File No. 70-7914
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form U-1
Post-Effective Amendment No. 19 to the
APPLICATION-DECLARATION
under
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Mississippi Power & Light Company
P.O. Box 1640
Jackson, Mississippi 39215-1640
(Name of company filing this statement and address
of principal executive offices)
Entergy Corporation
(Name of top registered holding company parent of
each applicant or declarant)
Donald E. Meiners
President
Mississippi Power & Light Company
P.O. Box 1640
Jackson, Mississippi 39215-1640
(Name and address of agent for service)
The Commission is also requested to send copies of any
communications in connection with this matter to:
Laurence M. Hamric, Esq.
Entergy Services, Inc.
225 Baronne Street
New Orleans, Louisiana 70112
Glenn E. Harder Henderson Hall, Esq.
Vice President-Financial Wise Carter Child & Caraway
Strategies and Treasurer Professional Association
Mississippi Power & Light Company P.O. Box 651
P.O. Box 61000 Jackson, Mississippi 39205
New Orleans, Louisiana 70161
Bonnie Wilkinson, Esq. David P. Falck, Esq.
Reid & Priest Winthrop, Stimson, Putnam
40 West 57th Street & Roberts
New York, New York 10019 One Battery Park Plaza
New York, New York 10004
<PAGE>
Item 2. Fees, Commissions and Expenses.
Item 2 in this proceeding is hereby amended by adding
the following to the end thereof:
The fees and expenses to be incurred in connection with
the issuance and sale of the Tax-Exempt Bonds are estimated not
to exceed the following:
Each
Sale
*Rating Agencies' fees $ 50,000
*Trustees' fees 10,000
*Fees of Bond Counsel 64,000
*Fees of State Bond Commission 25,000
*Fees of Company's Counsel:
Wise Carter Child & Caraway
Professional Association 15,000
Reid & Priest 25,000
*Fees of Entergy Services, Inc. 15,000
*Accountants' fees 12,000
*Printing and engraving costs 20,000
*Miscellaneous expenses (including
blue sky expenses) 14,000
*Total Expenses $250,000
* Estimated.
Item 6. Exhibits and Financial Statements.
(a) Exhibits:
B-5 - Proposed form of Indenture.
B-6 - Proposed form of Installment Sale
Agreement.
F-1(m) - Opinion of Wise Carter Child & Caraway,
Professional Association.
F-2(m) - Opinion of Reid & Priest.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned company has duly
caused this amendment to be signed on its behalf by the
undersigned thereunto duly authorized.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/ Glenn E. Harder
Glenn E. Harder
Vice President - Financial
Strategies and Treasurer
Dated: February 22, 1994
Exhibit B-5
WARREN COUNTY, MISSISSIPPI
to
DEPOSIT GUARANTY NATIONAL BANK, Trustee
__________________
TRUST INDENTURE
__________________
Dated as of ___________, 1994
__________________
Pollution Control Revenue Refunding Bonds, 1994 Series
(Mississippi Power & Light Company Project)
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Trust Indenture)
Page
PARTIES
RECITALS
Form of Registered Bond
Form of Trustee's Certificate of
Authentication
Form of Registration and Validation
Certificate
GRANTING CLAUSE
ARTICLE I
DEFINITIONS
ARTICLE II
The Bonds
SECTION 2.01. Authorized Amount of Bonds
SECTION 2.02. Issuance of Bonds
SECTION 2.03. Form of Bonds
SECTION 2.04. Details, Execution and Payment
SECTION 2.05. Authentication, Exchange, Transfer
and Ownership of Bonds
SECTION 2.06. Delivery of Bonds
SECTION 2.07. Temporary Bonds
SECTION 2.08. Mutilated, Destroyed or Lost Bonds
SECTION 2.09. Destruction of Bonds
ARTICLE III
Redemption of Bonds Before Maturity
SECTION 3.01. Redemption Dates and Prices
SECTION 3.02. Notice of Redemption
SECTION 3.03. Effect of Call for Redemption
SECTION 3.04. Partial Redemption
SECTION 3.05. Funds in Trust; Unclaimed Funds
ARTICLE IV
General Covenants
SECTION 4.01. Payment of Principal, Premium, if any,
and Interest
SECTION 4.02. Performance of Covenants; County
SECTION 4.03. Instruments of Further Assurance; Liens
and Encumbrances
SECTION 4.04. Recordation
SECTION 4.05. Rights Under Agreement
SECTION 4.06. Designation of Additional Paying
Agents
ARTICLE V
Revenue and Funds
SECTION 5.01. Source of Payment of Bonds
SECTION 5.02. Creation of Bond Fund
SECTION 5.03. Payments into the Bond Fund
SECTION 5.04. Use of Moneys in the Bond Fund
SECTION 5.05. Custody of the Bond Fund
SECTION 5.06. Bond Redemption Fund
SECTION 5.07. Payments into Bond Redemption Fund
SECTION 5.08. Use of Moneys in Bond Redemption Fund
SECTION 5.09. Non-presentment of Bonds
SECTION 5.10. Moneys to be Held in Trust
SECTION 5.11. Repayment to the Company from
Bond Fund
ARTICLE VI
Investments
SECTION 6.01. Investment of Moneys
ARTICLE VII
Discharge of Indenture
SECTION 7.01. Discharge of Indenture
ARTICLE VIII
Default Provisions and Remedies of Trustee
and Bondholders
SECTION 8.01. Defaults; Events of Default
SECTION 8.02. Acceleration
SECTION 8.03. Other Remedies
SECTION 8.04. Legal Proceedings by Trustee
SECTION 8.05. Right of Bondholders to Direct
Proceedings
SECTION 8.06. Appointment of Receivers
SECTION 8.07. Waiver
SECTION 8.08. Application of Moneys
SECTION 8.09. Remedies Vested in the Trustee
SECTION 8.10. Rights and Remedies of Bondholders
SECTION 8.11. Termination of Proceedings
SECTION 8.12. Waivers of Events of Default
SECTION 8.13. Notice of Defaults Under Section 8.01(c);
Opportunity of County and Company
to Cure Such Defaults
ARTICLE IX
The Trust
SECTION 9.01. Acceptance of the Trusts
SECTION 9.02. Fees, Charges and Expenses of Trustee
SECTION 9.03. Notice to Bondholders if Default
Occurs
SECTION 9.04. Intervention by Trustee
SECTION 9.05. Successor Trustee
SECTION 9.06. Resignation by Trustee
SECTION 9.07. Removal of Trustee
SECTION 9.08. Appointment of Successor Trustee by the
Bondholders; Temporary Trustee
SECTION 9.09. Concerning Any Successor Trustee
SECTION 9.10. Right of Trustee to Pay Taxes and
Other Charges
SECTION 9.11. Successor Trustee as Bond Registrar,
Custodian of Construction Fund and
Bond Fund and Paying Agent
SECTION 9.12. Trustee and County Required to Accept
Directions and Actions of Company
ARTICLE X
Indentures Supplemental Hereto
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders
SECTION 10.02. Supplemental Indentures Requiring Consent
of Bondholders
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel
ARTICLE XI
Amendment of Agreement
SECTION 11.01. Amendments, etc., to Agreement Not Requiring
Consent of Bondholders
SECTION 11.02. Amendments, etc., to Agreement Requiring
Consent of Bondholders
SECTION 11.03. Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel
ARTICLE XII
Miscellaneous
SECTION 12.01. Consents, etc., of Bondholders
SECTION 12.02. Limitation of Rights
SECTION 12.03. Severability
SECTION 12.04. Notices
SECTION 12.05. Trustee as Paying Agent and Bond
Registrar
SECTION 12.06. Payments Due on Sundays and Holidays
SECTION 12.07. Counterparts
SECTION 12.08. Applicable Provisions of Law
SECTION 12.09. Captions
SECTION 12.10. No Liability of County
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the first day of _________,
1994, made and entered into by and between Warren County, a
public body corporate and politic and a political subdivision of
the State of Mississippi (the "County"), and Deposit Guaranty
National Bank, a banking corporation duly organized, existing and
authorized to accept and execute trusts of the character herein
set out under the laws of the United States of America, with its
principal office in the City of Jackson, Mississippi, as Trustee
(the "Trustee").
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
constitution and the laws of the State of Mississippi, especially
Sections 49-17-101 through 49-17-123, Mississippi Code of 1972,
as amended (hereinafter called the "Pollution Control Act"), to
acquire, purchase, construct, enlarge, expand and improve
facilities for eliminating, mitigating, and/or preventing air and
water pollution, to issue revenue bonds to defray the cost of
such facilities, and to execute an agreement with an industry (as
defined in the Pollution Control Act) for the sale of such
facilities to such industry; and
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the County has heretofore on
October 3, 1974, issued $8,575,000 principal amount of its
Pollution Control Revenue Bonds, Series A (Mississippi Power &
Light Company Project) (the "Prior Bonds") pursuant to a Trust
Indenture dated as of September 1, 1974, whereunder Deposit
Guaranty National Bank is trustee (the "Prior Indenture"); and
WHEREAS, the Prior Bonds were issued to defray the cost of
acquisition, construction, installation and equipping of certain
air and water pollution control facilities (the "Project") at the
Baxter Wilson Steam Electric Station (the "Plant") of Mississippi
Power & Light Company, a corporation authorized and existing
under the laws of the State of Mississippi and an "industry" as
defined in the Pollution Control Act (the "Company"), located at
770 Kemp Bottom Road, Vicksburg, Mississippi, within the County;
the Project was sold by the County to the Company pursuant to an
Installment Sale Agreement between the County and the Company
dated as of September 1, 1974 (the "Prior Agreement"); the
Company is now the owner and operator of the Plant and the
Project;
WHEREAS, at the request of the Company, the County proposes,
pursuant to Sections 31-15-21 through 31-15-27, Mississippi Code
of 1972, as amended (the "Act"), a resolution duly and validly
adopted by the County on ____________, 1994 (the "Issuing
Resolution") and this Indenture, to issue its Pollution Control
Revenue Refunding Bonds, 1994 Series (Mississippi Power & Light
Company Project) in the aggregate principal amount of $8,095,000
(the "Bonds") for the purpose of providing funds, which, together
with other funds to be made available therefor by the Company,
will be sufficient to refund all of the Prior Bonds then
outstanding, including providing for the payment of any
redemption premium due or to become due thereon, interest to
accrue to the selected redemption date, any sinking fund
maturities to become due prior to the selected redemption date
and all expenses in connection with such refunding; and
WHEREAS, the County has confirmed and continued the
installment sale of the Project to the Company pursuant to the
terms and conditions of an Amended and Restated Installment Sale
Agreement between the County and the Company dated as of
____________, 1994 (the "Agreement"), which fully amends and
restates the Prior Agreement, and the County proposes to refund
the Prior Bonds pursuant to the terms and conditions set forth in
this Indenture by the issuance of the Bonds; and
WHEREAS, the Bonds in registered form and the Trustee's
Certificate of Authentication and Clerk's Registration and
Validation Certificates to be endorsed thereon are to be in
substantially the following form, with appropriate variations,
omissions and insertions as permitted or required by this
Indenture, to wit:
<PAGE>
[FORM OF REGISTERED BOND]
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
WARREN COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
1994 SERIES
(MISSISSIPPI POWER & LIGHT COMPANY PROJECT)
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
REGISTERED OWNER:
PRINCIPAL SUM:
KNOW ALL MEN BY THESE PRESENTS THAT WARREN COUNTY,
MISSISSIPPI (the "Issuer"), a body politic and corporate and a
political subdivision duly created and validly existing pursuant
to the laws and constitution of the State of Mississippi (the
"State"), for value received, promises to pay, solely from the
source and as hereinafter provided, to the registered owner named
above, or registered assigns, the principal sum specified above
on the maturity date specified above (or earlier as hereinafter
referred to) and in like manner and solely from the same source
to pay interest on said sum from the date hereof at the rate of
________ per centum (____%) per annum, on ___________, 1994, and
semi-annually thereafter on ___________ and ___________ of each
year until the principal sum is paid or duly provided for.
Interest on the Bonds shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Principal and premium,
if any, and interest on this Bond are payable in lawful money of
the United States of America at the principal corporate trust
office of Deposit Guaranty National Bank, One Deposit Guaranty
Plaza, P. O. Box 1200, Jackson, Mississippi 39215-1200, as
trustee under the Indenture referred to on the reverse hereof, or
its successor in trust (the "Trustee"). Interest hereon shall be
payable to the person in whose name this Bond is registered at
the close of business on the day of the each interest payment
date (whether or not such date is a Business Day); such interest
shall be paid by clearinghouse check mailed to the person
entitled thereto.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE HEREOF WHICH SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
that the issuance of this Bond and the issue of which it forms a
part do not exceed or violate any constitutional or statutory
limitation; and that provision has been made in the Indenture for
the deposit, but only from revenues thereunder pledged to the
payment of the principal of, premium, if any, and interest on
this Bond and the issue of which it forms a part, of moneys
sufficient in amount for such purposes.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, WARREN COUNTY, MISSISSIPPI, has caused
this Bond to be executed in its name on its behalf by the manual
or facsimile signature of the President of the Board of
Supervisors, its corporate seal or a facsimile thereof to be
hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of the
Clerk of the Board of Supervisors of Warren County, Mississippi,
all as of this ______ day of ___________, 1994.
WARREN COUNTY, MISSISSIPPI
[SEAL] By:
President, Board of Supervisors
ATTEST:
By: ___________________________
Clerk, Board of Supervisors
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
DATED:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated in
and issued under the provisions of the within-mentioned
Indenture. Printed on the reverse side hereof is the complete
text of the Opinion of Bond Counsel, Watkins Ludlam & Stennis,
Jackson, Mississippi, a signed original of which is on file with
the undersigned.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
By:___________________________
Authorized Signatory
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OF THE
FORM OF BONDS)
This Bond is one of the Issuer's Pollution Control Revenue
Refunding Bonds, 1994 Series (Mississippi Power & Light Company
Project) aggregating $8,095,000 in principal amount (the "Bonds")
issued pursuant to the provisions of Sections 31-15-21 through 31-
15-27, Mississippi Code of 1972, as amended (the "Act") and the
Constitution of the State, for the purpose of providing funds,
which, together with other funds to be made available therefor,
will be used to refund all of the Issuer's outstanding Pollution
Control Revenue Bonds, Series A (Mississippi Power & Light
Company Project) (the "Prior Bonds"). The Prior Bonds were
issued on October 3, 1974, to defray the cost of acquisition,
construction, installation and equipping of certain air and water
pollution control facilities (the "Project") at the Baxter Wilson
Steam Electric Station (the "Plant") of Mississippi Power & Light
Company (the "Company"), located at 770 Kemp Bottom Road,
Vicksburg, Mississippi, within the Issuer; the Project was sold
by the Issuer to the Company pursuant to an Installment Sale
Agreement between the Issuer and the Company dated as of
September 1, 1974; the Company is the owner and operator of the
Plant and the Project. The Prior Bonds are refunded with the
proceeds of the Bonds and other funds provided by the Company,
pursuant to an Amended and Restated Installment Sale Agreement
between the Issuer and the Company dated as of _______________,
1994 (the "Agreement"). The Bonds are issued under and are
equally and ratably secured by and entitled to the protection of
a Trust Indenture dated as of even date of the Agreement (the
"Indenture") from the Issuer to the Trustee. Reference is hereby
made to the Indenture for a description of the rights, limitation
of rights, duties and obligations of the Issuer, Trustee, Co-
Paying Agents and the holders of the Bonds.
The Bonds are issuable as fully registered in the
denomination of $5,000 or any integral multiple thereof. At the
principal corporate trust office of the Trustee, in the manner
and subject to the limitations, conditions and charges provided
in the Indenture, registered Bonds may be exchanged for an equal
aggregate principal amount of Bonds of authorized denominations,
bearing interest at the same rate and maturing on the same date.
The Bonds are non-callable for redemption prior to
___________, except in the event that the Company shall exercise
its option to prepay the purchase price for the Project as
provided in Sections 8.1(b) through (e) of the Agreement, and
shall so prepay the said purchase price in which event the Bonds
shall be redeemed in whole by the County at any time at the
principal amount thereof plus accrued interest to the redemption
date but without premium.
The Bonds are also subject to redemption by the County prior
to maturity in whole at any time on or after _________________,
or in part by lot, in such manner as the Trustee may determine,
on any interest payment date on or after _________________, at
the redemption prices (expressed as percentages of principal
amount) set forth in the table below plus accrued interest to the
redemption date:
Redemption Period Redemption
(Dates Inclusive) Price ]
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
180 days after a final determination or final action referred to
below, as a whole, at a redemption price equal to the principal
amount thereof plus accrued interest thereon to the date of
redemption, but without premium, if, as a result of any final
determination of a federal court or final action of the Internal
Revenue Service, in a proceeding in which the Company has
received timely notice of and has had an opportunity to
participate at its expense, it is determined that as a result of
the failure of the Company to observe any covenant, agreement or
representation in the Agreement, the interest payable on the
Bonds is not excludable from gross income of a holder of a Bond
(other than a holder who is a "substantial user" or "related
person" within the meaning of Section 147(a) of the Internal
Revenue Code of 1986, as amended, and applicable regulations
promulgated thereunder (the "Code")) under Section 103 of the
Code.
In the event Bonds are called for redemption as aforesaid,
notice thereof identifying the Bonds (or portions of Bonds) to be
redeemed and the applicable redemption price is to be given by
the Trustee not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for redemption by first class
mail, postage prepaid, to the registered owners of the Bonds, but
failure to mail such notice or any defect therein shall not
affect the validity of any proceedings for redemption. Notice of
redemption shall be conditioned upon the deposit of moneys with
the Trustee before the date fixed for redemption and such notice
shall be of no effect unless such moneys are so deposited. On
the date designated for redemption, notice having been given and
moneys for payment of the redemption price and accrued interest
being held by the Trustee, or by any Paying Agents, all as
provided in the Indenture, the Bonds or portions of Bonds so
called for redemption shall become and be due and payable at the
redemption price provided for redemption of such Bonds or such
portions thereof. On such date, interest on such Bonds or such
portions thereof so called for redemption shall cease to accrue.
Such Bonds or such portions thereof so called for redemption
shall cease to be entitled to any benefit or security under the
Indenture, and the holders or registered owners thereof shall
have no rights in respect of such Bonds or such portions thereof
so called for redemption except to receive payment of the
redemption price thereof and accrued interest so held by Trustee
or by any Paying Agents. If a portion of this Bond shall be
called for redemption, a new registered Bond in principal amount
equal to the unredeemed portion hereof will be issued in
authorized denominations to the registered owner upon the
surrender hereof.
This Bond and the issue of which it forms a part are limited
obligations of the Issuer, the principal of, premium, if any, and
interest on which are payable solely out of the revenues and
receipts derived by the Issuer under the Agreement (except to the
extent paid out of moneys attributable to the proceeds derived
from the sale of the Bonds, or to interest and realized profit
from the temporary investment of such proceeds, or to amounts
paid by the Company). The Issuer shall not be obligated to pay
the principal of the Bonds, premium, if any, or the interest
thereon or other costs incident thereto except from the said
revenues and receipts. The Bonds shall never constitute an
indebtedness or pledge of the general credit of the Issuer within
the meaning of any State constitutional provision or statutory
limitation of indebtedness and shall never constitute nor give
rise to a pecuniary liability of the Issuer or a charge against
the general credit or taxing powers of the Issuer, the State or
any political subdivision thereof. The Indenture provides that
moneys sufficient for the prompt payment when due of the
principal of, premium, if any, and interest on the Bonds are to
be paid to the Trustee for the account of the Issuer and
deposited in trust in the Bond Fund described therein, that the
Company's payment obligations under the Agreement have been duly
assigned for that purpose, and that the rights of the Issuer
under the Agreement (other than with respect to certain fees and
administrative expenses and indemnification of the Issuer against
certain costs and risks defined in the Agreement have been
assigned to the Trustee to secure payment of such principal of,
premium, if any, and interest under the Indenture.
The Indenture prescribes the manner in which it may be
discharged, including a provision that the Bonds shall be deemed
to be paid if Governmental Obligations, as defined therein,
maturing as to principal and interest in such amounts and at such
times as will provide sufficient funds to pay the principal of,
premium, if any, and interest on the Bonds and all fees and
expenses of the Trustee and any Co-Paying Agent, shall have been
deposited with the Trustee, after which, and upon the giving of
notice in accordance with the Indenture, the Bonds shall no
longer be secured by or be entitled to the benefits of the
Indenture, except for any such payment from such Governmental
Obligations. In certain events, on the conditions, in the manner
and with the effect set forth in the Indenture, the principal of
all of the Bonds issued under the Indenture and then Outstanding,
together with interest accrued thereon, may become or may be
declared due and payable before the stated maturity thereof,
subject to rescission of acceleration as provided in the
Indenture.
The holder of this Bond shall have no right to institute any
action for the enforcement of the Indenture or for the execution
of any trust thereof, except as provided in the Indenture. The
Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the holders of the
Bonds at any time by the Issuer and the Trustee without the
consent of the holders of the Bonds, and in certain other cases
such modifications may be made only with the consent of the
holders of not less than sixty-six and two-thirds percent (66-
2/3%) in aggregate principal amount of the Bonds at the time
Outstanding, as set forth in the Indenture. Any such consent or
waiver by the holder of this Bond shall be conclusive and binding
upon such holder and upon all future holders of this Bond and of
any Bond issued upon the exchange of this Bond whether or not
notation of such consent or waiver is made upon this Bond. The
Indenture also contains provisions permitting the Trustee to
waive certain past defaults thereunder.
This Bond is transferable by the registered owner hereof in
person or by his attorney or legal representative at the
principal corporate trust Office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in
the Indenture and upon surrender and cancellation of this Bond.
Upon any such transfer the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange for this Bond a new
registered Bond or Bonds, registered in the name of the
transferee, of authorized denominations in aggregate principal
amount equal to the principal amount of this Bond, of the same
maturity and bearing interest at the same rate.
No covenant or agreement contained in this Bond or
the Indenture shall be deemed to be a covenant or agreement of
any officer or employee of the Issuer in his individual capacity,
and neither the members of the Issuer nor any official executing
this Bond shall be liable personally on this Bond or be subject
to any personal liability or accountability by reason of issuance
of this Bond. This Bond is issued with the intent that the laws
of the State shall govern its construction.
<PAGE>
[FORM OF REGISTRATION AND VALIDATION CERTIFICATE]
(To be printed on all Bonds)
REGISTRATION AND VALIDATION CERTIFICATE
STATE OF MISSISSIPPI
[SEAL]
COUNTY OF WARREN
I, the undersigned Clerk of the Board of Supervisors and
Chancery Clerk of Warren County, Mississippi, do hereby certify
that the within Bond has been duly registered by me as an
obligation of said county pursuant to law in a book kept in my
office for that purpose, and has been validated and confirmed by
Decree of the Chancery Court of Warren County, Mississippi,
rendered on the _____ day of _______________, 1994.
[facsimile signature]
Clerk, Board of Supervisors and
Chancery Clerk of Warren County,
Mississippi
<PAGE>
[FORM OF BOND COUNSEL OPINION]
[FORM OF ASSIGNMENT]
(To be endorsed on all Bonds)
ASSIGNMENT
FOR VALUE RECEIVED
the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
the within Bond of
WARREN COUNTY, MISSISSIPPI
and does hereby irrevocably constitute and appoint
______________________________, Attorney to transfer the said
Bond on the books of the within-named Trustee, with full power of
substitution in the premises.
______________________________
Dated:
In the presence of:
______________________________
Signature Guarantee
[END OF FORM OF BOND]
and
WHEREAS, all things necessary to make the Bonds, when
validated by the Chancery Court of Warren County, Mississippi,
authenticated by the Trustee and issued as provided in this
Indenture, the valid, binding and legal limited obligations of
the County according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the amounts
pledged to the payment of principal of, premium, if any, and
interest on the Bonds and a valid assignment of the rights of
Municipality under the Agreement have been done and performed,
and the creation, execution and delivery of this Indenture, and
the creation, execution and issuance of the Bonds, subject to the
terms hereof, have in all respects been duly authorized.
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and of the purchase and acceptance
of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the County in
hand paid by the Trustee at or before the execution and delivery
of this Indenture, the receipt of which is hereby acknowledged,
and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from
time to time be or become holders thereof, and in order to secure
the payment of all the Bonds at any time issued and outstanding
hereunder and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and in
order to secure the performance and observance of all the
covenants, agreements and conditions therein or herein contained;
the County has executed and delivered this Indenture; the County
does hereby grant, bargain, sell, convey, assign and pledge to
the Trustee all rights, title and interests of the County in the
Agreement, including all revenues and receipts received or to be
received thereunder (except for payments for indemnification
under Section 4.6 of the Agreement and payment of fees and
expenses under Section 7.4 of the Agreement), as security for the
payment of the Bonds and the interest and the redemption premium,
if any, thereon and as security for the satisfaction of any other
obligation assumed by it in connection with such Bonds; and it is
mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of all and
singular the present and future holders of the Bonds issued and
to be issued under this Indenture, without preference, priority
or distinction as to lien or otherwise, except as otherwise
hereinafter provided, of any one Bond over any other Bond, by
reason of priority in the issue, sale or negotiation thereof or
otherwise;
PROVIDED, HOWEVER, that if the County, its successors or
assigns shall pay or cause to be paid, the principal of, premium,
if any, and interest on the Bonds due or to become due thereon,
at the times and in the manner mentioned in the Bonds, and shall
cause the payments to be made into the Bond Fund as required
under Article V hereof, or shall provide, as permitted hereby,
for the payment thereof by depositing with the Trustee the entire
amount due or to become due thereon pursuant to the provisions of
Article VII hereof, and shall perform all the covenants and
conditions required of it by this Indenture, and shall pay or
cause to be paid to the Trustee all sums of money due or to
become due to it in accordance with the terms and provisions
hereof, then upon such final payments this Indenture and the
rights hereby granted shall terminate and the Trustee shall give
such written instruments as are necessary to satisfy the lien
hereof; otherwise this Indenture to be and remain in full force
and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and secured
hereunder are to be issued, authenticated and delivered, and all
said property, rights and interest, including, without
limitation, the amounts hereby assigned and pledged, are to be
dealt with and disposed of subject to the terms of this
Indenture, and the County agrees with the Trustee and with the
respective holders and owners from time to time, of said Bonds or
coupons, or any part thereof, as follows:
ARTICLE I.
DEFINITIONS
All words and phrases defined in Article I of the Agreement
shall have the same meaning in this Indenture. In addition to
other definitions herein contained, the following words and
phrases shall have the following meanings:
"bondholder" or "holder" or "owner of the Bonds" means the
registered owner of any Bond.
"default" and "event of default" mean any occurrence or
event specified in Section 8.01 hereof.
"outstanding" or "Bonds outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds cancelled after purchase in the open market
or because of payment at or redemption prior to maturity;
(b) Bonds for the payment or redemption of which cash
funds shall have been theretofore deposited with the Trustee
(whether upon or prior to the maturity or redemption date of
any such Bonds); provided that, if such Bonds are to be
redeemed prior to the maturity thereof, notice of such
redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made therefor,
or waiver of such notice satisfactory in form to the Trustee
shall have been filed with the Trustee; and
(c) Bonds in lieu of which other Bonds have been
authenticated under Section 2.07 hereof.
ARTICLE II.
THE BONDS
Section 2.01. Authorized Amount of Bonds. No Bonds may be
issued under the provisions of this Indenture except in
accordance with this Article II.
Section 2.02. Issuance of Bonds. There shall be initially
issued under and secured by this Indenture Bonds of the County in
the aggregate principal amount of Eight Million Five Hundred
Seventy-Five Thousand Dollars ($8,575,000) for the purpose of
providing funds, which, together with other funds made available
therefor by the Company, are sufficient to refund all of the
outstanding Prior Bonds. The Bonds shall be designated "Warren
County, Mississippi, Pollution Control Revenue Refunding Bonds,
1994 Series (Mississippi Power & Light Company Project)", dated
as of the ____ day of ___________, 1994, shall bear interest from
their date at the rate of ______________ per centum (____%) per
annum, which interest shall be payable _____________ and semi-
annually thereafter on the ____ day of ___________ and
___________ of each year, and shall thereon be stated to mature,
subject to the right of prior redemption as hereinafter set
forth, on the ____ day of ___________, 20__.
The Bonds are and will continue to be payable as to
principal and interest solely out of and secured by an
irrevocable pledge of the revenues to be derived from the sale of
the Project, and any other sums which may be received from or in
connection with the Project, all as provided in this Indenture;
the Bonds will be limited obligations of the County and shall
never constitute nor give rise to any pecuniary liability of the
County or a charge against its general credit or taxing powers,
nor shall the County be obligated to pay the Bonds or the
interest or redemption premium, if any, thereon except from
revenues to be derived from the sale of the Project, and any
other sums which may be received from or in connection with the
Project as provided for herein.
Section 2.03. Form of Bonds. The Bonds are issuable as
fully registered Bonds in denominations of $5,000 or any multiple
thereof. The Bonds shall be substantially in the form
hereinabove set forth, with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture, and may have endorsed thereon such legends or text as
may be necessary or appropriate to conform to any applicable
rules and regulations of any governmental authority or any usage
or requirement of law with respect thereto.
Section 2.04. Details, Execution and Payment. Each
registered Bond shall bear interest from the interest payment
date next preceding the date on which it is authenticated, unless
authenticated prior to __________, 1995, in which event it shall
bear interest from ___________, 1994, and unless authenticated
upon an interest payment date, in which case it shall bear
interest from such interest payment date; provided, however, that
if at the time of authentication of any registered Bond interest
is in default, such Bond shall bear interest from the date to
which interest has been paid.
The registered Bonds shall be executed by the manual or
facsimile signature of the President of the Board of Supervisors
of the County and the seal of the County shall be affixed,
impressed, imprinted or otherwise reproduced thereon and attested
by the manual or facsimile signature of the Clerk of said Board
of Supervisors.
In case any officer whose signature or facsimile signature
shall appear on any Bonds shall cease to be such officer before
the delivery of such Bonds, such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he had remained in office until such
delivery, and also any Bond may be signed by or bear the
facsimile signature of such persons as at the actual time of the
execution of such Bond shall be the proper officers to sign such
Bond although at the date of such Bond such persons may not have
been such officers.
Both the principal of and the interest on the Bonds shall be
payable in any coin or currency of the United States of America
which on the respective dates of payment thereof is legal tender
for the payment of public and private debts. The principal of
all registered Bonds shall be payable at the principal office of
the Trustee, and payment of the interest on each registered Bond
shall be made by the Trustee on each interest payment date to the
person appearing on the registration books of the County
hereinafter provided for as the registered owner thereof, by
check in clearinghouse funds mailed to such registered owner at
his address as it appears on such registration books. Payment of
the principal of all Bonds shall be made upon the presentation
and surrender of such Bonds as the same shall become due and
payable.
Section 2.05. Authentication, Exchange, Transfer and
Ownership of Bonds. Only such of the Bonds as shall have
endorsed thereon a certificate of authentication substantially in
the form hereinabove set forth, duly executed by the Trustee,
shall be entitled to any benefit or security under this
Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the
Trustee upon any such Bond shall be conclusive evidence that such
Bond has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an
authorized officer of the Trustee, but it shall not be necessary
that the same officer sign the certificate of authentication on
all of the Bonds that may be issued hereunder at any one time.
Registered Bonds, upon surrender thereof at the principal
office of the Trustee, together with an assignment duly executed
by the registered owner or his attorney or legal representative
in such form as shall be satisfactory to the Trustee, may, at the
option of the registered owner thereof, be exchanged for an equal
aggregate principal amount of registered Bonds of the same series
and maturity, of any denomination or denominations authorized by
this Indenture, and bearing interest at the same rate and in the
same form as the registered Bonds surrendered for exchange.
The County hereby authorizes the exchange of Bonds at the
principal office of the Trustee.
The Trustee is hereby appointed as Bond Registrar and as
such shall keep books for the registration and for the transfer
of Bonds as provided in this Indenture.
Any registered Bond may be transferred only upon the books
kept for the registration and transfer of Bonds upon surrender
thereof to the Bond Registrar together with an assignment duly
executed by the registered owner or his attorney or legal
representative in such form as shall be satisfactory to the Bond
Registrar. Upon any such transfer the County shall execute and
the Trustee shall authenticate and deliver in exchange for such
Bond a new registered Bond or Bonds, registered in the name of
the transferee, of any denomination or denominations authorized
by this Indenture in an aggregate principal amount equal to the
principal amount of such registered Bond, of the same series and
maturity and bearing interest at the same rate.
In all cases in which Bonds shall be exchanged or registered
Bonds shall be transferred hereunder, the County shall execute
and the Trustee shall authenticate and deliver at the earliest
practicable time Bonds in accordance with the provisions of this
Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee. The
Trustee may make a charge for every such exchange or transfer of
Bonds sufficient to reimburse it for any tax, fee or other
governmental charge required to be paid with respect to such
exchange or transfer, and such charge shall be paid before any
such new Bond shall be delivered. Neither the County nor the
Trustee shall be required to make any such exchange or transfer
of Bonds during the fifteen (15) days immediately preceding an
interest payment date on the Bonds or, in the case of any
proposed redemption of Bonds, during the fifteen (15) days
immediately preceding the selection of Bonds for such redemption
or after such Bonds or any portion thereof has been selected for
redemption.
Any registered owner of any Bond is hereby granted power to
transfer absolute title thereto by assignment thereof to a bona
fide purchaser for value (present or antecedent) without notice
of prior defenses or equities or claims of ownership enforceable
against his assignor or any person in the chain of title and
before the maturity of such Bond. Every prior holder or owner of
any Bond shall be deemed to have waived and renounced all of his
equities or rights therein in favor of every such bona fide
purchaser, and every such bona fide purchaser shall acquire
absolute title thereto and to all rights represented thereby.
Section 2.06. Delivery of Bonds. Upon the execution and
delivery of this Indenture, the County shall execute and deliver
to the Trustee and the Trustee shall authenticate the 1994 Series
Bonds and deliver them to the purchasers thereof as directed by
the County as hereinafter in this Section 2.06 provided.
Prior to the delivery by the Trustee of any such Bonds there
shall be filed with the Trustee:
(a) A copy, certified by the Clerk of the Board of
Supervisors of the County, of the resolution adopted by said
Board of Supervisors authorizing the execution and delivery
of the Agreement and all conveyances provided for therein,
and authorizing the execution of this Indenture and the
issuance of the 1994 Series Bonds.
(b) An executed counterpart of the Agreement.
(c) A request and authorization to the Trustee on
behalf of the County, signed by the President or the Board
of Supervisors of the County, to authenticate and deliver
the 1994 Series Bonds to the purchasers therein identified
upon payment to the Trustee but for the account of the
County, of a sum specified in such request and
authorization. The proceeds of such payment shall be paid
over to the Trustee and deposited pursuant to Article V
hereof.
Section 2.07. Temporary Bonds. Until definitive Bonds are
ready for delivery, there may be executed, and upon request of
the County the Trustee shall authenticate and deliver, in lieu of
definitive Bonds and subject to the same limitations and
conditions, temporary printed, engraved, lithographed or
typewritten Bonds, in the form of fully registered Bonds in
denominations of $5,000 or any multiple thereof, as the County by
resolution may provide, substantially of the tenor hereinabove
set forth and with such appropriate omissions, insertions and
variations as may be required.
If temporary Bonds shall be issued, the County shall cause
the definitive Bonds to be prepared and to be executed and
delivered to the Trustee, and the Trustee, upon presentation to
it at its principal office of any temporary Bond, shall cancel
the same and authenticate and deliver in exchange therefor at the
principal office of the Trustee, without charge to the holder
thereof, a definitive Bond or Bonds of an equal aggregate
principal amount, of the same maturity and bearing interest at
the same rate as the temporary Bond surrendered. Until so
exchanged the temporary Bonds shall in all respects be entitled
to the same benefit and security of this Indenture as the
definitive Bonds to be issued and authenticated hereunder.
Section 2.08. Mutilated, Destroyed or Lost Bonds. In case
any Bond secured hereby shall become mutilated or be destroyed or
lost, the County shall cause to be executed, and the Trustee
shall authenticate and deliver, a new Bond of like date and tenor
in exchange and substitution for and upon the cancellation of
such mutilated Bond, or in lieu of and in substitution for such
Bond, if any, destroyed or lost, upon the holder's paying the
reasonable expenses and charges of the County and the Trustee in
connection therewith and, in the case of a Bond destroyed or
lost, his filing with the Trustee evidence satisfactory to it and
to the County that such Bond or coupons, if any, was destroyed or
lost, and of his ownership thereof, and furnishing the County and
the Trustee indemnity satisfactory to them.
Section 2.09. Destruction of Bonds. Whenever any
outstanding Bonds shall be delivered to the Trustee upon the
cancellation thereof pursuant to this Indenture, upon payment of
the principal amount or interest represented thereby or for
replacement of a mutilated Bond pursuant to Section 2.08 hereof,
such Bonds shall be promptly cancelled and destroyed by the
Trustee and counterparts of a certificate of destruction
evidencing such destruction shall be furnished by the Trustee to
the County and the Company.
ARTICLE IIII.
REDEMPTION OF BONDS BEFORE MATURITY
Section 3.01. Redemption Dates and Prices. The Bonds are
non-callable for redemption prior to __________________, except
in the event that the Company shall exercise its option to prepay
the purchase price for the Project as provided in Sections 8.1(b)
through (e) of the Agreement, and shall so prepay the said
purchase price in which event the 1994 Series Bonds shall be
redeemed in whole by the County at any time at the principal
amount thereof plus accrued interest to the redemption date but
without premium.
The Bonds are also subject to redemption by the County prior
to maturity in whole at any time on or after ___________________,
or in part by lot, in such manner as the Trustee may determine,
on any interest payment date on or after ________________, at the
redemption prices (expressed as percentages of principal amount)
set forth in the table below plus accrued interest to the
redemption date:
Optional
Redemption
Redemption Period Price
_________________ to _______________ ___%
_________________ to _______________ ___
_________________ to _______________ ___
_________________ to _______________ ___
_________________ to _______________ ___
_________________ to _______________ ___
_________________ and thereafter ___
If less than all of the Bonds shall be called for
redemption, the particular Bonds or portions of registered Bonds
to be redeemed shall be selected by the Trustee by lot or in such
other manner as the Trustee in its discretion may determine;
provided, however, that the portion of any registered Bond to be
redeemed shall be in the principal amount of $5,000 or some
multiple thereof, and that, in selecting Bonds for redemption,
the Trustee shall treat each registered Bond as representing that
number of Bonds which is obtained by dividing the principal
amount of such registered Bond by $5,000.
Section 3.02. Notice of Redemption. At least thirty (30)
days before the redemption date of any Bonds the Trustee shall
cause a notice of any such redemption, either in whole or in
part, signed by the County, to be mailed, postage prepaid, to all
registered owners of Bonds to be redeemed in whole or in part at
their addresses as they appear on the registration books
hereinabove provided for, but failure so to mail any such notice
shall not affect the validity of the proceedings for such
redemption. Each such notice shall set forth the date fixed for
redemption, the redemption price to be paid and, if less than all
of the Bonds then outstanding shall be called for redemption, the
distinctive numbers and letters, if any, of such Bonds to be
redeemed and, in the case of registered Bonds to be redeemed in
part only, the portion of the principal amount thereof to be
redeemed. In case any registered Bond is to be redeemed in part
only, the notice of redemption which relates to such Bond shall
state also that on or after the redemption date, upon surrender
of such Bond, a new registered Bond in principal amount equal to
the unredeemed portion of such Bond will be issued.
If at the time of giving of notice of an optional redemption
the County shall not have deposited with the Trustee moneys
sufficient to redeem all the Bonds called for redemption, such
notice shall state that it is conditioned upon the deposit of the
redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no
effect unless such moneys are so deposited.
Section 3.03. Effect of Call for Redemption. On the date so
designated for redemption, moneys for payment of the redemption
price and accrued interest to the redemption date being held by
the Trustee in trust for the holders of the Bonds or portions
thereof to be redeemed, all as provided in this Indenture, the
Bonds or portions of registered Bonds so called for redemption
shall become and be due and payable at the redemption price
provided for redemption of such Bonds or portions of Bonds on
such date, interest on the Bonds or portions of Bonds so called
for redemption shall cease to accrue, the interest on any Bonds
so called for redemption payable subsequent to the redemption
date shall be void, such Bonds or portions of Bonds shall cease
to be entitled to any benefit or security under this Indentures,
and the holders or registered owners of such Bonds or portions of
Bonds shall have no rights in respect thereof except to receive
payment of the redemption price thereof and accrued interest to
the redemption date and, to the extent provided in Section 3.05
of this Article, to receive Bonds for any unredeemed portions of
registered bonds.
Section 3.04. Partial Redemption. In case part but not all
of an outstanding registered Bond shall be selected for
redemption, the registered owner thereof or his attorney or legal
representative shall present and surrender such bond to the
Trustee for payment of the principal amount thereof so called for
redemption, and the County shall execute and the Trustee shall
authenticate and deliver to or upon the order of such registered
owner or his attorney or legal representative, without charge
therefor, for the unredeemed portion of the principal amount of
the registered Bond so surrendered, a registered Bond of the same
series and maturity and bearing interest at the same rate.
Section 3.05. Funds in Trust; Unclaimed Funds. All moneys
which the Trustee shall have withdrawn from the Bond Fund or
shall have received for any other source and set aside, or
deposited with the paying agents, for the purpose of paying any
of the Bonds hereby secured, either at the maturity thereof or
upon call for redemption, shall be held in trust for the
respective holders of such Bonds. But any moneys which shall be
so set aside or deposited by the Trustee and which shall remain
unclaimed by the holders of such Bonds for a period of six (6)
years after the date on which such Bonds shall have become due
and payable shall upon request in writing be paid to the Company
and, thereafter, the holders of such Bonds shall look only to the
Company for the payment thereof and then only to the extent of
the amount so received without any interest thereon, and the
County, the Trustee and the paying agents shall have no
responsibility with respect to such moneys.
ARTICLE IV.
GENERAL COVENANTS
Section 4.01. Payment of Principal, Premium, if any, and
Interest. The County covenants that it will promptly pay the
principal of, premium, if any, and interest on every Bond issued
under this Indenture at the place, on the dates and in the manner
provided herein and in said Bonds according to the true intent
and meaning thereof, but only from the revenues and receipts
specifically pledged herein for such purposes.
Section 4.02. Performance of Covenants; County. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The County covenants that it is
duly authorized under the Constitution and laws of the State of
Mississippi, including particularly and without limitation the
Act, to issue the 1994 Series Bonds authorized hereby and to
execute this Indenture, to assign and pledge the Agreement, the
amounts payable under the Agreement and to pledge the amounts
hereby pledged in the manner and to the extent herein set forth;
that all action on its part necessary for the issuance of the
1994 Series Bonds and the execution and delivery of this
Indenture has been duly and effectively taken, and that the 1994
Series Bonds in the hands of the holders and owners thereof are
and will be valid and enforceable obligations of the County
according to the terms thereof and hereof.
Section 4.03. Instruments of Further Assurance; Liens and
Encumbrances. The County covenants that it will do, execute,
acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto
and such further acts, instruments and transfers as the Trustee
may reasonably require for the better pledging and assigning unto
the Trustee all and singular the purchase price installments and
any other income and other moneys pledged hereby to the payment
of the principal of and interest and premium, if any, on the
Bonds. The County further covenants that it will not create or
suffer to be created any lien, encumbrance or charge upon its
interest in the Project or any part thereof (other than Permitted
Encumbrances (as defined in the Agreement)) or upon its interest
in the Agreement, including purchase price installments or any
other income from the Agreement, except Permitted Encumbrances,
and that, from the Construction Fund or other available moneys
derived from the Project, it will pay or cause to be discharged,
or will make adequate provision to satisfy and discharge, within
sixty (60) days after the same shall accrue, all lawful claims
and demands for labor, materials, supplies or other items which,
if unpaid, might by law become a lien upon the Project or any
part thereof or the purchase price installments or other income;
provided, however, that nothing in this Section 4.03 shall
require the County to pay or cause to be discharged, or make
provision for, any such lien, encumbrance or charge so long as
the validity thereof shall be contested in good faith and by
appropriate legal proceedings.
Section 4.04. Recordation. The Company is obligated
pursuant to Section 9.7 of the Agreement to take all actions that
at the time and from time to time may be necessary (or, in the
opinion of the Trustee, may be necessary) to perfect, preserve,
protect and secure the interests of the County and the Trustee,
or either, in and to the Project, including, without limitation,
the filing of all financing and continuation statements that may
be required under the Mississippi Uniform Commercial Code. The
County and the Trustee covenant that they will execute all
documents necessary to permit the Company to fulfill its
obligations under said Section 9.7 of the Agreement.
Section 4.05. Rights Under Agreement. The Agreement, a duly
executed counterpart of which has been filed with the Trustee,
sets forth the covenants and obligations of the County and the
Company, including provisions that subsequent to the issuance of
Bonds and prior to their payment in full or provision for payment
thereof in accordance with the provisions thereof the Agreement
may not be amended, changed, modified, altered or terminated
(other than as provided therein) without the concurring written
consent of the Trustee, and reference is hereby made to the same
for a detailed statement of said covenants and obligations of the
Company thereunder; and the County agrees that the Trustee in its
own name or in the name of the County may enforce all rights of
the County and all obligations of the Company under and pursuant
to the Agreement for and on behalf of the Bondholders, whether or
not the County is in default hereunder.
Section 4.06. Designation of Additional Paying Agents. The
County hereby covenants and agrees to cause the necessary
arrangements to be made through the Trustee and to be thereafter
continued for the designation of additional paying agents and for
providing for the payment of such of the Bonds as shall be
presented when due at the office of the Trustee, or its successor
in trust hereunder, or at the office of said additional paying
agents. If the principal office of the Trustee is not located in
the Borough of Manhattan, City and State of New York, the County
and the Trustee shall make the necessary arrangements to assure
that at all times while the Bonds are outstanding there shall be
an additional paying agent for the Bonds whose principal office
is on said island of Manhattan. All such funds held by said
additional paying agents shall be held by each of them in trust
and shall constitute a part of the trust estate and shall be
subject to the security interest created hereby.
ARTICLE V.
REVENUES AND FUNDS
Section 5.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations of the
County to make payments hereunder in respect of the principal of,
premium, if any, and interest on such Bonds. Such Bonds are not
general obligations of the County but are limited obligations
payable solely from revenues and receipts derived from the sale
of the Project and as authorized by the Act and provided herein.
The payments to be made by the Company under the Agreement
are to be paid directly to the Trustee for the account of the
County and deposited in the Bond Fund. Such payments shall be
sufficient in amount to provide for, and are pledged to secure,
the payment of the principal of, premium, if any, and interest on
the Bonds.
Section 5.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "Warren County Pollution Control Revenue Refunding
Bonds, 1994 Series, (Mississippi Power & Light Company Project)
Bond Fund" (the "Bond Fund"). Moneys deposited therein shall be
used to pay the principal of, premium, if any, and interest on
the Bonds as provided in this Indenture.
Section 5.03. Payments into the Bond Fund. There shall be
deposited into the Bond Fund any accrued interest received from
the sale of the 1994 Series Bonds, consisting of accrued interest
on the 1994 Series Bonds. In addition, there shall be deposited
into the Bond Fund, as and when received, (i) any amount
remaining in the Bond Redemption Fund directed to be paid into
the Bond Fund under Section 5.08 of this Indenture; (ii) all
purchase price payments and the interest thereon made pursuant to
the Agreement if any; and (iii) all other moneys received by the
Trustee under and pursuant to any of the provisions of the
Agreement which are required, or which are accompanied by
directions from the Company that such moneys are, to be paid into
the Bond Fund. The County hereby covenants and agrees that, so
long as any of the 1994 Series Bonds are outstanding, it will
deposit, or cause to be paid to the Trustee for deposit in the
Bond Fund for its account, sufficient sums from revenues and
receipts derived from the sale of the Project, whether or not
under and pursuant to the Agreement, promptly to meet and pay the
principal of, premium, if any, and interest on the 1994 Series
Bonds as the same become due and payable; provided, however, that
nothing herein shall be construed as requiring the County to use
any funds or revenues from any source other than receipts and
revenues derived from the sale of the Project.
Section 5.04. Use of Moneys in the Bond Fund. All interest
accruing on the 1994 Series Bonds up to the date of their
delivery will be paid from the amounts deposited in the Bond Fund
pursuant to the first sentence of Section 5.3 hereof. Except as
provided in Section 5.11 hereof, moneys in the Bond Fund shall be
used solely for the payment of the principal of, premium, if any,
and interest on the Bonds or at the direction of the Company for
purchase of Bonds for purposes of cancellation. Whenever the
amount in the Bond Fund from any source whatsoever is sufficient
to redeem all of the Bonds then outstanding and to pay interest
to accrue thereon prior to such redemption, the County and the
Trustee covenant and agree to take and cause to be taken the
necessary steps to redeem all of said Bonds on the next
succeeding redemption date for which the required redemption
notice may be given. Any moneys in the Bond Fund may be used, on
direction of the Company, to redeem a part of the Bonds
outstanding and then redeemable or, at the direction of the
Company to make purchases of the Bonds for purposes of
cancellation, so long as the Company is not in default with
respect to any payments made pursuant to Section 4.4 of the
Agreement and to the extent said moneys are in excess of the
amount required for payment of the Bonds theretofore matured or
called for redemption and interest accrued and payable in respect
of outstanding Bonds.
Section 5.05. Custody of the Bond Fund. The Bond Fund shall
be in the custody of the Trustee but in the name of the County,
and the County hereby authorizes and directs the Trustee to
withdraw sufficient funds from the Bond Fund to pay the principal
of, premium, if any, and interest on the Bonds as the same become
due and payable and to make said funds so withdrawn available to
the paying agents designated pursuant to Section 4.06 hereof at
their principal office, for the purpose of paying said principal
of, premium, if any, and interest, which authorization and
direction the Trustee hereby accepts.
Section 5.06. Bond Redemption Fund. There is hereby created
by the Company and ordered established with the Trustee a trust
fund to be designated "Warren County, Mississippi, Pollution
Control Revenue Refunding Bonds, 1994 Series (Mississippi Power &
Light Company Project) Bond Redemption Fund" (the "Bond
Redemption Fund"), which shall be used solely to pay the
principal of the Prior Bonds in accordance with the provisions of
the Agreement and of this Indenture.
Section 5.07. Payments into Bond Redemption Fund. There
shall be deposited in the Bond Redemption Fund promptly after the
issuance of the Bonds on the Closing Date (a) the balance of the
proceeds remaining after the deposits into the Bond Fund provided
for by the first sentence of Section 5.03 hereof, and (b) all
other moneys received by the Trustee under and pursuant to any of
the provisions of the Agreement which are accompanied by
directions that such moneys are to be paid into the Bond
Redemption Fund.
Section 5.08. Use of Moneys in Bond Redemption Fund. Except
as provided herein, moneys in the Bond Redemption Fund shall be
used solely for the payment of the principal of the Prior Bonds.
Such amounts in the Bond Redemption Fund shall be invested in Tax
Exempt Obligations as directed by the Company. The Trustee
shall, one day prior to the Redemption Date, transfer to the
trustee for the Prior Bonds (the "Prior Trustee") from the Bond
Redemption Fund for deposit n the Bond Fund created under Section
5.02 of the Prior Indenture the amount necessary for the payment
of the principal of the Prior Bonds called for redemption or
otherwise payable on the Redemption Date. The Prior Trustee
shall disburse such funds in accordance with the terms of the
Prior Indenture. Any amount remaining in the Bond Redemption
Fund after payment in full of the principal of the Prior Bonds
shall be transferred to the Bond Fund. Under the Agreement, the
Company is obligated to deposit with the Prior Trustee in funds
available on the Redemption Date, in accordance with the Prior
Indenture the amount necessary to pay the accrued interest and
redemption premium, if any, on the Prior Bonds.
Section 5.09. Non-presentment of Bonds. In the event any
Bond shall not be presented for payment when the principal
thereof becomes due, whether at stated maturity, upon redemption,
or otherwise, if funds sufficient to pay such Bond shall have
been made available to the Trustee for the benefit of the holder
thereof, all liability of the Issuer to the holder thereof for
the payment of such Bond shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such funds, without liability for interest
thereon, for the benefit of the holder of such Bond for a period
of two years after such due date (or, if shorter, the period
ending on the date immediately preceding the date that such funds
would escheat to the State), at which time such funds shall be
transferred upon written request to the Company which shall hold
such funds without liability for interest thereon, for the
benefit of the holder of such Bond who shall thereafter be
restricted exclusively to a claim against the Company for any
claim of whatever nature on his part with respect to said Bond.
Section 5.10. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for the
account of the Bond Fund or the Bond Redemption Fund under any
provision of this Indenture, the Agreement or the Guaranty shall
be held by the Trustee in trust, and except for moneys deposited
with or paid to the Trustee for the redemption of the Bonds,
notice of the redemption of which has been duly given, shall,
while held by the Trustee, constitute part of the trust estate
and be subject to the security interest created hereby.
Section 5.11. Repayment to the Company from Bond Fund. Any
amounts remaining in the Bond Fund after payment in full of the
Bonds and the fees and expenses of the Trustee and all other
amounts required to be paid hereunder shall belong and be paid to
the Company.
Section 5.12. Creation and Use of the Rebate Fund. There is
hereby created and established a special fund to be designated
"Warren County, Mississippi, Pollution Control Revenue Refunding
Bonds, 1994 Series (Mississippi Power & Light Company Project)
Rebate Fund" (the "Rebate Fund") which shall be held by the
Trustee, in trust, for the benefit of the Issuer to secure
payment to the United States Government of all amounts to become
due to the United States Government under the rebate requirements
set forth in Section 148(f) of the Code and to facilitate
compliance by the Issuer, the Trustee, and the Company with the
provisions of the Certificate. Capitalized terms and phrases
used in this Section and not otherwise defined in this Indenture,
shall have the meaning given to those terms in the Certificate.
The Trustee shall apply any moneys in the Rebate Fund in
accordance with written instructions from the Company. The
Company is obligated, pursuant to the Certificate, to give such
instructions to the Trustee in accordance with the Certificate.
The Rebate Fund shall not provide further security for the
Bonds.
ARTICLE VI.
INVESTMENTS
Section 6.01. Investment of Moneys. Except as otherwise
provided in this Article VI and in Section 5.04 hereof, any
moneys held as part of the Bond Fund or the Bond Redemption Fund
shall be invested and reinvested by the Trustee, subject to
applicable provisions of law, only as directed from time to time
by the Company in writing, including, without limitation, in
direct obligations of, or obligations guaranteed by or other
obligations (including repurchase agreements) fully secured by
direct obligations of, the United States of America or
obligations of the Federal National Mortgage Association, the
Federal Intermediate Credit Banks, Federal Banks for
Cooperatives, Federal Land Banks, Federal Home Loan Bank,
Government National Mortgage Association, Export-Import Bank of
the United States, United States Postal Service, Tennessee Valley
Authority or any other agency or corporation which is or may
hereafter be created by or pursuant to an Act of the Congress of
the United States as an agency or instrumentality thereof; or
direct obligations of, or obligations guaranteed by, any state of
the United States which is rated in the two highest ratings by a
recognized national rating service in Municipal Bonds; or Public
Housing Bonds, Temporary Notes, or Preliminary Loan Notes, fully
secured by contracts with the United States; or negotiable or non-
negotiable certificates of deposit, time deposits or bankers
acceptances issued by the Trustee or any bank, trust company or
national banking association which is located in the United
States of America (including branch offices of foreign banks) or
in any foreign country and which has a capital stock and surplus
aggregating at least $10,000,000; provided, however, that the
negotiable or non-negotiable certificates of deposit, time
deposits, or bankers acceptances of any bank, trust company or
national association may not exceed $100,000 if the aggregate
capital stock and surplus is less than $25,000,000; or commercial
paper rated by Moody's National Credit Office P-1 and S&P's A-1.
Such certificates of deposit, time deposits or bankers
acceptances may be purchased directly or indirectly from such a
bank, trust company or national banking association including the
Trustee; including in each case any hereafter issued obligations
or certificates. Each investment shall have a maturity not
exceeding the time within which the funds invested therein are
required to be available. The Trustee may, as directed in
writing by the Company, and to the extent required for payments
from the Bond Redemption Fund or Bond Fund shall, sell any such
obligation at any time, and the proceeds of such sale, and of all
payments at maturity and upon redemption of such investments,
shall be held in the Bond Redemption Fund or Bond Fund in which
such obligations were held. The Trustee shall not be held liable
for any loss incurred by reason of such sale. Such investments
shall be made pursuant to written direction of the Company by its
authorized officer (being any Vice President, the Treasurer, any
Assistant Treasurer or the Company Representative) to the
Trustee. The Company has covenanted in the Certificate that it
will cause all investments in the Bond Redemption Fund to be
invested solely in Tax Exempt Obligations. Any such investments
shall be held by or under the control of the Trustee and shall be
deemed at all times a part of the Bond Redemption Fund or Bond
Fund for which they were made. The interest accruing on, any
profit realized from, and any loss resulting from, investment of
moneys shall be credited or charged, as the case may be, to the
Bond Redemption Fund or Bond Fund in which the investment was
made. The Trustee covenants to follow the investment directions
of the Company and shall not be held liable for any loss
resulting from such investment. The Issuer further covenants and
represents to and for the benefit of the purchasers of the Bonds
that no use will be made of the proceeds from the issue and sale
of the Bonds which, on the basis of the facts, estimates and
circumstances now known and reasonably expected to be in
existence on the date of issue of the Bonds, would cause the
Bonds to be classified as of the date of issue as arbitrage bonds
within the meaning of Section 148 of the Code. Pursuant to such
covenant, the Issuer obligates itself to comply throughout the
term of the Bonds with the requirements of Section 148 of the
Code.
ARTICLE VII.
DISCHARGE OF INDENTURE
Section 7.01. Discharge of Indenture. When all the Bonds
shall have been paid, or deemed paid as provided in this Article,
and if the Company shall not then be in default under any of its
other obligations under the terms of this Indenture, and if the
Company shall have caused to be paid to the Trustee all other
sums of money due or to become due according to the provisions
hereof (or shall have made arrangements satisfactory to the
Trustee for such payment), then this Indenture and the lien
created hereby shall be discharged and satisfied, and thereupon
the Trustee shall execute and deliver to the Issuer such
instruments in writing as shall be requisite to cancel and
discharge the Agreement and to evidence the discharge and
cancellation of this Indenture; provided, however, that the
Trustee shall remain obligated to hold in trust any amounts then
remaining in the Bond Fund or the Bond Redemption Fund and to pay
to the holders of the Bonds any amounts held by the Trustee for
the payment of the principal of, premium, if any, and interest on
the Bonds according to the provisions of Section 5.04 hereof and
to pay any remaining amounts to the Company as provided in
Article V hereof.
Any Bond shall be deemed to be paid within the meaning of
this Article when delivered to the Trustee for cancellation or
when payment of the principal of, and premium, if any, on such
Bond, plus interest thereon to the due date thereof (whether at
maturity, or upon redemption, or otherwise) either (a) shall have
been made or caused to be made in accordance with the terms
thereof, or (b) shall have been provided by depositing with the
Trustee, for such payment, (i) moneys sufficient to make such
payment or (ii) moneys and/or Governmental Obligations maturing
as to principal and interest in such amounts and at such times as
will insure the availability of sufficient moneys to make such
payment, provided that all necessary and proper fees,
compensation and expenses of the Trustee pertaining to the Bonds
with respect to which such deposit is made shall have been paid
or the payment thereof provided for to the satisfaction of the
Trustee. At such times as a Bond shall be deemed to be paid
hereunder, as aforesaid, it shall no longer be secured by or
entitled to the benefits of this Indenture, except for the
purposes of any such payment from such moneys or Governmental
Obligations.
Notwithstanding the foregoing, no deposit under clause (b)
of the immediately preceding paragraph shall be deemed a payment
of such Bonds as aforesaid until (1) proper notice of redemption
of such Bonds shall have been previously given in accordance with
Article III hereof, or in the event said Bonds are not by their
terms subject to redemption within the next succeeding sixty
days, until the Company shall have given the Trustee on behalf of
the Issuer, in form satisfactory to the Trustee, irrevocable
instructions to notify, as soon as practicable, the holders of
the Bonds in accordance with Article III hereof that the deposit
required by (b) above has been made with the Trustee and that
said Bonds are deemed to have been paid in accordance with this
Article and stating such maturity or redemption date upon which
moneys are to be available for the payment of the principal of
and premium, if any, on said Bonds, plus interest, or (2) the
stated maturity of such Bonds. Any moneys so deposited with the
Trustee as provided in this Article VII only at the written
direction or telephonic direction confirmed in writing of the
Company may also be invested and reinvested in Governmental
Obligations, maturing in the amounts and times as hereinbefore
set forth, and all income from all Governmental Obligations in
the hands of the Trustee pursuant to this Article which is not
required for the payment of the Bonds and interest and premium
thereon with respect to which such moneys shall have been so
deposited, shall be deposited in the Bond Fund as and when
realized and collected for use and application as are other
moneys deposited in that Fund.
ARTICLE VIII.
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Section 8.01. Defaults; Events of Default. If any of the
following events occur subject to the provisions of Section 8.13
hereof, it is hereby defined as and declared to be and to
constitute an "event of default":
(a) default in the payment when due of any interest on
any Bond; or
(b) default in the payment when due of the principal
of, or premium, if any, on any Bond, whether at the stated
maturity thereof, or upon proceedings for redemption
thereof, or upon the maturity thereof by declaration; or
(c) default in the performance or observance of any
other of the covenants, agreements or conditions on the part
of the County in this Indenture or in the Bonds, continuing
ninety days after notice thereof from the Trustee or the
holders of twenty-five percent in aggregate principal amount
of the outstanding Bonds; or
(d) the occurrence of an "event of default" under
Section 7.1 of the Agreement.
Section 8.02. Acceleration. Upon the occurrence of an event
of default the Trustee may, and upon the written request of the
holders of not less than twenty-five percent in aggregate
principal amount of Bonds then outstanding shall, by notice in
writing delivered to the County and the Company, declare the
principal of all Bonds then outstanding and the interest accrued
thereon immediately due and payable; and such principal and
interest shall thereupon become and be immediately due and
payable.
If, after the principal of the Bonds has been so declared to
be due and payable, all arrears of interest and interest on
overdue installments of interest (if lawful) at the rate per
annum borne by the Bonds and the principal and premium, if any,
on all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable
under this Indenture , except the principal of, and interest on,
the Bonds which by such declaration shall have become due and
payable upon the Bonds are paid by the County, and the County
also performs all other things in respect to which it may have
been in default hereunder and pays the reasonable charges of the
Trustee, the bondholders and any trustee appointed under law,
including the Trustee's reasonable attorney's fees, then, and in
every such case, the Trustee shall annul such declaration and its
consequences, and such annulment shall be binding upon all
holders of Bonds issued hereunder; but no such annulment shall
extend to or affect any subsequent default or impair any right or
remedy consequent thereon. The Trustee shall forward a copy of
such annulment notice pursuant to this paragraph to the County.
Section 8.03. Other Remedies. If any event default occurs
and is continuing, except as otherwise provided in Section 9.12
hereof, the Trustee, before or after declaring the principal of
the Bonds immediately due and payable, may enforce each and every
right granted to it under the Agreement and any supplements or
amendments thereto for the benefit of the bondholders. In
exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
bondholders.
Section 8.04. Legal Proceedings by Trustee. If any event of
default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the holders of
twenty-five percent in principal amount of all Bonds then
outstanding and receipt of indemnity to its satisfaction shall,
in its own name:
(a) by mandamus, or other suit, action or proceeding at
law or in equity, enforce all rights of the bondholders,
including the right to require the County to enforce any
rights under the Agreement and to require the County to
carry out any other provisions of this Indenture for the
benefit of the bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the County to
account as if it were the trustee of an express trust for
the bondholders; and
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the bondholders.
No remedy conferred upon or reserved to the Trustee or to
the bondholders by the terms of this Indenture is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or event of default shall impair any such right
or power or shall be construed to be a waiver of any such default
or event of default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or event of default hereunder,
whether by the Trustee or by the bondholders, shall extend to or
shall affect any subsequent default or event of default or shall
impair any rights or remedies consequent thereon.
Section 8.05. Right of Bondholders to Direct Proceedings.
Anything in this indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds then
outstanding shall have the right, at any time, by an instrument
or instruments in writing executed and delivered to the Trustee,
to direct the method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder, provided, that such
direction shall not be otherwise than in accordance with the
provisions of law or of this Indenture.
Section 8.06. Appointment of Receivers. Upon the occurrence
of an event of default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the
Trustee and of the bondholders under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the trust estate, with such powers as
the court making such appointment shall confer.
Section 8.07. Waiver. Upon the occurrence of an event of
default, to the extent that such rights may then lawfully be
waived, neither the County, nor the State of Mississippi, nor any
political subdivision thereof, nor anyone claiming through or
under any of them, shall set up, claim, or seek to take advantage
of any appraisement, valuation, stay, extension or redemption
laws now or hereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the County, for itself and all
who may claim through or under it, hereby waives, to the extent
that it lawfully may do so, the benefit of all such laws.
Section 8.08. Application of Moneys. All moneys received by
the Trustee pursuant to any right given or action taken under the
provisions of this Article VIII shall, after payment of the costs
and expenses of the proceedings resulting in the collection of
such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, be deposited in the Bond Fund
and all moneys in the Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all such
moneys shall be applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons entitled
thereto of the unpaid principal of and premium, if any,
on any of the Bonds which shall have become due (other
than Bonds matured or called for redemption for the
payment of which moneys are held pursuant to the
provisions of this Indenture), in the order of their
due dates, with interest on such Bonds from the
respective dates upon which they became due and, if the
amount available shall not be sufficient to pay in full
Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the
amount of principal due on such date, to the persons
entitled thereto without any discrimination or
privilege.
(b) If the principal of all the Bonds shall have become
due or shall have been declared due and payable, all such
moneys shall be applied to the payment of the principal and
interest then due upon the Bonds, without preference or
priority of principal over interest or of interest over
principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for
principal and interest, to the persons entitled thereto
without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the
provisions of this Article VIII then, subject to the
provisions of subsection (b) of this Section 8.08 in the
event that the principal of all the Bonds shall later become
due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of subsection (a)
of this Section 8.08.
Whenever moneys are to be applied pursuant to the provisions
of this Section 8.08, such moneys shall be applied at such times,
and from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest payment
date unless it shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the
amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the
fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond or until such Bond,
shall be presented to the Trustee for appropriate endorsement or
for cancellation if fully paid.
Whenever all principal of, premium, if any, and interest on
all Bonds have been paid under the provisions of this Section
8.08 and all expenses and charges of the Trustee have been paid,
any balance remaining in the Bond Fund shall be paid to the
Company as provided in Section 5.11 hereof.
Section 8.09. Remedies Vested in the Trustee. All rights of
action (including the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any holders of the Bonds; and
any recovery of judgment shall be for the equal and ratable
benefit of the holders of the outstanding Bonds.
Section 8.10. Rights and Remedies of Bondholders. No holder
of any Bond shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless
also a default has occurred of which the Trustee has been
notified as provided in Section 9.01(h) hereof, or of which by
said subsection it is deemed to have notice, nor unless also such
default shall have become an event of default and the holders of
twenty-five percent in aggregate principal amount of Bonds then
outstanding shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in their own name or names, nor unless
also they have offered to the Trustee indemnity as provided in
Section 9.01(l) hereof, nor unless the Trustee shall thereafter
fail or refuse to exercise the powers hereinbefore granted, or to
institute such action, suit or proceeding in its own name; and
such notification, request and offer of indemnity are hereby
declared in every case at the option of the Trustee to be
conditions precedent to the execution of the powers and trusts of
this Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a
receiver or for any other remedy hereunder; it being understood
and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by its, his or their action
or to enforce any right hereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and
for the equal and ratable benefit of the holders of all Bonds
then outstanding. Nothing in this Indenture contained shall,
however, affect or impair the right of any bondholder to enforce
the payment of the principal of, premium, if any, and interest on
any Bond at and after the maturity thereof, or the obligation of
the County to pay the principal of, premium, if any, and interest
on each of the Bonds issued hereunder to the respective holders
thereof at the time, place, from the source and in the manner in
the Bonds expressed.
Section 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, or otherwise, and
such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely, then and in
every such case the County and the Trustee shall be restored to
their former positions and rights hereunder; and all rights,
remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
Section 8.12. Waivers of Events of Default. The Trustee may
in its discretion waive any event of default hereunder and its
consequences and rescind any declaration of maturity of
principal, and shall do so upon the written request of the
holders of (a) not less than two-thirds in principal amount of
all the Bonds then outstanding in respect of which default in the
payment of principal and/or interest exists, or (b) more than one-
half in principal amount of all Bonds then outstanding in the
case of any other default; provided, however, that there shall
not be waived (i) any event of default in the payment of the
principal of any outstanding Bonds at the date of maturity
specified therein or (ii) any default in the payment when due of
the interest on any such Bonds unless prior to such waiver or
rescission, all arrears of interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds in respect of
which such default shall have occurred on overdue installments of
interest or all arrears of payments of principal when due, as the
case may be, and all expenses of the Trustee in connection with
such default shall have been paid or provided for, and in cases
of any such waiver or rescission, or in case any proceeding taken
by the Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and in
every such case the County, the Trustee and the bondholders shall
be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to
any subsequent or other default, or impair any right consequent
thereon.
Section 8.13. Notice of Defaults under Section 8.01(c);
Opportunity of County and Company to Cure Such Defaults.
Anything herein to the contrary notwithstanding, no default under
Section 8.01(c) hereof shall constitute an event of default until
actual notice of such default by registered or certified mail
shall be given to the County and the Company by the Trustee or by
the holders of not less than twenty-five percent in aggregate
principal amount of all Bonds outstanding and the County and the
Company shall have had ninety days after receipt of such notice
to correct said default or cause said default to be corrected,
and shall not have corrected said default or caused said default
to be corrected within the applicable period; provided, however,
if said default be such that it cannot be corrected within the
applicable period, it shall not constitute an event of default if
corrective action is instituted by the County or the Company
within the applicable period and diligently pursued until the
default is corrected.
With regard to any alleged default concerning which notice
is given to the County and the Company under the provisions of
this Section 8.13, the County hereby grants the Company full
authority for the account of the County to perform any covenant
or obligation alleged in said notice to constitute a default, in
the name and stead of the County with full power to do any and
all things and acts to the same extent that the County could do
and perform any such things and acts and with power of
substitution.
In the event that the Trustee fails to receive any purchase
price installment when due under the Agreement, the Trustee shall
immediately give notice by telegram or certified mail to the
Company specifying such failure.
ARTICLE IX.
THE TRUSTEE
Section 9.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Trustee, prior to the occurrence of an event of
default and after the curing of all events of default which
may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture. In case an event of default has occurred (which
has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) The Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be
answerable for the conduct of the same in accordance with
the standard specified above, and shall be entitled to
advice of counsel concerning all matters of trusts hereof
and the duties hereunder, and may in all cases pay such
reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney (who may be the
attorney or attorneys for the County or the Company),
approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in
reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for
the recording or re-recording, filing or re-filing of this
Indenture, or any other instrument required by this
Indenture to secure the Bonds, or for insuring the Project
or collecting any insurance moneys, or for the validity of
the execution by the County of this Indenture or of any
supplements hereto or instruments of further assurance, or
for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby, or for the value
or title of the Project or otherwise as to the maintenance
of the security hereof.
(d) The Trustee shall not be accountable for the use of
any Bonds authenticated or delivered hereunder. The Trustee
may become the owner of Bonds secured hereby with the same
rights which it would have if not the Trustee. To the
extent permitted by law, the Trustee may also receive
tenders and purchase in good faith Bonds from itself,
including any department, affiliate or subsidiary, with like
effect as if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it
to be genuine and correct and to have been signed or sent by
the proper person or persons. Any action taken by the
Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making
such request or giving such authority or consent is the
owner of any Bond, shall be conclusive and binding upon all
future owners of the same Bond and upon owners of Bonds
issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact or
as to the sufficiency or validity of any instrument, paper
or proceeding, the Trustee shall be entitled to rely upon a
certificate signed by the County Representative or the
Company Representative as sufficient evidence of the facts
therein contained; and, prior to the occurrence of a default
of which the Trustee has been notified as provided in
subsection (h) of this Section 9.01, or of which by said
subsection it is deemed to have notice, the Trustee shall
also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same. The Trustee
may accept a certificate of the Clerk of the Board of
Supervisors of the county under its seal to the effect that
a resolution in the form therein set forth has been adopted
by said County as conclusive evidence that such resolution
has been duly adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty, and it shall not be answerable for other than its
negligence or willful default.
(h) The Trustee shall not be required to take notice or
be deemed to have notice of any default hereunder except
failure by the County to cause to be made any of the
payments to the Trustee required to be made by Article IV
hereof or the failure of the County or the Company to file
with the Trustee any document required by this Indenture or
the Agreement to be so filed subsequent to the issuance of
the bonds, unless the Trustee shall be specifically notified
in writing of such default by the County or by the holders
of at least twenty-five percent in aggregate principal
amount of Bonds then outstanding; and all notices or other
instruments required by this Indenture to be delivered to
the Trustee, must, in order to be effective, be delivered at
the principal office of the Trustee, and in the absence of
such notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and its
duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully
to inspect any and all of the Project, including all books,
papers and records of the County pertaining to the Project
and the Bonds, and to take such memoranda from and in regard
thereto as may be desired.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, which the Trustee in its discretion may deem
desirable for the purpose of establishing the right of the
County to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(l) Before taking the action referred to in Sections
8.03, 8.04 or 8.10 hereunder, the Trustee may require that a
satisfactory indemnity bond be furnished for the
reimbursement of all expenses to which it may be put and to
protect it against all liability, except liability which is
adjudicated to have resulted from its negligence or willful
default by reason of any action so taken.
(m) All moneys received by the Trustee or any paying
agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they
were received but need not be segregated from other funds
except to the extent required by law. Neither the Trustee
nor any paying agent shall be under any liability for
interest on any moneys received hereunder except such as may
be mutually agreed upon.
Section 9.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement for
reasonable fees for its services rendered hereunder and all
advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an event of default, but only upon an event
of default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of, premium, if
any, and interest on any Bond upon the trust estate for the
foregoing fees, charges and expenses incurred by it respectively.
Section 9.03. Notice to Bondholders if Default Occurs. If a
default occurs of which the Trustee is by Section 9.01(h) hereof
required to take notice or if notice of default be given as in
Section 9.01(h) provided, then the Trustee shall promptly give
written notice thereof by registered or certified mail to each
registered owner of Bonds then outstanding and to each holder of
Bonds then outstanding shown by the list of bondholders required
by the terms of Section 4.05 hereof to be kept at the office of
the Trustee.
Section 9.04. Intervention by Trustee. In any judicial
proceeding to which the County is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of the owners of the Bonds, the Trustee may
intervene on behalf of bondholders and shall do so if requested
in writing by the owners of at least twenty-five percent of the
aggregate principal amount of Bonds then outstanding. The rights
and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
Section 9.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party, shall be and become successor
Trustee hereunder and vested with all of the title to the trust
estate and all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without
the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving thirty days' written notice to the County and
by registered or certified mail to each registered owner of Bonds
then outstanding, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a
successor Trustee pursuant to Section 9.08 hereof. Such notice
to the County may be served personally or sent by registered
mail.
Section 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent instruments
in writing delivered to the Trustee and to the County, and signed
by the owners of a majority in aggregate principal amount of
Bonds then outstanding.
Section 9.08. Appointment of Successor Trustee by the
Bondholders; Temporary Trustee. In case the Trustee hereunder
shall resign or be removed, or be dissolved, or shall be in
course of dissolution or liquidation, or otherwise become
incapable of acting hereunder, or in case it shall be taken under
the control of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
County at the direction of the Company. The County shall publish
notice of such appointment once in each of two consecutive
calendar weeks in a newspaper or financial journal of general
circulation among dealers in municipal securities in the Borough
of Manhattan, City and State of New York. If the County fails to
make such appointment promptly, a successor may be appointed by
the owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 9.08 shall be a trust
company or bank in good standing having a reported capital and
surplus of not less than $6,000,000, if there be such an
institution willing, qualified and able to accept the trusts upon
reasonable and customary terms.
Section 9.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its predecessor and also to the County an
instrument in writing accepting such appointment hereunder, and
thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its
predecessors; but such predecessor shall, nevertheless, on the
written request of the County, or of its successor, execute and
deliver an instrument transferring to such successor Trustee all
the estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee hereunder
to its or his successor. Should any instrument in writing from
the County be required by any successor Trustee for more fully
and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the County.
The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this
Article IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the costs thereof.
Section 9.10. Right of Trustee to Pay Taxes and Other
Charges. Prior to the Completion Date (as defined in the
Agreement), in case any tax, assessment or governmental or other
charge upon, or insurance premium with respect to, any part of
the Project is not paid as required herein or in the Agreement,
the Trustee may pay such tax, assessment, governmental or other
charge, or insurance premium, without prejudice, however, to any
rights of the Trustee or the bondholders hereunder arising in
consequence of such failure; and any amount at any time so paid
under this Section 9.10, shall become so much additional
indebtedness secured by this Indenture, and the same shall be
given a preference in payment over any of the Bonds, and shall be
paid out of the proceeds of revenues collected in respect of the
sale of the Project, if not otherwise caused to be paid; but the
Trustee shall not be under any obligation to make any such
payments unless it shall have been first requested to do so by
the holders of at least twenty-five percent of the aggregate
principal amount of Bonds then outstanding and shall have been
first provided with adequate funds for the purpose of such
payment.
Section 9.11. Successor Trustee as Bond Registrar, Custodian
of Construction Fund and Bond Fund and Paying Agent. In the
event of a change of Trustee, the Trustee which has resigned or
been removed shall cease to be Bond Registrar and custodian of
the Construction Fund and the Bond Fund and paying agent for
principal and interest of the Bonds and the successor Trustee
shall become such Bond Registrar, custodian and paying agent.
Section 9.12. Trustee and County Required to Accept
Directions and Actions of Company. Whenever after a reasonable
request by the Company the County shall fail, refuse or neglect
to give any direction to the Trustee or to require the Trustee to
take any action which the County is required to have the Trustee
take pursuant to the provisions of the Agreement or the
Indenture, the Company as agent of the County may give any such
direction to the Trustee or require the Trustee to take any such
action, and the Trustee is hereby irrevocably empowered and
directed to accept such direction from the Company as sufficient
for all purposes of the Indenture. The Company shall have the
right as agent of the County to cause the Trustee to comply with
any of the Trustee's obligations under the Indenture to the same
extent that the County is empowered so to do.
Certain actions or failures to act by the County under the
Indenture may create or result in an event of default under the
Indenture and the Company, as agent of the County, may, to the
extent permitted by law, perform any and all acts or take such
action as may be necessary for and on behalf of the County to
prevent or correct said event of default and the Trustee shall
take or accept such performance by the Company as performance by
the County in such event.
The County hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do all
things and perform all acts provided, and to the extent so
provided, by this Section 9.12.
ARTICLE X.
INDENTURES SUPPLEMENTAL HERETO
Section 10.01. Supplemental Indentures Not Requiring Consent
of Bondholders. The County and the Trustee may, without the
consent of, or notice to, any of the bondholders, enter into an
indenture or indentures supplemental to this Indenture as shall
not be inconsistent with the terms and provisions hereof for any
one or more of the following purposes:
(a) to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such manner
as shall not in the opinion of the Trustee impair the security
hereof or adversely affect the bondholders;
(b) to grant to or confer upon the Trustee for the benefit
of the bondholders any additional rights, remedies, powers or
authorities that may lawfully be granted to or conferred upon the
bondholders or the Trustee;
(c) to add additional covenants of the County, or to
surrender any right or power herein conferred upon the County;
(d) to subject to this Indenture additional revenues,
properties or collateral; and
(e) to modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939 or any similar federal statute hereafter in effect or to
permit the qualification of the Bonds for sale under the
securities laws of any of the states of the United States, and,
if they so determine, to add to this Indenture or any indenture
supplemental hereto such other terms, conditions and provisions
as may be permitted by said Trust Indenture Act of 1939 or
similar federal statute.
Section 10.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by
Section 10.01 hereof and subject to the terms and provisions
contained in this Section 10.02, and not otherwise, the holders
of not less than two-thirds in aggregate principal amount of the
Bonds then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the Trustee for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any indenture
supplemental hereto; provided, however, that nothing in this
Section 10.02 contained shall permit, or be construed as
permitting (i) an extension of the maturity or mandatory sinking
fund redemption date of the principal of or the interest on any
Bond issued hereunder, or (ii) a reduction in the principal
amount of, or redemption premium on, any Bond or Bonds or the
rate or rates of interest thereon, or (iii) a reduction in the
aggregate principal amount of the Bonds required for consent to
such supplemental indenture.
If at any time the County shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section 10.02, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to be published
as shall be requested by the County and in any event one time in
a newspaper or financial journal of general circulation among
dealers in municipal securities in the Borough of Manhattan, City
and State of New York. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal office of the
Trustee for inspection by all bondholders. If, within sixty days
or such longer period as shall be prescribed by the County
following the final publication of such notice, the holders of
not less than two-thirds in aggregate principal amount of the
Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained herein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the County from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture as in this
Section 10.02 permitted and provided, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and
without the necessity for notation on the outstanding bonds.
If, because of the temporary or permanent suspension of the
publication or general circulation of any newspaper or for any
other reason, it is impossible or impractical to publish any
notice required in this Section 10.02, then such publication in
lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of notice.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article X which affects the
rights of the Company shall not become effective unless and until
the Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen days prior to the
publication of notice of the proposed execution of such
supplemental indenture as provided in this Section 10.02. The
Company shall be deemed to have consented to the execution and
delivery of any such supplemental indenture if the Trustee does
not receive a letter of protest or objection thereto signed by or
on behalf of the Company on or before 4:30 P.M., local time, on
the fifteenth day after the Company's receipt of said notice and
a copy of the proposed supplemental indenture.
Section 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel. The Trustee is authorized to join with the
County in the execution and delivery of any supplemental
indenture permitted by this Article X and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such supplemental indenture is so
permitted and has been duly authorized by the County and that all
things necessary to make it a valid and binding supplemental
indenture have been done.
ARTICLE XI.
AMENDMENT OF AGREEMENT
Section 11.01. Amendments, etc., to Agreement Not Requiring
Consent of Bondholders. The County and the Trustee shall,
without the consent of or notice to the bondholders, consent to
any amendment, change or modification of the Agreement as may be
(i) required by the provisions of the Agreement or this
Indenture, (ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) in connection with the Project so as to
more precisely identify the same or substitute or add additional
facilities acquired in accordance with the provisions of the
Agreement, or (iv) in connection with any other change therein
which, in the judgment of the Trustee, is not to the prejudice of
the Trustee or the holders of the Bonds.
Copies of any amendment, change or modification to the
Agreement shall be filed with the Mississippi Department of
Economic and Community Development or such successor state agency
as shall have jurisdiction over the issuance of municipal
industrial pollution control revenue bonds in the State of
Mississippi, if such a state agency exists.
Section 11.02. Amendments, etc., to Agreement Requiring
Consent of Bondholders. Except for the amendments, changes or
modifications as provided in Section 11.01 hereof, neither the
County nor the Trustee shall consent to any other amendment,
change or modification of the Agreement without publication of
notice and the written approval or consent of the holders of not
less than two-thirds in aggregate principal amount of the Bonds
at the time outstanding given and procured as in this Section
11.02 provided. If at any time the County and the Company shall
request the consent of the Trustee to any such proposed
amendment, change or modification of the Agreement, the Trustee
shall, upon being satisfactorily indemnified with respect to
expenses, cause notice of such proposed amendment, change or
modification to be published in the same manner as provided by
Section 10.02 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file with the Trustee
for inspection by all bondholders. Any amendments, changes or
modifications under this Section 11.02 shall be approved in
writing by the Mississippi Agricultural and Industrial Board or
such successor state agency as shall have jurisdiction over the
issuance of municipal industrial pollution control revenue bonds
in the State of Mississippi, if such a state agency exists.
Section 11.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to
join with the County in the execution and delivery of any
amendment permitted by this Article XI and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such amendment is so permitted and
has been duly authorized by the County and that all things
necessary to make it a valid and binding agreement have been
done.
ARTICLE XII.
MISCELLANEOUS
Section 12.01. Consents, etc., of Bondholders. Any consent,
request, direction, approval, objection or other instrument
required by this Indenture to be signed and executed by the
bondholders may be in any number of concurrent writings of
similar tenor and may be signed or executed by such bondholders
in person or by agent appointed in writing. Proof of the
execution of any such consent, request, direction, approval,
objection or other instrument or of the writing appointing any
such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the purposes of
this Indenture, and shall be conclusive in favor of the Trustee
with regard to any action taken by it under such request or other
instrument, namely:
(a) The fact and date of the execution by any person of
any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such
execution.
(b) The fact of the holding by any person of Bonds
transferable by delivery and the amounts and numbers of such
Bonds, and the date of the holdings of the same, may be
proved by a certificate executed by any trust company, bank
or bankers, wherever situated, stating that at the date
thereof, the party named therein did exhibit to an officer
of such trust company or bank or to such banker, as the
property of such party, the Bonds therein mentioned if such
certificate shall be deemed by the Trustee to be
satisfactory. The Trustee may, in its discretion, require
evidence that such Bonds have been deposited with a bank,
bankers or trust company, before taking any action based on
such ownership. In lieu of the foregoing the Trustee may
accept other proofs of the foregoing as it shall deem
appropriate.
For all purposes of this Indenture and of the proceedings
for the enforcement hereof, such person shall be deemed to
continue to be the holder of such Bond until the Trustee shall
have received notice in writing to the contrary.
Section 12.02. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds, is
intended or shall be construed to give to any person or company
other than the Company, the parties hereto, and the holders of
the Bonds, any legal or equitable right, remedy or claim under or
in respect of this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof are intended to be
and are for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein provided.
Section 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
Section 12.04. Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered
or certified mail, postage prepaid, or sent by telegram,
addressed as follows: If to the County, at Vicksburg,
Mississippi 39180; if to the Trustee, at Post Office Box 1200,
Jackson, Mississippi 39205, Attention Trust Division; and if to
the Company at Post Office Box 1640, Jackson, Mississippi 39205,
Attention: Secretary. A duplicate copy of each notice required
to be given hereunder by either the County or the Trustee shall
also be given to the Company, and a duplicate copy of each notice
required to be given hereunder by the Trustee to either the
County or the Company shall also be given to the other. The
County, 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 12.05. Trustee as Paying Agent and Bond Registrar.
The Trustee is hereby designated and agrees to act as a paying
agent and as Bond Registrar for and in respect to the Bonds.
Section 12.06. Payments Due on Sundays and Holidays. In any
case where the date of maturity of interest on or principal of
Bonds or the date fixed for redemption of any Bonds shall be in
the city of payment a Sunday or a legal holiday or a day on which
banking institutions are authorized by law to close, then payment
of interest or principal (and premium, if any) need not be made
on such date but may be made on the next succeeding business day
with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest on such payment
shall accrue for the period after such date.
Section 12.07. Counterparts. This 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 12.08. Applicable Provisions of Law. This Indenture
shall be governed by and construed in accordance with the laws of
the State of Mississippi.
Section 12.09. Captions. The captions or headings in this
Indenture are for convenience only and in noway define, limit or
describe the scope or intent of any provisions or Sections of
this Indenture.
Section 12.10. No Liability of County. No breach or
violation of any covenant, agreement or undertaking contained in
this Indenture shall impose any pecuniary liability upon the
County or any charge upon its general credit or against its
taxing powers, but the County shall nonetheless be obligated with
respect to, and liable to the extent of, revenues and receipts
specifically pledged herein.
<PAGE>
IN WITNESS WHEREOF, WARREN COUNTY, MISSISSIPPI, has caused this
Indenture to be executed by the President of its Board of
Supervisors, and its seal to be hereunto affixed, attested by the
Clerk of said Board, and Deposit Guaranty National Bank, as
Trustee, has caused this Indenture to be executed and its
corporate seal to be hereunto affixed and attested, all by its
duly authorized officers, all as of the date first above written.
WARREN COUNTY, MISSISSIPPI
By:
President of the Board of
Supervisors
Attest:
_____________________________
Clerk of the Board of
Supervisors
DEPOSIT GUARANTY NATIONAL BANK,
TRUSTEE
By:
Senior Vice President and
Trust Officer
Attest:
_____________________________
Trust Officer
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF WARREN
Personally appeared before me, the undersigned authority in
and for the jurisdiction aforesaid, the within named Richard
George and Oren D. Bailess, who acknowledged to me that they are
President and Clerk, respectively, of the Board of Supervisors of
Warren County, Mississippi, and that for and on behalf of Warren
County, Mississippi, and as its act and deed, they signed, sealed
and delivered the above and foregoing instrument on the day and
in the year therein mentioned, they being first duly authorized
so to do.
Given under my hand and official seal on this ___ day of
_____________, 1994.
Notary Public
STATE OF MISSISSIPPI SS.:
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the jurisdiction aforesaid, the within named
_________________ and ___________________, who are the
_________________ and ___________________, respectively, of
Deposit Guaranty National Bank, a ______________________, and
that for and on behalf of said bank, and as its act and deed,
they signed, sealed and delivered the above and foregoing
instrument on the day and in the year therein mentioned, they
being first duly authorized so to do.
Given under my hand and official seal on this ____ day of
_____________, 1994.
Notary Public
Exhibit B-6
WARREN COUNTY, MISSISSIPPI
AND
MISSISSIPPI POWER & LIGHT COMPANY
__________________
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of ___________, 1994
__________________
Pollution Control Revenue Refunding Bonds, 1994 Series
(Mississippi Power & Light Company Project)
<PAGE>
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Installment Sale Agreement.)
Page
PARTIES
PREAMBLES
ARTICLE I
DEFINITIONS
ARTICLE II
Representations
SECTION 2.1. Representations by the County
SECTION 2.2. Representations by the Company
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
SECTION 3.1. Construction and Equipping of the
Project; Issuance of Bonds;
Redemption of Prior Bonds
SECTION 3.2. Agreement to Issue Bonds and
Additional Bonds; Application of
Bond Proceeds
SECTION 3.3. Agreement to Redeem Bonds
SECTION 3.4. Disbursement from the Construction Fund
SECTION 3.5. Special Arbitrage Covenants
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement
SECTION 4.2. Sale of the Project Confirmed
SECTION 4.3. Use of the Project
SECTION 4.4. Purchase Price and Other Amounts
Payable
SECTION 4.5. Payments Assigned
SECTION 4.6. Indemnity Against Claims
SECTION 4.7. Maintenance of Project by Company
SECTION 4.8. Insurance Required
SECTION 4.9. Obligation of the Company Unconditional
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability
by the County
SECTION 5.2. Inspection of the Project
SECTION 5.3. Company to Maintain its Corporate
Existence; Conditions Under Which
Exceptions Permitted
SECTION 5.4. Annual Statement
SECTION 5.5. Further Assurances and Corrective
Instruments
SECTION 5.6. County Representative
SECTION 5.7. Company Representative
SECTION 5.8. Non-Arbitage Covenant
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease
SECTION 6.2. Redemption of Bonds
SECTION 6.3. Assignment and Pledge of Rights under the
Agreement
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined
SECTION 7.2. Remedies of Default
SECTION 7.3. No Remedy Exclusive
SECTION 7.4. Agreement to Pay Attorneys' Fees and
Expenses
SECTION 7.5. No Additional Waiver Implied by One
Waiver
SECTION 7.6. Remedial Rights Assigned to Trustee
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options
SECTION 8.2. Notice of Prepayment
SECTION 8.3. Relative Position of this Article and
Indenture
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices
SECTION 9.2. Binding Effect
SECTION 9.3. Severability
SECTION 9.4. Amounts Remaining in the Bond Fund
SECTION 9.5. Amendments, Changes and Modifications
SECTION 9.6. Execution in Counterparts
SECTION 9.7. Recording and Filing
SECTION 9.8. Applicable Law
SECTION 9.9. No Charge Against County's Credit
SECTION 9.10.Captions
Signatures and Seals
Exhibit A
Acknowledgments
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
___________, 1994, by and between Warren County, a public body
corporate and politic and a political subdivision of the State of
Mississippi (the "County"), and Mississippi Power & Light Company
(the "Company"), a corporation organized and existing under the
Laws of the State of Mississippi.
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
constitution and the laws of the State of Mississippi, especially
Sections 49-17-101 through 49-17-123, Mississippi Code of 1972,
as amended (hereinafter called the "Pollution Control Act"), to
acquire, purchase, construct, enlarge, expand and improve
facilities for eliminating, mitigating, and/or preventing air and
water pollution, to issue revenue bonds to defray the cost of
such facilities, and to execute an agreement with an industry (as
defined in the Pollution Control Act) for the sale of such
facilities to such industry; and
WHEREAS, the Company is an industry as defined in the
Pollution Control Act; and
WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the County has heretofore on
October 3, 1974, issued $8,575,000 principal amount of its
Pollution Control Revenue Bonds, Series A (Mississippi Power &
Light Company Project) (the "Prior Bonds") pursuant to a Trust
Indenture dated as of September 1, 1974, whereunder Deposit
Guaranty National Bank is trustee (the "Prior Indenture"); and
WHEREAS, the Prior Bonds were issued to defray the cost of
acquisition, construction, installation and equipping of certain
air and water pollution control facilities (the "Project") at the
Baxter Wilson Steam Electric Station (the "Plant") of the
Company, located at 770 Kemp Bottom Road, Vicksburg, Mississippi,
within Warren County, Mississippi; the Project was sold by the
County to the Company pursuant to an Installment Sale Agreement
between the County and the Company dated as of September 1, 1974
(the "Prior Agreement"); the Company is now the owner and
operator of the Plant and the Project;
WHEREAS, at the request of the Company, the County proposes,
pursuant to Sections 31-15-21 through 31-15-27, Mississippi Code
of 1972, as amended (the "Act"), and a resolution duly and
validly adopted by the County on ____________, 1994 (the "Issuing
Resolution"), to issue its Pollution Control Revenue Refunding
Bonds, 1994 Series (Mississippi Power & Light Company Project) in
the aggregate principal amount of $8,095,000 (the "Bonds") for
the purpose of providing funds, which, together with other funds
available therefor, will be sufficient to refund all of the Prior
Bonds then outstanding, including providing for the payment of
any redemption premium due or to become due thereon, interest to
accrue to the selected redemption date, any sinking fund
maturities to become due prior to the selected redemption date
and all expenses in connection with such refunding; and
WHEREAS, the County proposes to confirm and continue the
installment sale of the Project to the Company pursuant to the
terms and conditions of this Amended and Restated Installment
Sale Agreement, which fully amends and restates the Prior
Agreement, and the County proposes to refund the Prior Bonds
pursuant to the terms and conditions set forth in this Agreement
by the issuance of the Bonds; and
WHEREAS, the Issuer has received all authorizations,
approvals and consents required to be obtained prior to the
issuance of the Bonds; and
WHEREAS, the Company has received all authorizations,
approvals and consents required to be obtained prior to its entry
into this Agreement; and
WHEREAS, the County and the Company desire to amend and
restate the Prior Agreement in its entirety and each of its
provisions by the Amended and Restated Installment Sale
Agreement;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I.
Definitions
"Act" means Sections 31-15-21 through 31-15-27, Mississippi
Code of 1972, as amended.
["Additional Bonds" means the additional parity bonds
authorized to be issued pursuant to Section ____ of the
Indenture.]
"Agreement" means this Amended and Restated Installment Sale
Agreement and any amendments and supplements thereto.
"Bonds" means the bonds of the County issued pursuant to
Section ____ of the Indenture.
"Bond Fund" means the fund created in Section ____ of the
Indenture.
"Company" means Mississippi Power & Light Company, a
Mississippi corporation, and its successors and assigns and any
surviving, resulting or transferee corporation as provided in
Section ____ hereof.
"Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate
furnished to the County and the Trustee containing the specimen
signature of such person and signed on behalf of the Company by
the President or any Vice President of the Company. Such
certificate may designate an alternate or alternates. The
Company Representative may be an employee of the Company.
"Completion Date" means the date of completion of the
acquisition, construction, installation and equipping of the
Project as that date was certified as provided in the Prior
Agreement.
"County" means Warren County, Mississippi, a political
subdivision of the State of Mississippi.
"County Representative" means the person at the time
designated to act in behalf of the County by written certificate
furnished to the Company and the Trustee containing the specimen
signature of such person and signed on behalf of the County by
the President or Clerk of the Board of Supervisors of the County.
Such certificate may designate an alternate or alternates. The
County Representative may be an employee of the County.
"First Mortgage" means the Mortgage and Deed of Trust dated
as of September 1, 1944, as heretofore and hereafter supplemented
and amended, between the Company and Irving Trust Company and
Frederick G. Herbst (D. W. May, successor), as trustees, securing
first mortgage bonds of the Company heretofore or which may
hereafter be issued thereunder.
"Government Obligations" means (a) direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged, or (b)
obligations issued by a person controlled or supervised by and
acting as an instrumentality of the United States of America, the
payment of the principal of, premium, if any, and interest on
which is fully and unconditionally guaranteed as a full faith and
credit obligation by the United States of America.
"Indenture" means the Trust Indenture dated as of
___________, 1994, between the County and Deposit Guaranty
National Bank, as Trustee, pursuant to which the Bonds are
authorized to be issued and the interest of the County in this
Agreement and in the revenues and receipts received by the County
in respect of the Project as in this Agreement provided are to be
pledged and assigned, and any indenture supplemental thereto.
"Permitted Encumbrances" means, as of any particular time,
(i) liens for taxes not then delinquent, (ii) this Agreement and
the Indenture, (iii) utility, access and other easements and
rights of way, restrictions and exceptions that the Company
Representative certifies will not interfere with the operation of
or impair the value of the Project, (iv) any mechanic's,
laborer's, materialman's, supplier's or vendor's lien or right in
respect thereof if payment is not yet due and payable, (v) such
minor defects, irregularities, encumbrances, easements, rights of
way, and clouds on title as normally exist with respect to
property similar in character to the Project and as do not, in
the opinion of counsel for the Company, materially impair the
property affected thereby for the purpose for which it was
acquired or is held by the County and (vi) the lien of the First
Mortgage and excepted encumbrances as therein defined.
"Plant" means the Company's Baxter Wilson Steam Electric
Station located in the County.
"Pollution Control Act" means Sections 49-17-101 through 49-
17-123, Mississippi Code of 1972, as amended.
"Project" means the air and water pollution control
facilities described in Exhibit A, as amended or revised, and the
Improvements thereto as permitted and installed pursuant to the
Prior Agreement or this Agreement.
"Trustee" means the trustee at the time serving as such
under the Indenture.
ARTICLE II.
Representations
SECTIOM 2.1. Representations by the County. The County
represents and warrants that:
(a) The County is a political subdivision of the State
of Mississippi. Under the provisions of the Pollution
Control Act, the County has the power to enter into the
transactions contemplated by this Agreement and to carry out
its obligations hereunder. The County is duly authorized to
execute and deliver this Agreement. The County agrees that
it will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.
(b) The County through issuance of the Prior Bonds
provided funds for the acquiring, constructing, installing
and equipping of the Project, and has sold the Project to
the Company, which sale is hereby confirmed.
(c) The County will, upon the request and at the
expense of the Company, cause the execution and delivery
from time to time to the Company of such further instruments
of conveyance as the Company deems to be necessary to effect
or evidence the conveyance to the Company of good and
marketable title to the Project, or any portion thereof,
subject only to Permitted Encumbrances.
(d) The County has authorized the issuance of not
exceeding $8,095,000 aggregate principal amount of its Bonds
on the terms set forth in the Indenture for the purpose of
providing funds which, together with other funds available
therefor to be provided by the Company, will be sufficient
to refund the Prior Bonds.
Section 2.2. Representations by the Company. The Company
represents and warrants that:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Mississippi,
has power to enter into, and to perform and observe the
agreements and covenants on its part contained in, this
Agreement and by proper corporate action has duly authorized
the execution and delivery of this Agreement.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement will conflict with or
constitute a breach of or default under the Company's
corporate charter or any agreement or instrument to which
the Company is a party or by which it is bound.
(c) The Air and Water Pollution Control Commission of
the State of Mississippi in 1974 found and certified that
the Project is necessary and that the design thereof will
result in the elimination, mitigation and/or prevention of
air and water pollution.
(d) Substantially all of the proceeds of the Prior
Bonds were used to pay Costs of Construction of the Project
that constituted proper costs of air and water pollution
control facilities and sewage or solid waste disposal
facilities within the meaning of Section 103(c)(4)(E) or (F)
of the Internal Revenue Code of 1954 and the regulations
thereto, as in effect in 1974 and 1975, at the time of such
payments.
(e) The Project, as designed and constructed, at its in-
service date, had a reasonably expected economic life in
excess of 30 years, and its cost of construction was not
less than $8,575,000.
ARTICLE III.
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
Section 3.1. Construction and Equipping of the Project. The
County and the Company agree that the Project has been acquired,
constructed, installed and equipped with all reasonable dispatch,
delays incident to strikes, riots, acts of God or public enemy or
any delay beyond the reasonable control of the County or the
Company only excepted; that if such acquisition, construction,
installation and equipping were delayed for any reason, there
shall be no resulting liability on the part of the County and no
diminution in or postponement of the amounts payable by the
Company pursuant to this Agreement.
The County and the Company agree that the Company shall be
authorized to make substitutions for components of the Project,
provided that no change which would alter the character or
function of the Project shall be made unless the Company obtains
and delivers to the Trustee an opinion of counsel qualified in
such matters and acceptable to the Trustee to the effect that
such change will not result in the interest on the Bonds or any
portion thereof includable in gross income for purposes of
Federal income taxation.
Section 3.2. Agreement to Issue Bonds and Additional Bonds;
Application of Bond Proceeds. In order to provide funds for the
payment of the cost of acquiring the Project and refunding the
Prior Bonds, the County will issue and sell the Bonds as and when
requested by the Company, and shall deposit the proceeds thereof
with the Trustee as follows:
(a) In the Bond Fund a sum equal to the accrued
interest, if any, paid by the original purchasers of the
Bonds; and
(b) In the Prior Bond Fund the balance of such
proceeds.
The County agrees, upon written request of the Company, to
authorize the issuance of Additional Bonds upon the terms and
conditions and for the purposes provided in Section 2.09 of the
Indenture.
Section 3.3. Agreement to Redeem Bonds. The Company agrees
to deposit with the Prior Trustee, in funds available on the
Redemption Date, into the Bond Fund created under the Prior
Indenture and in accordance with the terms of the Prior
Indenture, the amount necessary to pay the accrued interest and
redemption premium due on the Prior Bonds. Pursuant to the
Indenture, the County shall instruct the Trustee to deposit with
the Prior Trustee from the proceeds of the Bonds the principal
proceeds of the Bonds, being the amount necessary to pay the
outstanding principal of the Prior Bonds. The Company agrees to
make such payment of principal on the Prior Bonds to the extent
that the amount deposited by the Trustee as aforesaid is
insufficient for such purpose.
Section 3.4. Disbursement from the Construction Fund. The
Company represents and certifies that all proceeds of the Prior
Bonds deposited in the Bond Fund or Construction Fund created by
the Prior Indenture have been disbursed as provided in the Prior
Agreement on or before the Completion Date as therein defined;
which was ____________.
Section 3.5. Special Arbitrage Covenants. The Company
further covenants and represents to and for the benefit of the
purchasers of the bonds that, on the basis of the facts,
estimates and circumstances now known and reasonably expected to
be in existence on the date or dates of issue of the Bonds, no
use will be made of the proceeds from the issue and sale of the
Bonds which would cause the Bonds to be classified as of the date
or dates of their issue as arbitrage bonds within the meaning of
Section 148 of the Code. The Company further covenants and
agrees to pay Rebatable Arbitrage (as defined in the Certificate)
to the United States Government in accordance with the provisions
of its Tax Certificate dated and delivered at the date of
issuance of the Bonds in order to maintain continuous compliance
with Section 148 of the Code.
ARTICLE IV.
Term of Agreement; Sale of the Project;
Provisions for Payment
Section 4.1. Term of Agreement. This Agreement shall remain
in full force and effect from the date hereof until such time as
all of the Bonds shall have been fully paid or provision made for
such payment; provided, however, that this Agreement may be
terminated prior to said date if the Company shall repay the
entire purchase of the Project pursuant to Article VIII hereof.
Section 4.2. Sale of the Project Confirmed. In further
consideration of the Company's agreement to pay the purchase
price, payable in installments as set forth in this Agreement,
the County has conveyed and vested in the Company all of the
right, title and interest of the County in the Project.
Section 4.3. Use of the Project. The County hereby
covenants and agrees that it will not take any action, other than
pursuant to the exercise of its rights under Section 7.2 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,
cooperate with the Company in order that the Company may have
possession and enjoyment of the Project.
Section 4.4. Purchase Price and Other Amounts Payable.
During the term of this Agreement, the Company will pay to the
Trustee (in funds which will be immediately available funds on
the day when payment is due) for deposit into the Bond Fund as
the purchase price for the Project an amount equal to the
aggregate principal amount of the Bonds, and as interest on the
purchase price of the Project an amount equal to the interest and
premium (if any) on the Bonds, all of which shall be payable at
the times and in the amounts as follows: on the day when payment
thereof is due, commencing with the first interest payment date
on the Bonds and continuing thereafter until the principal of,
premium (if any) and interest on the Bonds shall have been fully
paid (or provision for the payment thereof shall have been made
in accordance with the Indenture), the Company shall pay amounts
as interest on, or as interest on and principal of, the purchase,
price of the Project, as the case may be, which will be equal to
the amounts payable on such date, respectively, as interest on,
or as interest on premium (if any) and principal of, the Bonds,
as the case may be [whether at the stated maturity or by
mandatory redemption thereof as provided in the Indenture], or on
any other date when the principal shall become, or be required to
become, due; provided, however, that no partial prepayment of the
purchase price of the Project and interest thereon pursuant to
Section 8.1 hereof shall limit the Company's obligation to pay
the amount of purchase price and interest thereon which, together
with such prepayment, shall equal the principal of, premium (if
any) and interest on the outstanding Bonds. In the event there
are available moneys in the Bond fund on any payment date, such
moneys shall be credited against the purchase price or interest
payment then due, first in respect of interest on the purchase
price and then to the extent of remaining moneys, in respect of
principal of the purchase price.
[The Company may direct the Trustee to use moneys in the
Bond Fund to redeem Bonds prior to maturity pursuant to Section
3.01 of the Indenture or to purchase Bonds on the open market at
any time for cancellation, in the manner provided in Section 5.04
of the Indenture.]
The Company shall not be obligated to make any further
purchase payments under this Section and the Company's obligation
to make purchase payments under this Section 4.4 shall be deemed
satisfied at any time that the entire principal, premium (if any)
and interest on the Bonds shall have been fully paid in
accordance with their terms, or any time that there shall be in
the Bond Fund an amount sufficient to pay, retire and redeem all
outstanding Bonds in accordance with the provisions of the
Indenture (including, without limiting the generality of the
foregoing, principal, interest to maturity or earliest applicable
redemption date, as the case may be, redemption premiums (if
any), expenses of redemption and Trustee's and paying agents'
fees).
[At its option, to be exercised on or before the forty-fifth
day next preceding the date any Bonds are to be redeemed pursuant
to the sinking fund requirements provided in Section 3.06 of the
Indenture, the Company may deliver to the Trustee Bonds in an
aggregate principal amount not in excess of the principal amount
of Bonds to be so redeemed on such date. Each Bond so delivered
shall be credited by the Trustee at 100 percent of the principal
amount thereof (i) against the sinking fund provision applicable
to such date, or (ii) as otherwise provided by the Company.]
The Company will also pay (i) the fees and charges of the
Trustee and any paying agents under the Indenture, such fees and
charges to be paid directly to the Trustee and the paying agents
for their respective accounts as and when such fees and charges
become due and payable; and (ii) any expenses in connection with
any redemption of the Bonds.
Section 4.5. Payments Assigned. It is agreed that all
payments to be made by the Company pursuant to section 4.4 of
this Agreement are assigned to the Trustee. The Company assents
to such assignment and hereby agrees that its obligation 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 County 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
County. The Company hereby agrees to pay to the Trustee all of
said payments payable by the Company pursuant to Section 4.4 of
this Agreement.
Section 4.6. Indemnity Against Claims. The Company will
indemnify the County and the Trustee against claims arising out
of construction agreements, the construction of the Project, or
the County's acquisition of an interest in the Project. The
Company will also pay and discharge and will indemnify and held
harmless the County from (a) any lien or charge upon payments by
the Company to the County hereunder, and (b) any taxes,
assessments, impositions and other charges in respect of the
Project except that the Company need not pay or discharge any
Permitted Encumbrance so long as it remains a Permitted
Encumbrance. If any such claim is asserted, or any such lien or
charge upon payments, or any such taxes, assessments, impositions
or other charges, are sought to be imposed, the County or the
Trustee, as the case may be, will give prompt 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 4.7. Maintenance of Project by Company. The Company
agrees that at all times during the terms of this Agreement it
will, at its own expense, maintain, preserve and keep the Project
or cause the Project to be maintained, preserved and kept with
the appurtenances and every part and parcel thereof, in good
repair, working order and condition and that it will from time to
time make or cause to be made all necessary and proper repairs,
replacements and renewals; 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
County, Trustee or the Bondholders thereof.
Section 4.8. Insurance Required. The Company agrees to
insure the Project in such amounts and in such manner as its
similar properties are usually insured against loss or damage of
the kinds usually insured against by it, and to carry liability
insurance with respect to the Project in such amounts and in such
manner as are carried by it with respect to similar properties.
Section 4.9. Obligation of the Company Unconditional. The
obligation of the Company to make the payments pursuant to this
Agreement and to perform and observe the other agreements on its
part contained herein shall be absolute and unconditional. Until
such time as the principal of, premium, if any, and interest on
the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture,
the Company (i) will not suspend or discontinue any payments
pursuant to this Agreement, (ii) will perform and observe all its
other agreements contained in this Agreement and (iii) except for
provided in Article VIII, will not terminate this Agreement for
any cause including, without limiting the generality of the
foregoing, failure of the County to complete the Project, failure
of the County's 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 County 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 4.7 shall
be construed to release the County from the performance of any of
the agreements on its part herein contained; and, in the event
the County shall fail to perform any such agreement on its part,
the Company may institute such action against the County as the
Company may deem necessary to compel performance or recover its
damages for non performance so long as such action shall not
violate the agreements on the part of the Company contained in
the preceding sentence, and in no event shall the Company be
entitled to any diminution of the amounts payable under Section
4.4 hereof. The Company may, however, at its own cost and
expense and in its own name or in the name of the County,
prosecute or defend any action or proceeding or take any other
action involving third persons which the Company deems reasonably
necessary in order to insure the acquisition, construction,
installation, equipping and completion of the Project or to
secure or protect its right of possession, occupancy and use
hereunder, and in such event the County hereby agrees to
cooperate fully with the Company and to take all action necessary
to effect the substitution of the Company for the County in any
such action or proceeding if the Company shall so request.
ARTICLE V.
Special Covenants
Section 5.1. No Warranty of Conditions or Suitability by the
County. The County makes no warranty, either express or implied,
as to the Project or that it will be suitable for the Company's
purposes or needs.
Section 5.2. Inspection of the Project. The Company agrees
that the County, the Trustee and their or either of their duly
authorized agents shall have the right at all reasonable times to
enter at their own risk upon the Plant site and to examine and
inspect the Project. The Company further agrees that the County
and its duly authorized agents shall have such rights of access
to the Project as may be reasonably necessary to cause to be
completed the acquisition, construction, equipping and
installation provided for in Section 3.1 hereof. The County and
the Trustee shall also be permitted, at all reasonable times, to
examine the books and records of the Company with respect to the
Project.
Section 5.3. 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 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 5.3, consolidated with or merge into another
domestic corporation (i.e., a corporation incorporated and
existing under the laws of one of the States of the United States
of America or under the laws of the United States of America) or
permit one or more other corporations to consolidate with or
merge into it, or sell or otherwise transfer to another domestic
corporation all or substantially all of its assets as an entirety
and thereafter dissolve, provided, in the event the Company is
not the surviving, resulting or transferee corporation, as the
case may be, that 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 is a
Mississippi corporation or is qualified to do business in the
State of Mississippi as a foreign corporation or appoints an
agent for service of process in the State of Mississippi.
Section 5.4. Annual Statement. The Company agrees to have
an annual audit made by its regular independent certified public
accounts and within a reasonable period after the close of each
fiscal year to furnish the Trustee and any bondholder who may so
request a copy of its annual report to its shareholders
containing or accompanied by an opinion of said accountants.
Section 5.5. Further Assurances and Corrective Instruments.
The County 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 5.6. County Representative. Whenever under the
provisions of this Agreement the approval of the County is
required or the County is required to take some action at the
request of the Company, such approval shall be made or such
action shall be taken by the County Representative to the extent
permitted by law; and the Company and the Trustee shall be
authorized to act on any such approval or action and the County
shall have no complaint against the Company or the Trustee as a
result of any such action taken.
Section 5.7. Company Representative. Whenever under the
provisions of this Agreement the approval of the Company is
required or the Company is required to take some action at the
request of the County, such approval or such request shall be
made by the Company Representative; and the County or the Trustee
shall be authorized to act on any such approval or request and
the Company shall have no complaint against the County or the
Trustee as a result of any such action taken.
Section 5.8. Non-Arbitage Covenant. The Company and the
County covenant that they shall take no action, nor shall the
Company direct or approve the Trustee's taking any action or
making any investment or use of the proceeds of the Bonds, which
would cause the Bonds to be "arbitrage bonds" within the meaning
of Section 148 of the Internal Revenue Code of 1986, as amended,
and the proposed or final regulations thereunder as such may be
applicable to the Bonds at the time of such action, investment or
use.
ARTICLE VI.
Assignment, Indemnification, Leasing and
Selling; Redemption
Section 6.1. Assignment and Lease. This Agreement may be
assigned, and the Project may be leased as a whole or in part, by
the Company without the necessity of obtaining the consent of
either the County or the Trustee, subject, however, to the
condition that no assignment or leasing (other than pursuant to
Section 5.3 hereof) shall relieve the Company from primary
liability for any of its obligations hereunder, and in the event
of any such assignment or leasing, the Company shall continue to
remain primarily liable for payments of the amounts specified in
Section 4.4 hereof and for performance and observance of the
other agreements on its part herein provided to be performed and
observed by it to the same extent as though no assignment or
lease had been made. Furthermore, any assignee of the Company's
interest in this Agreement shall assume the obligations of the
Company hereunder to the extent of the interest assigned, and the
Company shall, promptly upon the making of any assignment,
furnish or cause to be furnished to the County and to the Trustee
a true and complete copy of each such assignment and assumption
of obligations.
Section 6.2. Redemption of Bonds. Upon the Company's
deposit of moneys in the Bond Fund in an amount sufficient to
redeem Bonds then subject to redemption, the County, at the
request of the Company, shall forthwith take all steps necessary
under the applicable redemption provisions of the Indenture to
effect redemption of all or part of the then outstanding Bonds,
as may be specified by the Company, on the earliest redemption
date on which such redemption may be made.
Section 6.3. Assignment and Pledge of Rights Under the
Agreement. The County shall assign its rights under this
Agreement and shall pledge any moneys receivable under this
Agreement to the Trustee as security for payment of the principal
of, premium, if any, and interest on the Bonds.
ARTICLE VII.
Events of Default and Remedies
Section 7.1. Events of Default Defined. The following shall
be "events of default" under this Agreement and the terms "event
of default" or "default" shall mean, whenever they are used in
this Agreement, any one or more of the following events:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the first paragraph of
Section 4.4 of this Agreement, or the failure by the Company
to pay within thirty 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, other than as referred to in subsection (a) of
this Section 7.1, for a period of ninety days after written
notice, specifying such failure and requesting that it be
remedied, is given to the Company by the County, unless the
County shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure
stated in the notice cannot be corrected within the
applicable period, the County will not unreasonably withhold
its consent to an extension of such time if corrective
action is instituted by the Company within the applicable
period and diligently pursued until the default is
corrected.
(c) The dissolution or liquidation of the Company or
the filing by the Company of a voluntary petition in
bankruptcy, or failure by the Company promptly to lift or
suspend any execution, garnishment or attachment of such
consequence as will substantially impair the ability of the
Company or the County to perform any of the obligations
under this Agreement, or adjudication of the Company as a
bankrupt, or an assignment by the Company for the benefit of
its creditors, or the entry by the Company into an agreement
of composition with its creditors, or the approval by a
court of competent jurisdiction of a petition applicable to
the Company in any proceeding for its reorganization
instituted under the provisions of the general bankruptcy
act, as amended, or under any similar act which may
hereafter be enacted. The term "dissolution or liquidation
of the Company," as used in this subsection, shall not be
construed to include the cessation of the corporate
existence of the Company resulting either from a merger or
consolidation of the Company into or with another
corporation or a dissolution or liquidation of the Company
following a transfer of all or substantially all of its
assets as an entirety, under the conditions permitting such
actions contained in Section 5.3 hereof.
The foregoing provisions of this Section 7.1 are subject to the
limitation that, if by reason of force majeure the Company is
unable to whole or in part to carry out its agreements on its
part herein contained, other than the obligations on the part of
the Company contained in Article IV hereof, the Company shall not
be deemed in default during the continuance of such inability.
The term "force majeure" as used herein shall mean, without
limitation, 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 or of the State
of Mississippi or any of their departments, agencies or
officials, or 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 with all
reasonable dispatch the cause or causes 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 7.2. Remedies on Default. As provided in Section
7.6 hereof, whenever any event of default referred to in Section
7.1 hereof shall have happened and be continuing the Trustee may
take any one or more of the following remedial steps:
(a) By written notice to the Company, the Trustee may
declare the entire purchase price for the Project together
with accrued interest thereon payable under Section 4.4 of
this Agreement to be immediately due and payable, whereupon
the same shall become immediately due and payable.
(b) The Trustee may have access to and inspect, examine
and make copies of the books and records and any and all
accounts, data and income tax and other tax returns of the
Company.
(c) The Trustee 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
7.2 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), to the Company.
Section 7.3. No Remedy Exclusive. No remedy herein
conferred upon the Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon default shall impair
any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time
to time and as often as maybe deemed expedient.
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should default under any of the
provisions of this Agreement and the Company or the Trustee
should employ attorneys or incur other expenses for the
collection of amounts payable hereunder or the enforcement or
performance or observance of any obligation or agreement on the
part of the Company herein contained, the Company agrees that it
will on demand therefor pay to the County or the Trustee the
reasonable fee of such attorneys and such other expenses so
incurred by the Company or the Trustee.
Section 7.5. No Additional Waiver Implied by One Waiver. In
the event any agreement 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.
Section 7.6. Remedial Rights Assigned To Trustee. Upon the
execution and delivery of the Indenture the Trustee shall have
the exclusive right to exercise all rights and remedies granted
by this Article VIII in the same manner and under the limitations
and conditions that the Trustee is entitled to exercise rights
and remedies upon the occurrence of an event of default pursuant
to Article VIII of the Indenture.
ARTICLE VIII.
Options; Prepayment or Purchase Price
Section 8.1. Options. The Company shall have, and is hereby
granted, options to prepay the purchase price for the Project in
whole and to cancel or terminate this Agreement, and to prepay
the purchase price of the Project in part, as follows:
(a) At any time, so long as the Company is not in
default under this Agreement, the Company may prepay (i) the
entire purchase price together with accrued interest thereon
and terminate this Agreement by paying moneys to the Trustee
for deposit in the Bond Fund which, after crediting against
the purchase price and accrued interest thereon the amount
then on deposit in the Bond Fund, will be equal to an amount
sufficient, or by delivering Government Obligations or
certificates of deposit of a qualified depository of the
State of Mississippi fully secured by Government Obligations
to the Trustee for deposit in the Bond Fund, the principal
of and the interest on which when due, after crediting
against the purchase price and accrued interest thereon the
amount then on deposit in the Bond Fund, will be equal to an
amount sufficient to pay the principal of all Bonds to be
outstanding on a date selected for redemption (which date,
under the Indenture, must be on or after _________________),
interest to accrue on said Bonds to said date, the
redemption premium, if any, payable upon said date and by
paying or making provision for paying all fees and expenses
of the Trustee and any paying agents accrued or to accrue to
said ate and by making arrangements satisfactory to the
Trustee for the giving at the appropriate time of the
required notice of redemption calling all Bonds to be
outstanding on said date of redemption; or (ii) part of the
purchase price and the County agrees that the Trustee may
accept such prepayments of purchase price payments when the
same are tendered by the Company; all purchase price
payments so prepaid under this part (ii) shall be paid to
the Trustee for deposit in the Bond Fund and credited
against the purchase price and interest obligation provided
in Section 4.4 hereof, or shall be used for the redemption
if the Bonds are then subject to redemption, or, at the
election of the Company, purchase of outstanding Bonds in
the manner and to the extent provided in the Indenture;
(b) If unreasonable burdens or excessive liabilities
shall have been imposed upon the County or the Company with
respect to the Project or the operation thereof, including
without limitation, Federal, state or other ad valorem
property, in come or other taxes not being imposed on the
date of this Agreement, the Company may prepay the entire
purchase price and accrued interest thereon and terminate
this Agreement as hereinafter provided;
(c) If the Project or a portion thereof or other
property of the Company in connection with which the Project
is used shall have been damaged or destroyed to such an
extent that the Company deems it not practicable and
desirable to rebuild, repair and restore the Project, the
Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as hereinafter
provided;
(d) If all or substantially all of the Project or other
property of the Company in connection with which the Project
is used is condemned or taken by eminent domain so as to
render the Project unsatisfactory to the Company for its
intended use, the Company may prepay the entire purchase
price and accrued interest thereon and terminate this
Agreement has hereinafter provided;
(e) If the operation of the generating facilities of
which the Project is a part shall be enjoined and the
Company shall decide to discontinue operation thereof, the
Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as hereinafter
provided.
The amount payable by the Company in the event of its
exercise of the right of accelerated payment of the purchase
price and interest pursuant to paragraph (b), (c), (d) and (e) of
this Section 8.1 shall be the sum of (i) an amount of money to be
paid in to the Bond Fund which, after crediting against such
amount the amount then on deposit in the Bond Fund and available
for such purpose, will be sufficient to retire and redeem at the
principal amount thereof all the outstanding Bonds on the date on
which such Bonds will be redeemed, including without limitation,
principal, all interest accrued or to accrue to the date of
redemption and redemption expenses but without premium, plus (ii)
an amount of money equal to the Trustee's and paying agents' fees
and expenses under the Indenture, and the expenses of the County
approved by the Company, accrued and to accrue until such final
payment and redemption of the Bonds.
Section 8.2. Notice of Prepayment. To exercise an option
granted in or to consummate a prepayment pursuant to this Article
VIII, the Company shall give written notice to the County and the
Trustee which shall specify therein the date of closing of the
prepayment, which date shall be not less than 45 days nor more
than 90 days from the date the notice is mailed and, in case of
redemption of the Bonds, the Company shall made arrangements
satisfactory to the Trustee for the giving of the required notice
of redemption.
Section 8.3. Relative Position of this Article and
Indenture. The rights and options granted to the Company in
Section 8.1 hereof shall be and remain prior and superior to the
Indenture and may be exercised or shall be fulfilled, as the case
may be, whether or not the Company is in default hereunder,
provided that such default will not result in nonfulfillment of
any condition to the exercise of any such right or option.
ARTICLE IX.
Miscellaneous
Section 9.1. 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 County, at
the office of the Chancery Clerk, Post Office Box 351, Vicksburg,
Mississippi 39181; if to the Company, at _______________________,
_______________________________; and if to the Trustee, at Post
Office Box 1200, Jackson, Mississippi 39205, Attention Trust
Division. A duplicate copy of each notice, certificate or other
communication given hereunder by either the County or the Company
or the other shall also be given to the Trustee. The County, 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 9.2. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the County, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Sections 5.3, 6.1 and 6.3 hereof.
Section 9.3. 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
invalidate or render unenforceable any other provision hereof.
Section 9.4. Amounts Remaining in the Bond Fund. Any
amounts remaining in the Bond Fund upon expiration or sooner
termination of the terms of this Agreement, after payment in full
of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and the fees
and expenses of the Trustee and any paying agents in accordance
with the Indenture, shall belong to and be paid to the Company by
the Trustee.
Section 9.5. Amendments, Changes and Modifications.
Subsequent to the issuance of the Bonds and prior to their
payment in full (or provision for the payment thereof having been
made in accordance with the provisions of the Indenture), this
Agreement may not be effectively amended, changed, modified,
altered or terminated except in accordance with the Indenture.
Section 9.6. 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 9.7. Recording and Filing. The Company will take
all actions that at the time and from time to time may be
necessary (or, in the opinion of the Trustee, may be necessary)
to perfect, preserve, protect and secure the interests of the
County and the Trustee, or either, in and to the Project,
including, without limitation, the filing of all financing and
continuation statements that may be required under the
Mississippi Uniform Commercial Code.
Section 9.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Mississippi.
Section 9.9. No Charge Against County's Credit. This
Agreement shall inure to the benefit of and shall be binding upon
the County, the Company and their respective successors and
assigns, but no breach of any provision hereof shall ever
constitute or give rise to a pecuniary liability of the County,
or a charge against its general credit or taxing powers nor shall
the county be obligated hereunder except with respect to the
proper application of the proceeds to be derived from the sale of
the Bonds and the revenue and receipts to be derived by it from
the sale of the Project or any part thereof.
Section 9.10. 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.
<PAGE>
IN WITNESS WHEREOF, the County and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective seals to be hereunto affixed and attested by
their duly authorized officers, all as of the date first written.
WARREN COUNTY, MISSISSIPPI
By:
President of the Board of
Supervisors
Attest:
_________________________________
Clerk of the Board of Supervisors
MISSISSIPPI POWER & LIGHT COMPANY
By:
Attest:
______________________________
<PAGE>
EXHIBIT A
Exhibit A to
Amended and Restated Installment Sale Agreement
Between Warren County, Mississippi
and Mississippi Power & Light Company
in Regard to Series A Bonds
DESCRIPTION OF PROJECT
GAS RECIRCULATION SYSTEMS:
UNIT I
1. One full capacity fan with starting turning gear rated for
713,000 CFM gas flow at 22.8 in. water gage static pressure
and 686* F. temperature.
2. Electric motor drive for fan. Motor is horizontal, induction
type, rated at 3,500 h.p., 4160 volts, 3 phase, 60 Hz, 710
RPM.
3. Inlet and outlet gas ducts complete with expansion joints,
hangers, supports, stiffeners, access doors, hoppers, and
drains where required.
4. Insulation and lagging for fan and ducts.
5. Platforms, walkways, and stairs where necessary for access to
operating and maintenance areas.
6. Foundations consisting of piling, concrete, and steel
structures.
7. Electrical supply equipment, including 4160 volt switchgear
with 1200 ampere, metal clad, drawout type, air circuit
braker.
8. Electrically operated controlled dampers in inlet and outlet
ducts. Damper controls are interlocked with the furnace
safeguard supervisory system.
UNIT II
1. Two half capacity fans. Fan ratings are not available at this
time.
2. Electric motor drive for each fan. Motors are horizontal,
squirrel cage induction type, rated at 4500 h.p., 4000 volts,
3 phase, 60 Hz 1200 RPM.
3. Inlet and outlet gas ducts complete with expansion joints,
hangers, supports, stiffeners, access doors, hoppers, and
drains were required.
4. Insulation and lagging for fans and ducts.
5. Platforms, walkway, and stairs where necessary for access to
operating and maintenance areas.
6. Foundations consisting of piling, concrete, and steel
structures.
7. Electrical supply equipment, including 4160 volt switchgear
with two 1200 ampere, metal clad, drawout type, air circuit
breakers.
8. Electrically operated control dampers in inlet and outlet
ducts. Damper controls are coordinated with other boiler
controls and safety interlocks.
CHIMNEY EMISSION MONITORING SYSTEM
1. Analyzer system.
A. Sulfur oxide analyzer (monitoring range 0-1000 ppm).
B. Nitric oxide analyzer (monitoring range 0-600 ppm.)
C. Analyzer calibration equipment.
2. Recording and alarm systems.
3. Smoke density monitor with calibration check equipment.
4. Lift for checking the sampling system and equipment.
A. Steel cage for equipment and personnel lifting.
B. Catwalk and platform at 256' chimney level.
WASTE WATER TREATMENT SYSTEM
1. Oily waste basin used for separation and storage of oily
waste.
A. Earthen basin (W 112.5' x L 465'), 3 on 1 side slopes,
impervious clay lining and a capacity of 2.1 million
gallons.
B. Concrete, manually-operated sluicing gates.
C. Bar screens for solids separation from liquid waste.
2. Oil separation channel
A. Concrete Channel (W 8' x L 51').
B. Mechanical sludge collector.
3. Storage and settling basin (W 112.5' x L 192'), 3 on 1 side
slopes impervious clay lining and a capacity of .77 million
gallons.
4. Soot and chemical waste basin (W 112.5' x L 243'), 3 on 1 side
slopes, impervious clay lining and a capacity of 1.0 million
gallons.
5. Soot filter.
A. Slow and filter with gravel and clay pipe open-jointed
underdrain inside concrete box. Filtration rate .16
gpm/sf and system capacity 200 gpm.
B. Influent pump with 200 gpm capacity.
C. Effluent pump with 210 gpm capacity.
6. Pumping station.
A. Effluent pumps-two, self priming centrifugal pumps, 350
gpm at 55' head.
B. Oil pump - one, 8 gpm at 20 psi.
C. Sludge pump - one, 40 gpm at 26' head.
7. Recirculation line - 4" PVC line used to control pH in waste
treatment system.
8. Effluent quality control equipment.
A. One pH meter to monitor effluent.
B. One pH meter to monitor soot basis effluent.
9. Storage tanks.
A. Oil recovery tank - 30' dia. x 24' height, 3,000 bbl.
B. Oil storage tank - 25'dia. x 16' height, 1,400 bbl.
10.Sludge storage box - 4,000 gal. capacity.
11.Oil skimmers - three 14" belt type skimmers capable of
picking up oily waste at a rate of 1 gpm.
OTHER RELATED POLLUTION CONTROL FACILITIES
<PAGE>
STATE OF MISSISSIPPI SS.:
COUNTY OF WARREN
Personally appeared before me, the undersigned authority in
and for the jurisdiction aforesaid, the within named Richard
George and Oren D. Bailess, who acknowledged to me that they are
President and Clerk, respectively, of the Board of Supervisors of
Warren County, Mississippi, and that for and on behalf of Warren
County, Mississippi, and as its act and deed, they signed, sealed
and delivered the above and foregoing instrument on the day and
in the year therein mentioned, they being first duly authorized
so to do.
Given under my hand and official seal on this ___ day of
_____________, 1994.
Notary Public
STATE OF MISSISSIPPI SS.:
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the jurisdiction aforesaid, the within named
_________________ and ___________________, who are the
_________________ and ___________________, respectively, of
Mississippi Power & Light Company, a corporation organized under
the laws of the State of Mississippi, and that for and on behalf
of said corporation, and as its act and deed, they signed, sealed
and delivered the above and foregoing instrument on the day and
in the year therein mentioned, they being first duly authorized
so to do.
Given under my hand and official seal on this ____ day of
_____________, 1994.
Notary Public
Exhibit F-1(m)
[Letterhead of Wise Carter Child & Caraway]
February 17, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
Referring to the Application-Declaration on Form U-1
(File No. 70-7914), as amended, filed with the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935 by Mississippi Power & Light Company (the "Company")
contemplating, among other things, the disposition and
reacquisition of certain pollution control facilities
("Facilities") pursuant to one or more installment sale
agreement(s) and/or supplements thereto, and the related issuance
and sale by one or more issuing governmental authorities of one
or more series of tax-exempt bonds ("Tax-Exempt Bonds"), all as
referred to and described in the Application-Declaration, as
amended, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) In the event that the proposed transactions are
consummated in accordance with the Application-Declaration, as
amended:
(a) all state laws which relate or are
applicable to the participation by the
Company in the proposed transactions (other
than so-called "blue sky" laws or similar
laws, upon which we do not pass herein) will
have been complied with;
(b) the Company will have legally
reacquired the Facilities; and
(c) the consummation of the proposed
transactions by the Company will not violate
the legal rights of the holders of any
securities issued by the Company.
We hereby consent to the use of this opinion as an
exhibit to the Application-Declaration, as amended.
Very truly yours,
WISE CARTER CHILD & CARAWAY,
Professional Association
By: /s/ Betty Toon Collins
Betty Toon Collins
Exhibit F-2(m)
[Letterhead of Reid & Priest]
February 17, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
Referring to the Application-Declaration on Form U-1
(File No. 70-7914), as amended, filed with the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935 by Mississippi Power & Light Company (the "Company")
contemplating, among other things, the disposition and
reacquisition of certain pollution control facilities
("Facilities") pursuant to one or more installment sale
agreement(s) and/or supplements thereto, and the related issuance
and sale by one or more issuing governmental authorities of one
or more series of tax-exempt bonds ("Tax-Exempt Bonds"), all as
referred to and described in the Application-Declaration, as
amended, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) In the event that the proposed transactions are
consummated in accordance with the Application-Declaration, as
amended:
(a) all state laws which relate or are
applicable to the participation by the
Company in the proposed transactions (other
than so-called "blue sky" laws or similar
laws, upon which we do not pass herein) will
have been complied with;
(b) the Company will have legally
reacquired the Facilities; and
(c) the consummation of the proposed
transactions by the Company will not violate
the legal rights of the holders of any
securities issued by the Company or any
associate company thereof.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. In
giving this opinion, we have relied, as to all matters governed
by the laws of the State of Mississippi, upon the opinion of even
date herewith of Wise Carter Child & Caraway, Professional
Association, of Jackson, Mississippi, General Counsel for the
Company, which is to be filed as an exhibit to the Application-
Declaration, as amended.
We hereby consent to the use of this opinion as an
exhibit to the Application-Declaration, as amended.
Very truly yours,
/s/ Reid & Priest
REID & PRIEST
