement" shall have the meaning
specified in Section 2.03.
The term "Insurance Event" shall have the meaning
specified in Section 2.03.
The term "Twenty-third Series" shall have the meaning
specified in Section 2.01.
Section 1.03. References Are to Seventeenth 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 Seventeenth Supplemental Indenture,
and the words "herein", "hereof", "hereby", "hereunder" and words
of similar import refer to this Seventeenth Supplemental
Indenture as a whole and not to any particular Article, Section
or other subdivision hereof or to the Original Indenture or any
other supplemental indenture thereto.
Section 1.04. Number and Gender
. Unless the context otherwise requires, defined terms
in the singular include the plural, and in the plural include the
singular. The use of a word of any gender shall include all
genders.
ARTICLE II
THE TWENTY-THIRD SERIES
SECTION 2.01. Bonds of the Twenty-third Series
. There shall be a series of bonds designated as the
6% Series due November 1, 2032 (herein sometimes referred to as
the "Twenty-third Series"), each of which shall also bear the
descriptive title "First Mortgage Bond" as permitted by Section
2.01 of the Original Indenture. The form of bonds of the Twenty-
third Series shall be substantially in the form of Exhibit A
hereto. Bonds of the Twenty-third Series shall mature on
November 1, 2032 and shall be issued only as fully registered
bonds in denominations of Twenty-five 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 Twenty-third Series shall bear
interest at the rate of Six per centum (6%) per annum (except as
hereinafter provided), payable quarterly on February 1, May 1,
August 1 and November 1 of each year, and at maturity or earlier
redemption, the first interest payment to be made on February 1,
2003, for the period from the date of original issuance of the
bonds of the Twenty-third Series to February 1, 2003; the
principal of and premium, if any, and interest on each said bond
to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, in such
coin or currency of the United States of America as at the time
of payment is legal tender for public and private debts.
Interest on the bonds of the Twenty-third 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 Twenty-third Series shall bear
interest (before and after judgment) at the rate of Seven per
centum (7%) per annum (to the extent that payment of such
interest on any overdue interest is not prohibited under
applicable law). Interest on the bonds of the Twenty-third
Series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest on the bonds of the
Twenty-third Series in respect of a portion of a month shall be
calculated based on the actual number of days elapsed. In any
case where any interest payment date, redemption date or maturity
of any bond of the Twenty-third Series shall not be a Business
Day, then payment of interest or principal, need not be made on
such date, but may be made on the next succeeding Business Day,
with the same force and effect, and in the same amount, as if
made on the corresponding interest payment date or redemption
date, or at maturity, as the case may be, and, if such payment is
made or duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and after
such interest payment date, redemption date or maturity, as the
case may be, to such Business Day.
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 Twenty-
third Series and to provide for exchangeability of such coupon
bonds with the bonds of said Series issued hereunder in fully
registered form and to make all appropriate provisions for such
purpose.
Section 2.02. Optional Redemption of Bonds of the Twenty-third
Series.
(a) Except as provided in clause (b) below, bonds of the
Twenty-third Series shall not be redeemable at the option of the
Company or otherwise prior to November 1, 2007. On or after
November 1, 2007, bonds of the Twenty-third Series shall be
redeemable at the option of the Company, in whole or in part,
upon notice mailed to each registered owner at his last address
appearing on the registry books not less than 30 days nor more
than 60 days prior to the date fixed for redemption, at a
redemption price equal to 100% of the principal amount of such
bonds of the Twenty-third Series to be redeemed plus accrued and
unpaid interest thereon to such redemption date.
(b) Bonds of the Twenty-third Series shall also be
redeemable in whole or in part, at any time prior to maturity,
upon like notice, by the application (either at the option of the
Company or pursuant to the requirements of the Original
Indenture) of cash delivered to or deposited with the Trustee
pursuant to the provisions of Sections 9.05 and 11.06 of the
Original Indenture, at the special redemption price of 100% of
the principal amount of the bonds of the Twenty-third Series to
be redeemed, plus accrued and unpaid interest thereon to the
redemption date.
Section 2.03. Mandatory Redemption of Bonds of the Twenty-third
Series.
The Company shall redeem the bonds of the Twenty-third
Series, in whole but not in part, prior to maturity, upon notice
mailed to each registered owner at his last address appearing on
the registry books not less than 30 days nor more than 60 days
prior to the date fixed for redemption, at the redemption price
of 100% of the principal amount of the bonds of the Twenty-third
Series, plus accrued and unpaid interest thereon to the
redemption date, upon the occurrence of an event of default
pursuant to the Insurance Agreement dated October 22, 2002 ("the
Insurance Agreement") between the Company and Ambac Assurance
Corporation ("Ambac"), which event of default will be deemed to
have occurred if, and only if, (i) the Company breached its
obligations under Section 3.01 of the Insurance Agreement and
such breach continues for more than 60 days after the receipt by
the Company of written notice of such breach from Ambac, or (ii)
the Company failed to pay the portion of the premium payable
annually in respect of the period from and after November 1,
2007, as provided in Section 1.02(b) of the Insurance Agreement
and such failure continues for more than 60 days after the
receipt by the Company of written notice of such failure by Ambac
(each of (i) and (ii), individually, an "Insurance Event").
Subject to the notice to holders provisions provided in this
Section 2.03, the Company shall redeem bonds of the Twenty-third
Series pursuant to the prior sentence as follows: (i) on November
1, 2007 if the Insurance Event occurs on or prior to September 2,
2007, or (ii) if the Insurance Event occurs on or after September
3, 2007, within 60 days of such occurrence of the Insurance
Event, but in no event earlier than November 1, 2007.
Section 2.04. Insurance Provisions.
To the extent permitted by law and so long as Ambac
is in compliance with its obligations under its Financial
Guaranty Insurance Policy No. 20125BE ("Policy") and is not
subject to any bankruptcy, insolvency or similar proceedings:
(a) notwithstanding any other provision of the Indenture,
Ambac shall be entitled to control and direct the enforcement of
all rights and remedies with respect to the bonds of the Twenty-
third Series (including but not limited to any right to
accelerate bonds of the Twenty-third Series and any right to vote
for approval of any plan of reorganization or liquidation) upon
the occurrence and continuation of a default under the Indenture
to the same extent as if it were the holder of the bonds of the
Twenty-third Series; and
(b) no consent of any holder of bonds of the Twenty-third
Series to any amendment, supplement or change to, or other
modification of, the Indenture shall be effective without the
prior written consent of Ambac.
Section 2.05. Transfer and Exchange.
(a) At the option of the registered owner, any bonds of the
Twenty-third Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
(b) Bonds of the Twenty-third Series shall be transferable,
upon the surrender thereof for cancellation, together with a
written instrument of transfer in form approved by the registrar
duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York.
(c) Upon any such exchange or transfer of bonds of the
Twenty-third 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 Twenty-third Series.
Section 2.06. Dating of Bonds and Interest Payments.
(a) Each bond of the Twenty-third Series shall be dated as
of the date of authentication and shall bear interest from the
last preceding interest payment date to which interest shall have
been paid (unless the date of such bond is an interest payment
date to which interest is paid, in which case from the date of
such bond); provided that each bond of the Twenty-third Series
dated prior to February 1, 2003, shall bear interest from the
date of original issuance; and provided, further, that if any
bond of the Twenty-third 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 Twenty-third Series upon which
interest is in default, it shall be dated so that such bond shall
bear interest from the last preceding date to which interest
shall have been paid on the bond or bonds in respect of which
such bond shall have been delivered or from its date of original
issuance if no interest shall have been paid on the bonds of the
Twenty-third Series.
(b) Notwithstanding the foregoing, bonds of the Twenty-
third Series shall be dated so that the Person in whose name any
bond of the Twenty-third Series is registered at the close of
business on the Business Day immediately preceding an interest
payment date shall be entitled to receive the interest payable on
the interest payment date, except if, and to the extent that, the
Company shall have defaulted in the payment of the interest due
on such interest payment date, in which case such defaulted
interest shall be paid to the Persons in whose names Outstanding
bonds of the Twenty-third Series are registered at the close of
business on the Business Day immediately preceding the date of
payment of such defaulted interest.
ARTICLE III
COVENANTS
SECTION 3.01. Maintenance of Paying Agent
. So long as any bonds of the Twenty-third Series are
Outstanding, the Company covenants that the office or agency of
the Company in the Borough of Manhattan, The City of New York,
New York where the principal of and premium, if any, or interest
on any bonds of such series shall be payable shall also be an
office or agency where any such bonds may be transferred or
exchanged and where notices, presentations or demands to or upon
the Company in respect of such bonds or in respect of the
Indenture may be given or made.
Section 3.02. Further Assurances
. From time to time whenever reasonably requested by
the Trustee or the holders of a majority in aggregate principal
amount of the bonds of the Twenty-third Series then Outstanding,
the Company will make, execute and deliver or cause to be made,
executed and delivered any and all such further and other
instruments and assurances as may be reasonably necessary or
proper to carry out the intention of or to facilitate the
performance of the terms of the Indenture or to secure the rights
and remedies of the holders of such bonds.
Section 3.03. Limitation on Restricted Payments.
(a) So long as any bonds of the Twenty-third Series are
Outstanding, the Company covenants that it will not declare any
dividends on its common stock (other than (1) a dividend payable
solely in shares of its common stock or (2) a dividend payable in
cash in cases where, concurrently with the payment of such
dividend, an amount in cash equal to such dividend is received by
the Company as a capital contribution or as the proceeds of the
issue and sale of shares of its common stock) or make any
distribution on outstanding shares of its common stock or
purchase or otherwise acquire for value any outstanding shares of
its common stock (otherwise than in exchange for or out of the
proceeds from the sale of other shares of its common stock)
unless, after giving effect to such dividend, distribution,
purchase or acquisition, the aggregate amount of such dividends,
distributions, purchases or acquisitions paid or made subsequent
to September 30, 2002 (other than any dividend declared by the
Company on or before September 30, 2002) 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 September 30, 2002 to earned surplus, (B)
$250,000,000 and (C) such additional amounts as shall be
authorized or approved, upon application by the Company and after
notice, by the SEC under the Holding Company Act.
(b) For the purpose of this Section, the aggregate amount
credited subsequent to September 30, 2002 to earned surplus shall
be determined in accordance with generally accepted accounting
principles and practices (or, if in the opinion of the Company's
independent public accountants (delivered to the Trustee), there
is an absence of any such generally accepted accounting
principles and practices as to the determination in question,
then in accordance with sound accounting practices) and after
making provision for dividends upon any preferred stock of the
Company accumulated subsequent to such date, and in addition
there shall be deducted from earned surplus all amounts (without
duplication) of losses, write-offs, write-downs or amortization
of property, whether extraordinary or otherwise, recorded in and
applicable to a period or periods subsequent to September 30,
2002. 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.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Acceptance of Trusts
. The Trustees hereby accept the trusts herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustees shall not be responsible in any
manner whatsoever for or in respect of the validity or
sufficiency of this Seventeenth Supplemental Indenture
or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
In general, each and every term and condition contained
in Article XVI of the Original Indenture shall apply to
and form part of this Seventeenth 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 Seventeenth Supplemental Indenture.
Section 4.02. Effect of Seventeenth 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 Seventeenth 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 Seventeenth 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 mortagagee and pledgee in trust for the
benefit of themselves and of all present and future holders of
the bonds of the Twenty-third Series and any coupons thereto
issued hereunder, and are irrevocably appointed special agents
and representatives of the holders of the bonds and coupons
issued hereunder and vested with full power in their behalf to
effect and enforce the mortgage and pledge hereby constituted for
their benefit, or otherwise to act as herein provided for.
Section 4.03. Record Date
. The holders of the bonds of the Twenty-third 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 Twenty-
third Series entitled to consent to any amendment or supplement
to the Indenture or the waiver of any provision thereof or any
act to be performed thereunder. If a record date is fixed, those
persons who were holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such persons continue to
be holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
Section 4.04. Titles
. The titles of the several Articles and Sections of
this Seventeenth Supplemental Indenture and the table of contents
shall not be deemed to be any part hereof.
Section 4.05. Counterparts
. This Seventeenth Supplemental Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
Section 4.06. Governing Law
. The internal laws of the State of New York shall
govern this Seventeenth Supplemental Indenture and the bonds of
the Twenty-third 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.
Section 4.07. Recitals
. The recitals set forth in the initial pages of this
Seventeenth Supplemental Indenture and the exhibits attached
hereto are incorporated herein by reference, and this Seventeenth
Supplemental Indenture shall be construed in the light thereof.
IN WITNESS WHEREOF, ENTERGY MISSISSIPPI, INC. has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board,
Chief Executive Officer, President or one of its Vice Presidents,
and its corporate seal to be attested by its Secretary or one of
its Assistant Secretaries for and in its behalf, and THE BANK OF
NEW YORK 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 Vice Presidents, Assistant Vice
Presidents or Assistant Secretaries for and on its behalf, and
XXXXXXX X. XXXXXXXXX has hereunto set his hand and affixed his
seal, all as of the day and year first above written.
ENTERGY MISSISSIPPI, INC.
By:
Xxxxxx X. XxXxxx
Vice President and Treasurer
Attest:
_______________________
Xxxxxxxxxxx X. Screen
Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By:
Xxxxxx X. Xxxxxxxxxx
Vice President
Attest:
______________________
Xxx Xxxxx
Vice President
By:
XXXXXXX X. XXXXXXXXX,
as Co-Trustee
STATE OF LOUISIANA )
) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned
authority in and for the aforesaid Parish and State, the within
named Xxxxxx X. XxXxxx, Vice President and Treasurer and
Xxxxxxxxxxx X. Screen, Assistant Secretary of ENTERGY
MISSISSIPPI, INC., who acknowledged that they signed, attached
the corporate seal of the corporation thereto and delivered the
foregoing instrument on the day and year therein stated, by the
authority and as the act and deed of the corporation.
On the ____ day of October, 2002, before me personally
came Xxxxxx X. XxXxxx, to be known to me, who, being by me duly
sworn, did depose and say that he resides at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000; that he is the Vice President and
Treasurer of ENTERGY MISSISSIPPI, INC., the corporation described
in and which executed the above instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Given under my hand and seal this _____ day of October
2002.
Xxxxxx Xxxxx
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named Xxxxxx X. Xxxxxxxxxx as Vice President, and Xxx Xxxxx, as
Vice President of THE BANK OF NEW YORK, who acknowledged that
they signed, attached the corporate seal of the corporation
thereto and delivered the foregoing instrument on the day and
year therein stated, by the authority and as the act and deed of
the corporation.
On the ___ day of October, 2002, before me personally
came Xxxxxx X. Xxxxxxxxxx to me known, who, being by me duly
sworn, did depose and say that he resides at 00 Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxx, Xxx Xxxx 00000; that he is a Vice President of THE
BANK OF NEW YORK, 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 her name thereto by like order.
Given under my hand and seal this ___ day of October
2002.
________________________
Xxxxxxx Xxxxxxx
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires ___________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned
authority in and for the aforesaid County and State, the within
named XXXXXXX X. XXXXXXXXX, who acknowledged that he signed,
sealed and delivered the foregoing instrument on the day and year
therein mentioned.
On the ___ day of October, 2002, before me personally
came XXXXXXX X. XXXXXXXXX to me known to be the person described
in and who acknowledged the foregoing instrument, and
acknowledged that he executed the same.
Given under my hand and seal this ___ day of October,
2002
________________________
Xxxxxxx Xxxxxxx
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires ___________
EXHIBIT A
[FORM OF BOND OF TWENTY-THIRD SERIES]
[(See legend at the end of this bond for
restrictions on transferability and change of form)]
FIRST MORTGAGE BOND
6% Series due November 1, 2032
No. R-1 CUSIP______
ENTERGY MISSISSIPPI, INC. (formerly Mississippi Power &
Light Company), a corporation duly organized and validly existing
under the laws of the State of Mississippi (hereinafter called
the Company), for value received, hereby promises to pay to
__________ or registered assigns, at the office or agency of the
Company in New York, New York, the principal sum of $_______ on
November 1, 2032, 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 of original issuance,
if the date of this bond is prior to February 1, 2003 or, if the
date of this bond is on or after February 1, 2003, from the
February 1, May 1, August 1 or November 1 immediately preceding
the date of this bond to which interest has been paid (unless the
date hereof is an interest payment date to which interest has
been paid, in which case from the date hereof), at the rate of
Six per centum (6%) per annum in like coin or currency on
February 1, May 1, August 1 and November 1 in each year and at
maturity or earlier redemption, until the principal of this bond
shall have become due and been duly paid or provided for, and to
pay interest (before and after judgment) on any overdue
principal, premium, if any, and (to the extent that payment of
such interest on any overdue interest is not prohibited under
applicable law) on any defaulted interest at the rate of Seven
per centum (7%) 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 on the Business Day
immediately preceding such interest payment date. At the option
of the Company, interest may be paid by check mailed on or prior
to such interest payment date to the address of the person
entitled thereto as such address shall appear on the register of
the Company.
This bond shall not become obligatory until The Bank of
New York, the Trustee under the Mortgage, as hereinafter defined,
or its respective successor or successors thereunder, shall have
signed the authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its First Mortgage Bonds, 6% Series due November 1, 2032
(herein called bonds of the Twenty-third Series), all bonds of
all series issued under and equally secured by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, called the Mortgage), dated as of February 1, 1988, duly
executed by the Company to The Bank of New York (successor to
Bank of Montreal Trust Company), and Xxxxxxx X. Xxxxxxxxx
(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 Twenty-third 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 $25.00 and integral multiples
thereof. At the office or agency to be maintained by the Company
in the City of New York, State of New York, and in the manner and
subject to the provisions of the Mortgage, bonds may be exchanged
for a like aggregate principal amount of bonds of other
authorized denominations, without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or
other governmental charge incident thereto. This bond is
transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by his duly authorized attorney, at
the office or agency of the Company in New York, New York, upon
surrender of this bond, and upon payment, if the Company shall
require it, of the transfer charges provided for in the Mortgage,
and, thereupon, a new fully registered bond of the same series
for a like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is redeemable at the option of the Company as
provided in the Mortgage.
No recourse shall be had for the payment of the
principal of, premium, if any, or interest on this bond against
any incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be
governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has
caused this bond to be signed in its corporate name by its
Chairman of the Board, Chief Executive Officer, President or one
of its Vice Presidents by his or her signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries by his signature or a facsimile thereof.
Dated:
ENTERGY MISSISSIPPI, INC.
By:________________________________
Xxxxxx X. XxXxxx
Vice President and Treasurer
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.
THE BANK OF NEW YORK,
as Trustee
By:
___________________________________
Authorized Signatory
[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).]
Financial Guaranty Insurance Policy No. 20125BE (the
"Policy") with respect to payments due for principal of and
interest on this bond has been issued by Ambac Assurance
Corporation ("Ambac Assurance"). The Policy has been delivered to
The Bank of New York, New York, New York, as the Insurance
Trustee under said Policy and will be held by such Insurance
Trustee or any successor insurance trustee. The Policy is on file
and available for inspection at the principal office of the
Insurance Trustee and a copy thereof may be secured from Ambac
Assurance or the Insurance Trustee. All payments required to be
made under the Policy shall be made in accordance with the
provisions thereof. The owner of this bond acknowledges and
consents to the subrogation rights of Ambac Assurance as more
fully set forth in the Policy.
