UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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:
In the Matter of :
:
MISSISSIPPI POWER & LIGHT COMPANY : CERTIFICATE
: PURSUANT TO
File No. 70-7914 : RULE 24
:
(Public Utility Holding Company :
Act of 1935) :
:
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This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that the
transactions described below, which were proposed by Mississippi
Power & Light Company (the "Company") in the Application-
Declaration on Form U-1, as amended, in the above File
("Application-Declaration"), have been carried out in accordance
with the terms and conditions of, and for the purposes
represented by the Application-Declaration and pursuant to
Supplemental Order of the Securities and Exchange Commission
dated March 10, 1994 with respect thereto (Release No. 35-26000).
On April 20, 1994, the Company entered into separate
Amended and Restated Installment Sale Agreements, dated as of
April 1, 1994, with Warren County, Mississippi, and Washington
County, Mississippi, pursuant to which Warren County issued and
sold $8,095,000 principal amount of its 7% Pollution Control
Revenue Refunding Bonds, 1994 Series (Mississippi Power & Light
Company Project), and Washington County issued and sold
$7,935,000 principal amount of its 7% Pollution Control Revenue
Refunding Bonds, 1994 Series (Mississippi Power & Light Company
Project).
Attached hereto and incorporated by reference are:
Exhibit B-5(a) - Conformed copy of Trust Indenture between
Warren County, Mississippi and the Trustee.
Exhibit B-5(b) - Conformed copy of Trust Indenture between
Washington County, Mississippi, and the
Trustee.
Exhibit B-6(a) - Conformed copy of Amended and Restated
Installment Sale Agreement between the
Company and Warren County, Mississippi.
Exhibit B-6(b) - Conformed copy of Amended and Restated
Installment Sale Agreement between the
Company and Washington County, Mississippi.
Exhibit F-1(n) - Post-effective opinion of Wise Carter Child
& Caraway, Professional Association.
Exhibit F-2(n) - Post-effective opinion of Reid & Priest.
IN WITNESS WHEREOF, the Company has caused this
certificate to be executed this 4th day of May, 1994.
MISSISSIPPI POWER & LIGHT COMPANY
By: /s/Glenn E. Harder
Glenn E. Harder
Vice President-Financial
Strategies and Treasurer
Exhibit B-5(a)
WARREN COUNTY, MISSISSIPPI
to
DEPOSIT GUARANTY NATIONAL BANK,
Trustee
__________________
TRUST INDENTURE
__________________
Dated as of April 1, 1994
__________________
Pollution Control Revenue Refunding Bonds, 1994 Series
(Mississippi Power & Light Company Project)
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the first day of April,
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"), of which $8,095,000
principal amount is now outstanding, 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 March 15, 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 $8,095,000
(the "Bonds") for the purpose of providing funds, which, together
with other funds to be made available therefor by the Company,
will be sufficient to refund all of the Prior Bonds now
outstanding, including providing for the payment of any
redemption premium due or to become due thereon, interest to
accrue to the selected redemption date, any sinking fund
maturities to become due prior to the selected redemption date
and all expenses in connection with such refunding; and
WHEREAS, the County has confirmed and continued the
installment sale of the Project to the Company pursuant to the
terms and conditions of an Amended and Restated Installment Sale
Agreement between the County and the Company dated as of April 1,
1994 (the "Agreement"), which fully amends and restates the Prior
Agreement, and the County proposes to refund the Prior Bonds now
outstanding pursuant to the terms and conditions set forth in
this Indenture by the issuance of the Bonds; and
WHEREAS, the Bonds in registered form and the Trustee's
Certificate of Authentication and Clerk's Registration and
Validation Certificates to be endorsed thereon are to be in
substantially the following form, with appropriate variations,
omissions and insertions as permitted or required by this
Indenture, to wit:
<PAGE>
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
WARREN COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
1994 SERIES
(MISSISSIPPI POWER & LIGHT COMPANY PROJECT)
No. R-
_________$______________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
April 1, 2022
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 determined as described
in the Indenture referred to on the reverse hereof at the rate of
seven per centum (7%) per annum, on October 1, 1994, and semi-
annually thereafter on April 1 and October 1 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 of and redemption 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 23100, Jackson, Mississippi 39225-3100, as paying agent
and trustee under the Indenture, 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 fifteenth day of the month preceding 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] OR [ON PAGES ____ THROUGH ____
HEREOF], WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH ABOVE THE EXECUTION AND AUTHENTICATION.
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, redemption 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 1st day of April, 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. A signed original of the Opinion of Bond Counsel,
Watkins Ludlam & Stennis, Jackson, Mississippi, pertaining to the
Bonds is on file with the undersigned.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
By:___________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be printed on all Bonds)
VALIDATION CERTIFICATE
STATE OF MISSISSIPPI
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 validated and confirmed by Decree
of the Chancery Court of Warren County, Mississippi, rendered on
the 8th day of April, 1994.
[facsimile or manual signature]
[SEAL] Clerk, Board of Supervisors and
Chancery Clerk of Warren County,
Mississippi
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OF THE
FORM OF BOND OR ON SUPPLEMENTAL PAGES THEREOF)
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 April 1, 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, Paying
Agent and the holders of the Bonds.
The Bonds are issuable as fully registered Bonds 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, 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 subject to optional redemption by the Issuer
prior to maturity if 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 Issuer at any time at the principal amount thereof
plus accrued interest to the redemption date but without premium.
The Bonds are also subject to optional redemption by the
Issuer at the direction of the Company, prior to maturity, on and
after April 1, 2004, in whole at any time or in part from time to
time and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, 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
April 1, 2004 through March 31, 2005 102%
April 1, 2005 through March 31, 2006 101%
April 1, 2006 and thereafter 100%
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, 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 or the Issuer to observe any covenant, agreement or
representation in the Indenture, 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. The Bonds shall be redeemed either in whole or in part in
such principal amount that the interest payable on the Bonds
remaining outstanding after such redemption would not be included
in the gross income of a holder thereof (other than a holder who
is a "substantial user" or "related person" within the meaning of
Section 147(a) of the Code and applicable regulations promulgated
thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to April 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
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 of any Bond
as to which no failure or defect occurred. Notice of optional
redemption shall be conditioned upon the deposit of moneys with
the Trustee on or 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, in the case of an optional redemption, moneys for payment of
the redemption price and accrued interest being held by the
Trustee, 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 the Trustee. If a portion of this Bond shall be called
for redemption, a new 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
special obligations of the Issuer, the principal of, redemption
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,
redemption 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,
redemption 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,
redemption 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,
redemption premium, if any, and interest on the Bonds and all
fees and expenses of the Trustee, 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 a majority 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
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 of Mississippi shall govern its construction.
[FORM OF ASSIGNMENT]
(To be printed on all Bonds)
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - _____ Custodian _____ under Uniform
(cust) (minor)
Gifts to Minors Act ________________
(state)
Additional abbreviations may also be used though not in the
above list.
_________________________________________________
ASSIGNMENT
For value received,
hereby sell(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
(Please print or typewrite Name and
Address, including Zip Code, of Assignee)
the within Bond and hereby irrevocably constitute(s) and
appoint(s)
attorney, with full power of substitution in the premises, to
transfer this Bond on the books of the within mentioned
Registrar.
DATED _____________
Signature Guaranteed:
___________________________ ______________________________
NOTICE: Signature(s) must NOTE: The name signed to this
be guaranteed by a member assignment must correspond with
firm of the New York Stock the name of the payee as it
Exchange or a commercial appears upon the face of the
bank or trust company. within Certificate in every
particular, without alteration,
enlargement or change whatsoever.
[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, redemption premium, if
any, and interest on the Bonds and a valid assignment of the
rights of the County 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,
redemption 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 any part thereof, as follows:
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:
Bonds cancelled after purchase in the open market
or because of payment at or redemption prior to maturity;
Bonds deemed paid as provided in Article VII
hereof; and
Bonds in lieu of which other Bonds have been
authenticated under Section 2.08 hereof.
THE BONDS
Authorized Amount of Bonds. No Bonds may be issued under
the provisions of this Indenture except in accordance with this
Article II.
Issuance of Bonds. There shall be issued under and secured
by this Indenture Bonds of the County in the aggregate principal
amount of Eight Million Ninety-Five Thousand Dollars ($8,095,000)
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 the 1st day of April, 1994 (or as otherwise
provided in this Indenture), shall bear interest from the date
determined pursuant to Section 2.04 hereof at the rate of seven
per centum (7%) per annum, which interest shall be payable on
October 1, 1994, and semi-annually thereafter on the 1st day of
April and October of each year until the principal sum is paid or
duly provided for, and shall thereupon be stated to mature,
subject to the right of prior redemption as hereinafter set
forth, on the 1st day of April, 2022.
The Bonds are and will continue to be payable as to
principal, redemption premium, if any, 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 special
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.
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.
Details, Execution and Payment. Each Bond shall bear
interest from the interest payment date next preceding the date
on which it is authenticated, unless authenticated prior to
October 1, 1994, in which event it shall bear interest from April
1, 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 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.
The principal of, redemption premium, if any, 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 and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee and Paying Agent, and payment of the interest on each
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 on the
fifteenth day of the month preceding such interest payment date,
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.
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.
Subject to the provisions of Section 2.10 hereof:
(a) 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
Bonds of the same maturity, of any denomination or
denominations authorized by this Indenture, and bearing
interest at the same rate and in the same form as the Bonds
surrendered for exchange.
(b) The County hereby authorizes the exchange of Bonds
at the principal office of the Trustee.
(c) 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.
(d) Any 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 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 Bond, of the same maturity and bearing
interest at the same rate.
(e) In all cases in which Bonds shall be exchanged or
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. Such transfers of registration or exchanges of
Bonds shall be without charge to holders of such Bonds, but
any taxes or other governmental charge required to be paid
with respect to such exchange or transfer shall be paid by
the holder of the Bond, 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 the selection of Bonds for such redemption or
after such Bonds or any portion thereof has been selected
for redemption.
(f) 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.
(g) At reasonable times and under reasonable
regulations established by the Trustee, the list of
registered owners of the Bonds may be inspected and copied
by the Company or by holders or owners (or a designated
representative thereof) of 10% or more in principal amount
of Bonds then outstanding, such possession or ownership and
the authority of such designated representative to be
evidenced to the satisfaction of the Trustee.
Delivery of Bonds; Application of Proceeds. Upon the
execution and delivery of this Indenture, the County shall
execute and deliver to the Trustee and the Trustee shall
authenticate the 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 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 authorizing the execution of this
Indenture and the issuance of the Bonds.
An original duly executed counterpart of the
Agreement and an original duly executed counterpart of this
Indenture.
A request and authorization to the Trustee on
behalf of the County, signed by the President of the Board
of Supervisors of the County, to authenticate and deliver
the 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 or transferred as follows:
(i) To the Trustee for deposit in the Bond Fund, a
sum equal to the accrued interest, if any, paid by the
original purchasers of the Bonds; and
(ii) To the trustee for the Prior Bonds, the
balance of such proceeds.
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.
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, the holder's filing with the Trustee evidence satisfactory
to it and to the County that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the County and the
Trustee indemnity satisfactory to them.
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
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.
Section 2.10. Book-Entry Only System. Upon issuance of the
Bonds, one fully-registered Bond will be registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Securities Depository") in the aggregate principal amount of the
Bonds. So long as Cede & Co. is the registered owner of the
Bonds, as nominee of the Securities Depository, references herein
to the holders of the Bonds or registered owner of the Bonds
shall mean Cede & Co. and shall not mean the beneficial owners of
the Bonds.
The Letter of Representations in substantially the form
attached hereto as Exhibit A, with such changes, omissions,
insertions and revisions as the Clerk of the Board of Supervisors
of the County and the Trustee may approve at any time, is hereby
approved, and the County and the Trustee shall execute and
deliver such Letter of Representations. The approval of the
County and the Trustee of any changes, omissions, insertions and
revisions to the Letter of Representations shall be conclusively
established by the execution of the Letter of Representations by
Clerk of the Board of Supervisors of the County and the Trustee.
Transfers of beneficial ownership interests in the Bonds
will be accomplished by book entries made by the Securities
Depository, and, in turn by the participants in the Securities
Depository (the "Participants") who act on behalf of the indirect
participants in the Securities Depository (the "Indirect
Participants") and the beneficial owners of the Bonds. For each
transfer and exchange of beneficial ownership in the Bonds, the
beneficial owner may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in
relation thereto.
The Trustee and the County shall recognize the Securities
Depository or its nominee, Cede & Co., as the owner of the Bonds
for all purposes, including notices and voting. Conveyance of
notices and other communications by the Securities Depository to
Participants and by such Participants to Indirect Participants,
and by Participants and Indirect Participants to beneficial
owners of the Bonds will be governed by arrangements among the
Securities Depository, the Participants and the Indirect
Participants, subject to any statutory and regulatory
requirements as may be in effect from time to time.
NEITHER THE COUNTY NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH RESPECT
TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT; (ii)
THE PAYMENT BY THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL AMOUNT OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS; (iii) THE DELIVERY TO THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED
TO BE GIVEN TO HOLDERS OF THE BONDS UNDER THE TERMS OF THIS
INDENTURE; (iv) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR
(v) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by
giving notice to the Trustee and discharging its responsibilities
with respect thereto under the applicable law. In such event, or
in the event the County at the request of the Company elects to
use a similar book-entry system with another securities
depository, there may be a successor securities depository (all
references to the Securities Depository include any such
successor). The County at the request of the Company may also
determine to discontinue participation in the system of book-
entry transfer through the Securities Depository at any time by
giving reasonable notice to the Securities Depository. If the
book-entry system is terminated, Bond certificates will be
delivered to the beneficial owners, at the expense of the
Company, as provided herein. The beneficial owners of the Bonds,
upon registration of certificates held in the beneficial owners'
names, will then become the registered owners of the Bonds and
registration, transfer and exchange of the Bonds by such owners
will be governed by Section 2.05 herein.
REDEMPTION OF BONDS BEFORE MATURITY
Redemption Dates and Prices. The Bonds are subject to
optional redemption by the County prior to maturity, if 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 optional redemption prior to
maturity by the County, at the direction of the Company, prior to
maturity, on and after April 1, 2004, in whole at any time or in
part from time to time and if in part, by lot or in such other
manner as may be determined by the Trustee to be fair and
equitable, 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
April 1, 2004 through March 31, 2005 102%
April 1, 2005 through March 31, 2006 101%
April 1, 2006 and thereafter 100%
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, 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 or the Issuer to observe any covenant, agreement or
representation in this Indenture, 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" of the Project
or "related person" within the meaning of Section 147 of the
Internal Revenue Code of 1986, as amended, and applicable
regulations promulgated thereunder (the "Code")) under Section
103 of the Code. The Bonds shall be redeemed, whether in whole
or in part, in such principal amount that the interest payable on
the Bonds remaining outstanding after such redemption would not
be included in the gross income of a holder thereof (other than a
holder who is a "substantial user" or "related person" within the
meaning of Section 147(a) of the Code and applicable regulations
promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the County at the direction of the Company, in whole but not in
part, at any time prior to April 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
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 Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such
registered Bond by $5,000.
Notice of Redemption. At least thirty (30) days but not
more than sixty (60) days before the redemption date of any Bonds
the Trustee shall cause a notice of any such redemption, either
in whole or in part, 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 Bonds to be redeemed in part only,
the portion of the principal amount thereof to be redeemed. In
case any 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
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
there shall not have been 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. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
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 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, such Bonds or portions of Bonds shall cease to be
entitled to any benefit or security under this Indenture, 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 3.04 of
this Article, to receive Bonds for any unredeemed portions of
Bonds.
Partial Redemption. In case part but not all of an
outstanding 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 Bond so surrendered, a
Bond of the same maturity and bearing interest at the same rate.
Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the Bond Fund or shall have
received from 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 shall have no responsibility with respect to such moneys.
GENERAL COVENANTS
Payment of Principal, Redemption Premium, if any, and
Interest. The County covenants that it will promptly pay the
principal of, redemption 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.
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 Bonds
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 Bonds and the execution and delivery of this Indenture has
been duly and effectively taken, and that the 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.
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 indenture or 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 redemption 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 Agreement, including purchase price installments
or any other income from the Agreement; 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.
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 revenues and receipts receivable by the County
pursuant to the Agreement, 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.
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.
Prohibited Activities. The County and the Trustee covenant
that neither of them shall take any action or suffer or permit
any action to be taken or condition to exist which causes or may
cause the interest payable on the Bonds to be includable in gross
income for purposes of federal income taxation. Without limiting
the generality of the foregoing, the Issuer and the Trustee
covenant that (a) the proceeds of the sale of the Bonds, the
earnings thereon, and any other moneys on deposit in any fund or
account maintained in respect of the Bonds (whether such moneys
were derived from the proceeds of the sale of the Bonds or from
other sources) will not be used in a manner which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code, and (b) all action with respect to the
Bonds required by Section 148(f) of the Code shall be taken in a
timely manner.
REVENUES AND FUNDS
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, redemption
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, redemption premium, if any, and
interest on the Bonds.
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, redemption premium, if any, and interest on the
Bonds as provided in this Indenture.
Payments into the Bond Fund. There shall be deposited into
the Bond Fund any accrued interest received from the sale of the
Bonds. In addition, there shall be deposited into the Bond Fund,
as and when received, (i) all purchase price payments and the
interest thereon made pursuant to the Agreement; and (ii) 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 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, redemption premium, if any, and interest on the
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.
Use of Moneys in the Bond Fund. Except as provided in
Section 5.08 hereof, moneys in the Bond Fund shall be used solely
for the payment of the principal of, redemption premium, if any,
and interest on the Bonds.
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,
redemption premium, if any, and interest on the Bonds as the same
become due and payable for the purpose of paying said principal
of, redemption premium, if any, and interest, which authorization
and direction the Trustee hereby accepts.
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 six 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 of Mississippi), at which time such funds shall be
transferred, upon written request from a Company Representative
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.
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 under any provision of this Indenture or the Agreement 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 and for
moneys deposited with or paid to the Trustee pursuant to Article
VII hereof, shall, while held by the Trustee, constitute part of
the trust estate and be subject to the security interest created
hereby.
Repayment to the Company from Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of the principal
of, redemption premium, if any, and interest on 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.
Creation and Use of the Rebate Fund. There is hereby
created and established a special fund to be designated "Warren
County 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 County 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 Company's
Tax Certificate and Covenants pertaining to the Bonds (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 County and the Trustee shall not make or agree to make
any payments or participate in any non-arms-length transaction
which would have the effect of reducing the earnings on
investments, thereby reducing the amount required to be rebated
to the United States under Section 148(f) of the Code and
regulations thereunder.
The Rebate Fund shall not provide further security for the
Bonds.
INVESTMENTS
Investment of Moneys. Except as otherwise provided in this
Article VI, any moneys held as part of the Bond 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 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 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. 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 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 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 County 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 County obligates itself to comply
throughout the term of the Bonds with the requirements of Section
148 of the Code.
DISCHARGE OF INDENTURE
Discharge of Indenture. When the principal of, redemption
premium, if any, and interest on all of the Bonds shall have been
paid, or deemed paid as provided in this Article, and if the
County 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) and shall not then be in default under any of its
obligations under the terms of the Agreement, 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 and to pay to the holders of the Bonds
any amounts held by the Trustee for the payment of the principal
of, redemption 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, redemption premium, if any, and
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 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
County, in form satisfactory to the Trustee, irrevocable
instructions to give proper notice of such redemption and 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 redemption
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
telecopy 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 redemption 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; provided, in addition, that the Trustee shall have
received the opinion of Bond Counsel to the effect that such
deposit does not adversely effect the exclusion of the interest
on the Bonds from gross income for purposes of federal income
taxation.
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Events of Default. Each of the following events shall
constitute and be referred to in this Indenture as an "event of
default":
default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
default in the due and punctual payment of the
principal of and redemption premium, if any, on any Bond
hereby secured and outstanding, whether at the stated
maturity thereof, or upon proceedings for the unconditional
redemption thereof, or upon the maturity thereof by
acceleration;
default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the County and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of any aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the County, or the Company on behalf of the
County, within such period and is being diligently pursued;
or
the occurrence of an "event of default" under
Section 7.1(c) or (d) of the Agreement.
The term "default" as used in clauses (a), (b) and (c)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "event of default" as hereinabove
provided.
Acceleration. Upon the occurrence of an event of
default specified in paragraphs (a), (b) or (d) of Section 8.01
hereof, the Bonds and any interest accrued thereon, shall,
without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in the same manner as notice of redemption under 3.02
hereof.
If, after the principal of the Bonds has become 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 redemption 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 acceleration shall have become due and
payable upon the Bonds, are paid by the County, and the County
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 acceleration 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.
Other Remedies. If any event of default occurs and is
continuing, except as otherwise provided in Section 9.11 hereof,
the Trustee may pursue any available remedy by suit at law or in
equity to enforce the payment of the principal of and redemption
premium, if any, and interest on the Bonds then outstanding
hereunder, then due and payable, and 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.
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
as Trustee:
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;
bring suit upon the Bonds;
by action or suit in equity require the County to
account as if it were the trustee of an express trust for
the bondholders; or
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.
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.
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.
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.
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, including but not limited to payments for
and expenses of third party professionals, be deposited in the
Bond Fund and all moneys in the Bond Fund shall be applied as
follows:
Unless the principal of all the Bonds shall
have become 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 redemption
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.
THIRD - Payment of interest on and principal of
the Bonds, and to the redemption of Bonds in accordance
with the provisions of Article V.
If the principal of all the Bonds shall have
become 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.
If the principal of all the Bonds shall have
become due and payable, and if such acceleration 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 until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of, redemption 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.
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 subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the holders of
the outstanding Bonds.
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 not less than
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, redemption 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, redemption
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 expressed in the Bonds.
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, except to the extent the Trustee is legally bound
by such adverse determination.
Waivers of Events of Default. The Trustee may in its
discretion waive any event of default hereunder and its
consequences and rescind any acceleration 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.
Opportunity of County and Company to Cure Defaults Under
Section 8.01(c); Notice. With regard to any alleged default
concerning which notice is given to the County and the Company
under the provisions of Section 8.01(c), 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 overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
THE TRUSTEE
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:
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.
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 if
selected or retained prior to the occurrence of a default),
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.
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.
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 it were 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.
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.
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.
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.
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.
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 all books, papers and records of the County
pertaining to the Bonds, and to take such memoranda from and
in regard thereto as may be desired.
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.
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.
Before taking any action referred to in this
Indenture, 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.
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.
Fees, Charges and Expenses of Trustee. The Trustee shall be
entitled to payment and reimbursement from the Company 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, redemption
premium, if any, and interest on any Bond upon the trust estate
for the foregoing fees, charges and expenses incurred by it
respectively.
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 provided in
Section 9.01(h), then the Trustee shall promptly give written
notice thereof by certified mail or telecopier communication 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 2.05 hereof to be kept at the
office of the Trustee, such notice to be given on the next
business day if Company defaults on an installment payment under
the Agreement.
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.
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.
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.
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.
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.
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.
Successor Trustee as Bond Registrar, Custodian of 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 Rebate 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.
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 9.11.
INDENTURES SUPPLEMENTAL HERETO
Supplemental Indentures Not Requiring Consent of
Bondholders. The County and the Trustee may with the prior
consent of the Company and with an opinion of Bond Counsel to the
effect that such action will not impair the exclusion of the
interest on the Bonds from gross income for purposes of federal
income taxation, but 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:
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;
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;
to add additional covenants of the County, or to
surrender any right or power herein conferred upon the County;
to subject to this Indenture additional revenues,
properties or collateral; and
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.
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 a
majority 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 date of the principal of or the
interest on any Bond issued hereunder, (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 a majority 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
receives a letter or other instrument signed by an authorized
officer of the Company expressing consent.
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.
AMENDMENT OF AGREEMENT
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; provided, however, that
as a condition of such consent, there may be required an opinion
of Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
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 a
majority 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.
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.
MISCELLANEOUS
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 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. 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.
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.
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.
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 23100, Jackson, Mississippi
39225-3100, Attention: Corporate Trust Administration
Department; and if to the Company at Post Office Box 1640,
Jackson, Mississippi 39205, Attention: Treasurer. 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.
Trustee as Paying Agent and Bond Registrar. The Trustee is
hereby designated and agrees to act as paying agent and as Bond
Registrar for and in respect to the Bonds.
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 redemption 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.
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.
Applicable Provisions of Law. This Indenture shall be
governed by and construed in accordance with the laws of the
State of Mississippi.
Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the
scope or intent of any provisions or Sections of this Indenture.
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 said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named Richard George and
Oren D. Bailess, duly identified before me, who acknowledged that
they are President and Clerk, respectively, of the Board of
Supervisors of Warren County, Mississippi, a County, and that for
and on behalf of said County, and as its act and deed, they
executed and sealed the above and foregoing instrument, after
first having been duly authorized by said County so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF MISSISSIPPI SS.:
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of Deposit Guaranty National Bank, and that for and
on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
Exhibit B-5(b)
WASHINGTON COUNTY, MISSISSIPPI
to
DEPOSIT GUARANTY NATIONAL BANK,
Trustee
__________________
TRUST INDENTURE
__________________
Dated as of April 1, 1994
__________________
Pollution Control Revenue Refunding Bonds, 1994 Series
(Mississippi Power & Light Company Project)
<PAGE>
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the first day of April,
1994, made and entered into by and between Washington 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 July
31, 1974, issued $8,400,000 principal amount of its Pollution
Control Revenue Bonds, Series A-I (Mississippi Power & Light
Company Project) (the "Prior Bonds"), of which $7,935,000
principal amount is now outstanding, pursuant to a Trust
Indenture dated as of June 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
Gerald Andrus 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 on
Mail Route 4, 200 MP&L Road, Greenville, 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 June 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 March 15, 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 $7,935,000
(the "Bonds") for the purpose of providing funds, which, together
with other funds to be made available therefor by the Company,
will be sufficient to refund all of the Prior Bonds now
outstanding, including providing for the payment of any
redemption premium due or to become due thereon, interest to
accrue to the selected redemption date, any sinking fund
maturities to become due prior to the selected redemption date
and all expenses in connection with such refunding; and
WHEREAS, the County has confirmed and continued the
installment sale of the Project to the Company pursuant to the
terms and conditions of an Amended and Restated Installment Sale
Agreement between the County and the Company dated as of April 1,
1994 (the "Agreement"), which fully amends and restates the Prior
Agreement, and the County proposes to refund the Prior Bonds now
outstanding pursuant to the terms and conditions set forth in
this Indenture by the issuance of the Bonds; and
WHEREAS, the Bonds in registered form and the Trustee's
Certificate of Authentication and Clerk's Registration and
Validation Certificates to be endorsed thereon are to be in
substantially the following form, with appropriate variations,
omissions and insertions as permitted or required by this
Indenture, to wit:
<PAGE>
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF MISSISSIPPI
WASHINGTON COUNTY, MISSISSIPPI
POLLUTION CONTROL REVENUE REFUNDING BOND
1994 SERIES
(MISSISSIPPI POWER & LIGHT COMPANY PROJECT)
No. R-_________$______________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
April 1, 2022
REGISTERED OWNER:
PRINCIPAL SUM:
KNOW ALL MEN BY THESE PRESENTS THAT WASHINGTON 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 determined as described
in the Indenture referred to on the reverse hereof at the rate of
seven per centum (7%) per annum, on October 1, 1994, and semi-
annually thereafter on April 1 and October 1 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 of and redemption 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 23100, Jackson, Mississippi 39225-3100, as paying agent
and trustee under the Indenture, 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 fifteenth day of the month preceding 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] OR [ON PAGES ____ THROUGH ____
HEREOF], WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH ABOVE THE EXECUTION AND AUTHENTICATION.
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, redemption 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, WASHINGTON 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 Washington County,
Mississippi, all as of this 1st day of April, 1994.
WASHINGTON 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. A signed original of the Opinion of Bond Counsel,
Watkins Ludlam & Stennis, Jackson, Mississippi, pertaining to the
Bonds is on file with the undersigned.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
By:___________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be printed on all Bonds)
VALIDATION CERTIFICATE
STATE OF MISSISSIPPI
COUNTY OF WASHINGTON
I, the undersigned Clerk of the Board of Supervisors and
Chancery Clerk of Washington County, Mississippi, do hereby
certify that the within Bond has been validated and confirmed by
Decree of the Chancery Court of Washington County, Mississippi,
rendered on the 8th day of April, 1994.
[facsimile or manual signature]
[SEAL] Clerk, Board of Supervisors and
Chancery Clerk of Washington
County,
Mississippi
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OF THE
FORM OF BOND OR ON SUPPLEMENTAL PAGES THEREOF)
This Bond is one of the Issuer's Pollution Control Revenue
Refunding Bonds, 1994 Series (Mississippi Power & Light Company
Project) aggregating $7,935,000 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-I (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 Gerald Andrus
Steam Electric Station (the "Plant") of Mississippi Power & Light
Company (the "Company"), located on Mail Route 4, 200 MP&L Road,
Greenville, 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 June 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 April 1, 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, Paying
Agent and the holders of the Bonds.
The Bonds are issuable as fully registered Bonds 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, 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 subject to optional redemption by the Issuer
prior to maturity if 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 Issuer at any time at the principal amount thereof
plus accrued interest to the redemption date but without premium.
The Bonds are also subject to optional redemption by the
Issuer at the direction of the Company, prior to maturity, on and
after April 1, 2004, in whole at any time or in part from time to
time and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, 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
April 1, 2004 through March 31, 2005 102%
April 1, 2005 through March 31, 2006 101%
April 1, 2006 and thereafter 100%
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, 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 or the Issuer to observe any covenant, agreement or
representation in the Indenture, 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. The Bonds shall be redeemed either in whole or in part in
such principal amount that the interest payable on the Bonds
remaining outstanding after such redemption would not be included
in the gross income of a holder thereof (other than a holder who
is a "substantial user" or "related person" within the meaning of
Section 147(a) of the Code and applicable regulations promulgated
thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to April 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
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 of any Bond
as to which no failure or defect occurred. Notice of optional
redemption shall be conditioned upon the deposit of moneys with
the Trustee on or 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, in the case of an optional redemption, moneys for payment of
the redemption price and accrued interest being held by the
Trustee, 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 the Trustee. If a portion of this Bond shall be called
for redemption, a new 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
special obligations of the Issuer, the principal of, redemption
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,
redemption 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,
redemption 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,
redemption 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,
redemption premium, if any, and interest on the Bonds and all
fees and expenses of the Trustee, 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 a majority 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
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 of Mississippi shall govern its construction.
[FORM OF ASSIGNMENT]
(To be printed on all Bonds)
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - _____ Custodian _____ under Uniform
(cust) (minor)
Gifts to Minors Act ________________
(state)
Additional abbreviations may also be used though not in the
above list.
_________________________________________________
ASSIGNMENT
For value received,
hereby sell(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
(Please print or typewrite Name and
Address, including Zip Code, of Assignee)
the within Bond and hereby irrevocably constitute(s) and
appoint(s)
attorney, with full power of substitution in the premises, to
transfer this Bond on the books of the within mentioned
Registrar.
DATED _____________
Signature Guaranteed:
___________________________ ______________________________
NOTICE: Signature(s) must NOTE: The name signed to this
be guaranteed by a member assignment must correspond with
firm of the New York Stock the name of the payee as it
Exchange or a commercial appears upon the face of the
bank or trust company. within Certificate in every
particular, without alteration,
enlargement or change whatsoever.
[END OF FORM OF BOND]
and
WHEREAS, all things necessary to make the Bonds, when
validated by the Chancery Court of Washington 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, redemption
premium, if any, and interest on the Bonds and a valid assignment
of the rights of the County 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,
redemption 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 any part thereof, as follows:
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:
Bonds cancelled after purchase in the open
market or because of payment at or redemption prior to
maturity;
Bonds deemed paid as provided in Article VII
hereof; and
Bonds in lieu of which other Bonds have been
authenticated under Section 2.08 hereof.
THE BONDS
Authorized Amount of Bonds. No Bonds may be issued under
the provisions of this Indenture except in accordance with this
Article II.
Issuance of Bonds. There shall be issued under and secured
by this Indenture Bonds of the County in the aggregate principal
amount of Eight Million Ninety-Five Thousand Dollars ($7,935,000)
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 "Washington County, Mississippi, Pollution Control
Revenue Refunding Bonds, 1994 Series (Mississippi Power & Light
Company Project)," dated the 1st day of April, 1994 (or as
otherwise provided in this Indenture), shall bear interest from
the date determined pursuant to Section 2.04 hereof at the rate
of seven per centum (7%) per annum, which interest shall be
payable on October 1, 1994, and semi-annually thereafter on the
1st day of April and October of each year until the principal sum
is paid or duly provided for, and shall thereupon be stated to
mature, subject to the right of prior redemption as hereinafter
set forth, on the 1st day of April, 2022.
The Bonds are and will continue to be payable as to
principal, redemption premium, if any, 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 special
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.
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.
Details, Execution and Payment. Each Bond shall bear
interest from the interest payment date next preceding the date
on which it is authenticated, unless authenticated prior to
October 1, 1994, in which event it shall bear interest from April
1, 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 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.
The principal of, redemption premium, if any, 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 and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee and Paying Agent, and payment of the interest on each
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 on the
fifteenth day of the month preceding such interest payment date,
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.
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.
Subject to the provisions of Section 2.10 hereof:
(a) 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 Bonds of the same
maturity, of any denomination or denominations
authorized by this Indenture, and bearing interest at
the same rate and in the same form as the Bonds
surrendered for exchange.
(b) The County hereby authorizes the exchange of
Bonds at the principal office of the Trustee.
(c) 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.
(d) Any 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 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 Bond, of
the same maturity and bearing interest at the same
rate.
(e) In all cases in which Bonds shall be exchanged
or 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. Such
transfers of registration or exchanges of Bonds shall
be without charge to holders of such Bonds, but any
taxes or other governmental charge required to be paid
with respect to such exchange or transfer shall be paid
by the holder of the Bond, 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 the selection
of Bonds for such redemption or after such Bonds or any
portion thereof has been selected for redemption.
(f) 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.
(g) At reasonable times and under reasonable
regulations established by the Trustee, the list of
registered owners of the Bonds may be inspected and
copied by the Company or by holders or owners (or a
designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such
possession or ownership and the authority of such
designated representative to be evidenced to the
satisfaction of the Trustee.
Delivery of Bonds; Application of Proceeds. Upon the
execution and delivery of this Indenture, the County shall
execute and deliver to the Trustee and the Trustee shall
authenticate the 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 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 authorizing the
execution of this Indenture and the issuance of the
Bonds.
An original duly executed counterpart of the
Agreement and an original duly executed counterpart of
this Indenture.
A request and authorization to the Trustee on
behalf of the County, signed by the President of the
Board of Supervisors of the County, to authenticate and
deliver the 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 or transferred
as follows:
(i) To the Trustee for deposit in the Bond
Fund, a sum equal to the accrued interest, if any,
paid by the original purchasers of the Bonds; and
(ii) To the trustee for the Prior Bonds, the
balance of such proceeds.
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.
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, the holder's filing with the Trustee evidence satisfactory
to it and to the County that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the County and the
Trustee indemnity satisfactory to them.
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
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.
Section 2.10. Book-Entry Only System. Upon issuance of the
Bonds, one fully-registered Bond will be registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Securities Depository") in the aggregate principal amount of the
Bonds. So long as Cede & Co. is the registered owner of the
Bonds, as nominee of the Securities Depository, references herein
to the holders of the Bonds or registered owner of the Bonds
shall mean Cede & Co. and shall not mean the beneficial owners of
the Bonds.
The Letter of Representations in substantially the form
attached hereto as Exhibit A, with such changes, omissions,
insertions and revisions as the Clerk of the Board of Supervisors
of the County and the Trustee may approve at any time, is hereby
approved, and the County and the Trustee shall execute and
deliver such Letter of Representations. The approval of the
County and the Trustee of any changes, omissions, insertions and
revisions to the Letter of Representations shall be conclusively
established by the execution of the Letter of Representations by
Clerk of the Board of Supervisors of the County and the Trustee.
Transfers of beneficial ownership interests in the Bonds
will be accomplished by book entries made by the Securities
Depository, and, in turn by the participants in the Securities
Depository (the "Participants") who act on behalf of the indirect
participants in the Securities Depository (the "Indirect
Participants") and the beneficial owners of the Bonds. For each
transfer and exchange of beneficial ownership in the Bonds, the
beneficial owner may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in
relation thereto.
The Trustee and the County shall recognize the Securities
Depository or its nominee, Cede & Co., as the owner of the Bonds
for all purposes, including notices and voting. Conveyance of
notices and other communications by the Securities Depository to
Participants and by such Participants to Indirect Participants,
and by Participants and Indirect Participants to beneficial
owners of the Bonds will be governed by arrangements among the
Securities Depository, the Participants and the Indirect
Participants, subject to any statutory and regulatory
requirements as may be in effect from time to time.
NEITHER THE COUNTY NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH RESPECT
TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT; (ii)
THE PAYMENT BY THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL AMOUNT OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS; (iii) THE DELIVERY TO THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED
TO BE GIVEN TO HOLDERS OF THE BONDS UNDER THE TERMS OF THIS
INDENTURE; (iv) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR
(v) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by
giving notice to the Trustee and discharging its responsibilities
with respect thereto under the applicable law. In such event, or
in the event the County at the request of the Company elects to
use a similar book-entry system with another securities
depository, there may be a successor securities depository (all
references to the Securities Depository include any such
successor). The County at the request of the Company may also
determine to discontinue participation in the system of book-
entry transfer through the Securities Depository at any time by
giving reasonable notice to the Securities Depository. If the
book-entry system is terminated, Bond certificates will be
delivered to the beneficial owners, at the expense of the
Company, as provided herein. The beneficial owners of the Bonds,
upon registration of certificates held in the beneficial owners'
names, will then become the registered owners of the Bonds and
registration, transfer and exchange of the Bonds by such owners
will be governed by Section 2.05 herein.
REDEMPTION OF BONDS BEFORE MATURITY
Redemption Dates and Prices. The Bonds are subject to
optional redemption by the County prior to maturity, if 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 optional redemption prior to
maturity by the County, at the direction of the Company, prior to
maturity, on and after April 1, 2004, in whole at any time or in
part from time to time and if in part, by lot or in such other
manner as may be determined by the Trustee to be fair and
equitable, 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
April 1, 2004 through March 31, 2005 102%
April 1, 2005 through March 31, 2006 101%
April 1, 2006 and thereafter 100%
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, 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 or the Issuer to observe any covenant, agreement or
representation in this Indenture, 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" of the Project
or "related person" within the meaning of Section 147 of the
Internal Revenue Code of 1986, as amended, and applicable
regulations promulgated thereunder (the "Code")) under Section
103 of the Code. The Bonds shall be redeemed, whether in whole
or in part, in such principal amount that the interest payable on
the Bonds remaining outstanding after such redemption would not
be included in the gross income of a holder thereof (other than a
holder who is a "substantial user" or "related person" within the
meaning of Section 147(a) of the Code and applicable regulations
promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the County at the direction of the Company, in whole but not in
part, at any time prior to April 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
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 Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such
registered Bond by $5,000.
Notice of Redemption. At least thirty (30) days but not
more than sixty (60) days before the redemption date of any Bonds
the Trustee shall cause a notice of any such redemption, either
in whole or in part, 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 Bonds to be redeemed in part only,
the portion of the principal amount thereof to be redeemed. In
case any 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
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
there shall not have been 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. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
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 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, such Bonds or portions of Bonds shall cease to be
entitled to any benefit or security under this Indenture, 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 3.04 of
this Article, to receive Bonds for any unredeemed portions of
Bonds.
Partial Redemption. In case part but not all of an
outstanding 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 Bond so surrendered, a
Bond of the same maturity and bearing interest at the same rate.
Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the Bond Fund or shall have
received from 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 shall have no responsibility with respect to such moneys.
GENERAL COVENANTS
Payment of Principal, Redemption Premium, if any, and
Interest. The County covenants that it will promptly pay the
principal of, redemption 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.
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 Bonds
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 Bonds and the execution and delivery of this Indenture has
been duly and effectively taken, and that the 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.
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 indenture or 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 redemption 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 Agreement, including purchase price installments
or any other income from the Agreement; 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.
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 revenues and receipts receivable by the County
pursuant to the Agreement, 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.
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.
Prohibited Activities. The County and the Trustee covenant
that neither of them shall take any action or suffer or permit
any action to be taken or condition to exist which causes or may
cause the interest payable on the Bonds to be includable in gross
income for purposes of federal income taxation. Without limiting
the generality of the foregoing, the Issuer and the Trustee
covenant that (a) the proceeds of the sale of the Bonds, the
earnings thereon, and any other moneys on deposit in any fund or
account maintained in respect of the Bonds (whether such moneys
were derived from the proceeds of the sale of the Bonds or from
other sources) will not be used in a manner which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code, and (b) all action with respect to the
Bonds required by Section 148(f) of the Code shall be taken in a
timely manner.
REVENUES AND FUNDS
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, redemption
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, redemption premium, if any, and
interest on the Bonds.
Creation of Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated
"Washington 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, redemption premium, if any, and interest
on the Bonds as provided in this Indenture.
Payments into the Bond Fund. There shall be deposited into
the Bond Fund any accrued interest received from the sale of the
Bonds. In addition, there shall be deposited into the Bond Fund,
as and when received, (i) all purchase price payments and the
interest thereon made pursuant to the Agreement; and (ii) 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 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, redemption premium, if any, and interest on the
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.
Use of Moneys in the Bond Fund. Except as provided in
Section 5.08 hereof, moneys in the Bond Fund shall be used solely
for the payment of the principal of, redemption premium, if any,
and interest on the Bonds.
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,
redemption premium, if any, and interest on the Bonds as the same
become due and payable for the purpose of paying said principal
of, redemption premium, if any, and interest, which authorization
and direction the Trustee hereby accepts.
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 six 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 of Mississippi), at which time such funds shall be
transferred, upon written request from a Company Representative
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.
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 under any provision of this Indenture or the Agreement 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 and for
moneys deposited with or paid to the Trustee pursuant to Article
VII hereof, shall, while held by the Trustee, constitute part of
the trust estate and be subject to the security interest created
hereby.
Repayment to the Company from Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of the principal
of, redemption premium, if any, and interest on 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.
Creation and Use of the Rebate Fund. There is hereby
created and established a special fund to be designated
"Washington County 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 County 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
Company's Tax Certificate and Covenants pertaining to the Bonds
(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 County and the Trustee shall not make or agree to make
any payments or participate in any non-arms-length transaction
which would have the effect of reducing the earnings on
investments, thereby reducing the amount required to be rebated
to the United States under Section 148(f) of the Code and
regulations thereunder.
The Rebate Fund shall not provide further security for the
Bonds.
INVESTMENTS
Investment of Moneys. Except as otherwise provided in this
Article VI, any moneys held as part of the Bond 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 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 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. 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 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 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 County 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 County obligates itself to comply
throughout the term of the Bonds with the requirements of Section
148 of the Code.
DISCHARGE OF INDENTURE
Discharge of Indenture. When the principal of, redemption
premium, if any, and interest on all of the Bonds shall have been
paid, or deemed paid as provided in this Article, and if the
County 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) and shall not then be in default under any of its
obligations under the terms of the Agreement, 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 and to pay to the holders of the Bonds
any amounts held by the Trustee for the payment of the principal
of, redemption 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, redemption premium, if any, and
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 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
County, in form satisfactory to the Trustee, irrevocable
instructions to give proper notice of such redemption and 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 redemption
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
telecopy 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 redemption 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; provided, in addition, that the Trustee shall have
received the opinion of Bond Counsel to the effect that such
deposit does not adversely effect the exclusion of the interest
on the Bonds from gross income for purposes of federal income
taxation.
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
Events of Default. Each of the following events shall
constitute and be referred to in this Indenture as an "event of
default":
default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
default in the due and punctual payment of the
principal of and redemption premium, if any, on any Bond
hereby secured and outstanding, whether at the stated
maturity thereof, or upon proceedings for the unconditional
redemption thereof, or upon the maturity thereof by
acceleration;
default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the County and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of any aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the County, or the Company on behalf of the
County, within such period and is being diligently pursued;
or
the occurrence of an "event of default" under
Section 7.1(c) or (d) of the Agreement.
The term "default" as used in clauses (a), (b) and (c) above
shall mean default by the County in the performance or observance
of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "event of default" as hereinabove
provided.
Acceleration. Upon the occurrence of an event of default
specified in paragraphs (a), (b) or (d) of Section 8.01 hereof,
the Bonds and any interest accrued thereon, shall, without
further action, become and be immediately due and payable,
anything in this Indenture or in the Bonds to the contrary
notwithstanding, and the Trustee shall give notice thereof in the
same manner as notice of redemption under 3.02 hereof.
If, after the principal of the Bonds has become 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 redemption 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 acceleration shall have become due and
payable upon the Bonds, are paid by the County, and the County
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 acceleration 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.
Other Remedies. If any event of default occurs and is
continuing, except as otherwise provided in Section 9.11 hereof,
the Trustee may pursue any available remedy by suit at law or in
equity to enforce the payment of the principal of and redemption
premium, if any, and interest on the Bonds then outstanding
hereunder, then due and payable, and 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.
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
as Trustee:
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;
bring suit upon the Bonds;
by action or suit in equity require the County to
account as if it were the trustee of an express trust for
the bondholders; or
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.
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.
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.
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.
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, including but not limited to payments for
and expenses of third party professionals, be deposited in the
Bond Fund and all moneys in the Bond Fund shall be applied as
follows:
Unless the principal of all the Bonds shall have
become 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 redemption
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.
THIRD - Payment of interest on and principal of
the Bonds, and to the redemption of Bonds in accordance
with the provisions of Article V.
If the principal of all the Bonds shall have
become 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.
If the principal of all the Bonds shall have
become due and payable, and if such acceleration 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 until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of, redemption 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.
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 subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the holders of
the outstanding Bonds.
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 not less than
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, redemption 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, redemption
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 expressed in the Bonds.
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, except to the extent the Trustee is legally bound
by such adverse determination.
Waivers of Events of Default. The Trustee may in its
discretion waive any event of default hereunder and its
consequences and rescind any acceleration 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.
Opportunity of County and Company to Cure Defaults Under
Section 8.01(c); Notice. With regard to any alleged default
concerning which notice is given to the County and the Company
under the provisions of Section 8.01(c), 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 overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
THE TRUSTEE
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:
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.
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 if
selected or retained prior to the occurrence of a default),
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.
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.
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 it were 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.
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.
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.
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.
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.
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 all books, papers and records of the County
pertaining to the Bonds, and to take such memoranda from and
in regard thereto as may be desired.
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.
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.
Before taking any action referred to in this
Indenture, 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.
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.
Fees, Charges and Expenses of Trustee. The Trustee shall be
entitled to payment and reimbursement from the Company 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, redemption
premium, if any, and interest on any Bond upon the trust estate
for the foregoing fees, charges and expenses incurred by it
respectively.
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 provided in
Section 9.01(h), then the Trustee shall promptly give written
notice thereof by certified mail or telecopier communication 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 2.05 hereof to be kept at the
office of the Trustee, such notice to be given on the next
business day if Company defaults on an installment payment under
the Agreement.
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.
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.
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.
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.
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.
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.
Successor Trustee as Bond Registrar, Custodian of 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 Rebate 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.
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 9.11.
INDENTURES SUPPLEMENTAL HERETO
Supplemental Indentures Not Requiring Consent of
Bondholders. The County and the Trustee may with the prior
consent of the Company and with an opinion of Bond Counsel to the
effect that such action will not impair the exclusion of the
interest on the Bonds from gross income for purposes of federal
income taxation, but 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:
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;
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;
to add additional covenants of the County, or to
surrender any right or power herein conferred upon the County;
to subject to this Indenture additional revenues,
properties or collateral; and
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.
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 a
majority 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 date of the principal of or the
interest on any Bond issued hereunder, (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 a majority 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
receives a letter or other instrument signed by an authorized
officer of the Company expressing consent.
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.
AMENDMENT OF AGREEMENT
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; provided, however, that
as a condition of such consent, there may be required an opinion
of Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
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 a
majority 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.
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.
MISCELLANEOUS
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 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. 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.
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.
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.
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 Greenville, Mississippi 39180;
if to the Trustee, at Post Office Box 23100, Jackson, Mississippi
39225-3100, Attention: Corporate Trust Administration
Department; and if to the Company at Post Office Box 1640,
Jackson, Mississippi 39205, Attention: Treasurer. 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.
Trustee as Paying Agent and Bond Registrar. The Trustee is
hereby designated and agrees to act as paying agent and as Bond
Registrar for and in respect to the Bonds.
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 redemption 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.
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.
Applicable Provisions of Law. This Indenture shall be
governed by and construed in accordance with the laws of the
State of Mississippi.
Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the
scope or intent of any provisions or Sections of this Indenture.
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, WASHINGTON 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.
WASHINGTON 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 WASHINGTON
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named Jamie R. McGowin
and Margaret P. Tucker, duly identified before me, who
acknowledged that they are President and Clerk, respectively, of
the Board of Supervisors of Washington County, Mississippi, a
County, and that for and on behalf of said County, and as its act
and deed, they executed and sealed the above and foregoing
instrument, after first having been duly authorized by said
County so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
<PAGE>
STATE OF MISSISSIPPI SS.:
COUNTY OF HINDS
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of Deposit Guaranty National Bank, and that for and
on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
Exhibit B-6(a)
WARREN COUNTY, MISSISSIPPI
AND
MISSISSIPPI POWER & LIGHT COMPANY
__________________
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of April 1, 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 1
PREAMBLES 1
ARTICLE I
DEFINITIONS 2
ARTICLE II
Representations
SECTION 2.1. Representations by the County 4
SECTION 2.2. Representations by the Company 5
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
SECTION 3.1. Construction and Equipping of the
Project 6
SECTION 3.2. Agreement to Issue Bonds;
Application of Bond Proceeds 6
SECTION 3.3. Agreement to Redeem Prior Bonds 6
SECTION 3.4. Disbursement of Proceeds of Prior Bonds 7
SECTION 3.5. Special Arbitrage Covenants 7
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement 7
SECTION 4.2. Sale of the Project Confirmed 7
SECTION 4.3. Use of the Project 8
SECTION 4.4. Purchase Price and Other Amounts
Payable 8
SECTION 4.5. Payments Assigned 9
SECTION 4.6. Indemnity Against Claims 9
SECTION 4.7. Maintenance of Project by Company 10
SECTION 4.8. Insurance Required 10
SECTION 4.9. Obligation of the Company Unconditional 10
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability
by the County 11
SECTION 5.2. Inspection of Books 11
SECTION 5.3. Company to Maintain its Corporate
Existence; Conditions Under Which
Exceptions Permitted 11
SECTION 5.4. Further Assurances and Corrective
Instruments 12
SECTION 5.5. County Representative 12
SECTION 5.6. Company Representative 12
SECTION 5.7. County's and Trustee's Access
to Project 12
SECTION 5.8. Non-Arbitrage Covenant 13
SECTION 5.9. Tax Exempt Status of Bonds 13
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease 13
SECTION 6.2. Redemption of Bonds 14
SECTION 6.3. Assignment and Pledge of Rights under the
Agreement 14
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined 14
SECTION 7.2. Remedies on Default 16
SECTION 7.3. No Remedy Exclusive 16
SECTION 7.4. Agreement to Pay Attorneys' Fees and
Expenses 17
SECTION 7.5. No Additional Waiver Implied by One
Waiver 17
SECTION 7.6. Remedial Rights Assigned to Trustee 17
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options 17
SECTION 8.2. Notice of Prepayment 19
SECTION 8.3. Relative Position of this Article and
Indenture 19
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices 19
SECTION 9.2. Binding Effect 20
SECTION 9.3. Severability 20
SECTION 9.4. Amounts Remaining in the Bond Fund 20
SECTION 9.5. Amendments, Changes and Modifications 20
SECTION 9.6. Execution in Counterparts 20
SECTION 9.7. Recording and Filing 20
SECTION 9.8. Applicable Law 21
SECTION 9.9. No Charge Against County's Credit 21
SECTION 9.10. Captions 21
Signatures and Seals 22
Exhibit A
Acknowledgments
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
April 1, 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"), of which $8,095,000
principal amount is now outstanding, 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; and
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 March 15, 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 to be provided by the Company, will be
sufficient to refund all of the Prior Bonds now 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:
Definitions
"Act" means Sections 31-15-21 through 31-15-27, Mississippi
Code of 1972, as amended.
"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 2.02 of the Indenture.
"Bond Fund" means the fund created in Section 5.02 of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended,
including the regulations promulgated thereunder.
"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 5.3 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.
"Company's Tax Certificate and Covenants" means the
Company's Tax Certificate and Covenants and the Certificate of
Company Official With Respect To Projects Financed With The Prior
Bonds And Certain Other Matters, which is made an exhibit
thereto.
"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 (Bank
of New York, Successor) and Frederick G. Herbst (W. T.
Cunningham, successor), as trustees, securing first mortgage
bonds of the Company heretofore or which may hereafter be issued
thereunder.
"G&R Mortgage" means the Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore and hereafter supplemented
and amended, between the Company and Bank of Montreal Trust
Company and Z. George Klodnicki (Mark F. McLaughlin, successor),
as trustees, securing general and refunding 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 April 1,
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 of the G&R 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.
Representations
Representations by the County. The County represents and
warrants that:
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.
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.
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.
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.
The County has not assigned, and will not, except
as otherwise required by mandatory provisions of law, assign
its interest in this Agreement other than to secure the
Bonds.
Representations by the Company. The Company represents
and warrants that:
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.
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.
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.
The statements of fact and representations made by
the Company in the Company's Tax Certificate and Covenants
in connection with the determination of the tax-exempt
status of the interest on the Bonds are true and correct in
all material respects.
(e) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Agreement which
require said approval, and no consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
(f) The Company has good and marketable title to
the Project, free and clear of all claims, liens and
encumbrances other than Permitted Encumbrances.
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
Construction and Equipping of the Project. The
County and the Company agree that the Project has been
acquired, constructed, installed and equipped.
Agreement to Issue Bonds; Application of Bond
Proceeds. In order to provide funds for the payment of the
cost of refunding the $8,095,000 principal amount of Prior
Bonds presently outstanding, the County will issue and sell
the Bonds as and when requested by the Company, and shall
deliver the proceeds thereof as follows:
(a) To the Trustee for deposit in the Bond Fund,
a sum equal to the accrued interest, if any, paid by the
original purchasers of the Bonds; and
(b) To the trustee for the Prior Bonds, the balance of
such proceeds.
Agreement to Redeem Prior Bonds. The Company agrees to
pay to the trustee for the Prior Bonds, in funds available to the
Trustee on May 12, 1994, the day immediately preceding the
redemption date of the Prior Bonds, for deposit into the bond
fund created under the Prior Indenture securing the Prior Bonds
and in accordance with the terms of the Prior Indenture, any
amount necessary to pay the principal of, redemption premium and
accrued interest due on the Prior Bonds, to the extent that the
amount delivered by the County pursuant to Section 3.2(b) hereof
is insufficient for such purpose. Unless and until the deposit
required by the preceding sentence of this Section 3.3 shall have
been timely made, all covenants, terms, conditions and
representations of the Company contained in the Prior Agreement,
including but not limited to Sections 4.4 and 4.7, shall remain
in full force and effect as against the Company, notwithstanding
the entering into of this Agreement.
Disbursement of Proceeds of Prior Bonds. The Company
represents and certifies that all proceeds of the Prior Bonds
have been disbursed as provided in the Prior Agreement.
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 timely on behalf of the County Rebatable Arbitrage
(as defined in the Company's Tax Certificate and Covenants dated
and delivered on the date of issuance of the Bonds) to the United
States Government in accordance with the provisions of the Tax
Certificate in order to maintain continuous compliance with
Section 148 of the Code.
Term of Agreement; Sale of the Project;
Provisions for Payment
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.
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.
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.
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 shall not be obligated to make any further
purchase price 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).
The Company will also pay when due and payable (i) all
reasonable fees, expenses and charges of the Trustee and The
Depository Trust Company, (ii) all reasonable and necessary
expenses incurred by the County with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or Indenture, and (iii) any expenses in connection with
any registration or redemption of the Bonds.
Payments Assigned. It is agreed that all payments to be
made by the Company pursuant to Section 4.4 of this Agreement and
all rights and interest of the County under this Agreement
(except for the County's rights under the last paragraph of
Section 4.4 and under Sections 4.6 and 7.4 hereof and any rights
of the County to receive notices, certificates, requests,
directions and other communications hereunder), are assigned to
the Trustee. The Company assents to such assignment and hereby
agrees that its obligation to make such payments shall be
absolute, irrevocable and unconditional and shall not be subject
to cancellation, termination or abatement, or to any defense or
any right of set-off, counterclaim or recoupment arising out of
any breach under this Agreement, the Indenture or otherwise by
the County or the Trustee or any other party, 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 at the times and in the amounts specified herein,
whether or not the Plant or the Project, or any portion thereof,
shall have been completed or shall have been destroyed by fire or
other casualty, or title thereto, or the use thereof, shall have
been taken by the exercise of the power of eminent domain, and
that there shall be no abatement of or diminution in any such
payments by reason thereof, whether or not the Plant or the
Project shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Plant or the Project, or for any other
reason.
Indemnity Against Claims. The Company will indemnify the
County and the Trustee against claims arising out of ownership
and operation of the Project. The Company will also pay and
discharge and will indemnify and hold harmless the County from
any lien or charge upon payments by the Company to the County
hereunder. 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.
Maintenance of Project by Company. The Company agrees that
at all times during the term of this Agreement it will, so long
as the Plant remains in operation, 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.
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.
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, irrevocable and unconditional, and the
Company's obligation to make payments pursuant to Section 4.4 of
this Agreement shall be further subject to the provisions of
Section 4.5 of this Agreement. 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 as provided in Article VIII,
will not terminate this Agreement for any cause including,
without limiting the generality of the foregoing, 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 nonperformance 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, secure or protect its right of
possession, occupancy and use of the Project, 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.
Special Covenants
No Warranty of Condition 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.
Inspection of Books. The County and the Trustee shall be
permitted, at all reasonable times, to examine the books and
records of the Company with respect to the Bonds.
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, consolidate 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.
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.
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.
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.
County's and Trustee's Access to Project. The County and
the Trustee shall have the right, upon appropriate prior notice
to the Company, to have reasonable access to the Project during
normal business hours for the purpose of making examinations and
inspections of the same; provided, however, that the foregoing
shall not require the Company to permit inspection of any
properties or records to an extent which would require the
Company to reveal any of its proprietary information or trade
secrets.
Non-Arbitrage 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
Code, including any proposed or final regulations thereunder that
may be applicable to the Bonds at the time of such action,
investment or use.
Tax Exempt Status of Bonds. The Company covenants and
agrees that it shall not take or authorize or permit any action
to be taken, and has not taken or authorized or permitted any
action to be taken, which adversely affects the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxes pursuant to Section 103 of the Code. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
No changes have been or will be made in the Project which in
any way adversely affect the exclusion of interest on any of the
Bonds from gross income for purposes of federal income taxation
pursuant to Section 103 of the Code;
No action shall be taken that will cause the Bonds to be
"federally guaranteed" as defined in Section 149(b) of the Code;
and
No portion of the proceeds of the Bonds in excess of 2% of
the proceeds thereof (within the meaning of Section 147(g) of the
Code) will be used to finance costs of issuance of the Bonds.
Assignment, Indemnification, Leasing and
Selling; Redemption
Assignment and Lease. This Agreement may be assigned, and
the Project may be sold or 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, sale 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, sale or leasing, the Company shall
continue to remain primarily liable for payments of the amounts
specified in Section 4.4 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.
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 redemption date specified by the Company;
provided that, the date of any such redemption shall not be less
than forty-five (45) days from the date each such redemption
request is given, unless the County shall agree to a shorter
period.
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.
Events of Default and Remedies
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:
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, which failure shall have
resulted in an "event of default" under Section 8.01(a) or
(b) of the Indenture.
Failure by the Company to pay when due any other
amount required to be paid under this Agreement or to
observe and perform any other 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 (90) days after written notice,
specifying such failure and requesting that it be remedied,
is given to the Company by the County or the Trustee, unless
the County and the Trustee 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 and the
Trustee will not unreasonably withhold their consent to an
extension of such time if corrective action is instituted by
the Company within the applicable period and is being
diligently pursued.
The expiration of a period of sixty (60) days
following the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the
Company under the Federal Bankruptcy Act or any other
applicable Federal or State law of a similar nature, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of or for
the Company or any substantial part of its property, or
ordering the winding up or liquidation of its affairs unless
during such period such decree, order or appointment of a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official shall be vacated or
shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect.
(d) The commencement by the Company of a voluntary
case, or the institution by it of proceedings, to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization, arrangement or relief under
the Federal Bankruptcy Act or any other applicable Federal
or State law of a similar nature, or the consent or
acquiescence by it to the filing of any such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any substantial
part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action.
The foregoing provisions of this Section 7.1 are
subject to the limitation that, if by reason of force majeure the
Company is unable in whole or in part to carry out its agreements
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.
Remedies on Default. As provided in Section 7.6 hereof,
whenever any event of default referred to in Section 7.1 hereof
shall have occurred and be continuing, and further upon the
condition that the Bonds shall have become due and payable
pursuant to any provision of the Indenture:
Payments required to be paid pursuant to
Section 4.4 of this Agreement shall, without further action,
become and be immediately due and payable.
The Trustee shall have access to and may 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.
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.
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 may be
deemed expedient.
Agreement to Pay Attorneys' Fees and Expenses. In the event
the Company should default under any of the provisions of this
Agreement and the County 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 fees of such
attorneys and such other expenses so incurred by the County or
the Trustee.
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. In view
of the assignment of the Issuer's rights in and under this
Agreement to the Trustee under the Indenture, the Issuer shall
have no power to waive any default hereunder by the Company
without the consent of the Trustee.
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
VII 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.
Options; Prepayment of Purchase Price
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:
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 April 1, 2004),
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 date 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;
If the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason, the Company may
prepay the entire purchase price and accrued interest
thereon and terminate this Agreement as hereinbefore
provided;
If the Company shall have determined that the
continued operation of the Project is impracticable,
uneconomical or undesirable due to (i) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Project, or other liabilities or burdens with respect
to the Project or the operation thereof, (ii) changes in
technology, in environmental standards or legal requirements
or in the economic availability of materials, supplies,
equipment or labor or (iii) destruction of or damage to all
or part of the Project, the Company may prepay the entire
purchase price and accrued interest thereon and terminate
this Agreement as hereinafter provided;
If all or substantially all of the Project or the
Plant, shall have been condemned or taken by eminent domain,
the Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as
hereinbefore provided;
If the operation of the Project or the Plant shall
have been enjoined or shall have otherwise been prohibited
by an order, decree, rule or regulation of any court or of
any federal, state or local regulatory body, administrative
agency or other governmental body, the Company may prepay
the entire purchase price and accrued interest thereon and
terminate this Agreement as hereinbefore 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 paragraphs (b), (c), (d) and (e)
of this Section 8.1 shall be the sum of (i) an amount of money to
be paid into 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.
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
at least fifteen (15) days before the Trustee is required to give
notice of such prepayment which notice 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
make arrangements satisfactory to the Trustee for the giving of
the required notice of redemption.
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.
Miscellaneous
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 P. O. Box 1640, Jackson, Mississippi
39215-1640; and if to the Trustee, at Post Office Box 23100,
Jackson, Mississippi 39225-3100, Attention: Corporate Trust
Department. 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.
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.
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.
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.
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 with the prior written consent of the Trustee (which shall
not be unreasonably withheld) and in accordance with the
Indenture.
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.
Recording and Filing. The Company shall 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 receipts, revenues and other
amounts derived under this Agreement with respect to the Project,
including, without limitation, the filing of all financing and
continuation statements that may be required under the
Mississippi Uniform Commercial Code.
Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Mississippi.
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.
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.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
<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 to
Amended and Restated Installment Sale Agreement
Between Warren County, Mississippi
and Mississippi Power & Light Company
DESCRIPTION OF PROJECT
GAS RECIRCULATION FAN 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 control 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
brakers.
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 l 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 sand 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
The foregoing facilities comprising the Project are situated
on real property owned by the Company and located at the
Company's Baxter Wilson Steam Electric Generating Station plant
site on a tract of land situated in Sections 7, 8 and 18,
Township 15 North, Range 3 East, Warren County, Mississippi.
<PAGE>
STATE OF MISSISSIPPI SS.:
COUNTY OF WARREN
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named Richard George and
Oren D. Bailess, duly identified before me, who acknowledged that
they are President and Clerk, respectively, of the Board of
Supervisors of Warren County, Mississippi, a County, and that for
and on behalf of said County, and as its act and deed, they
executed and sealed the above and foregoing instrument, after
first having been duly authorized by said County so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
<PAGE>
STATE OF LOUISIANA SS.:
PARISH OF _____________
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this ____ day of April,
1994, within my jurisdiction, the within named
______________________________ and _____________________________,
duly identified before me, who acknowledged that they are
______________________________ and _____________________________,
respectively, of Mississippi Power & Light Company, and that for
and on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
Exhibit B-6(b)
WASHINGTON COUNTY, MISSISSIPPI
AND
MISSISSIPPI POWER & LIGHT COMPANY
__________________
AMENDED AND RESTATED
INSTALLMENT SALE AGREEMENT
__________________
Dated as of April 1, 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 1
PREAMBLES 1
ARTICLE I
DEFINITIONS 2
ARTICLE II
Representations
SECTION 2.1. Representations by the County 4
SECTION 2.2. Representations by the Company 5
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
SECTION 3.1. Construction and Equipping of the
Project 6
SECTION 3.2. Agreement to Issue Bonds;
Application of Bond Proceeds 6
SECTION 3.3. Agreement to Redeem Prior Bonds 6
SECTION 3.4. Disbursement of Proceeds of Prior Bonds 7
SECTION 3.5. Special Arbitrage Covenants 7
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement 7
SECTION 4.2. Sale of the Project Confirmed 7
SECTION 4.3. Use of the Project 8
SECTION 4.4. Purchase Price and Other Amounts
Payable 8
SECTION 4.5. Payments Assigned 9
SECTION 4.6. Indemnity Against Claims 9
SECTION 4.7. Maintenance of Project by Company 10
SECTION 4.8. Insurance Required 10
SECTION 4.9. Obligation of the Company Unconditional 10
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability
by the County 11
SECTION 5.2. Inspection of Books 11
SECTION 5.3. Company to Maintain its Corporate
Existence; Conditions Under Which
Exceptions Permitted 11
SECTION 5.4. Further Assurances and Corrective
Instruments 12
SECTION 5.5. County Representative 12
SECTION 5.6. Company Representative 12
SECTION 5.7. County's and Trustee's Access
to Project 12
SECTION 5.8. Non-Arbitrage Covenant 13
SECTION 5.9. Tax Exempt Status of Bonds 13
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease 13
SECTION 6.2. Redemption of Bonds 14
SECTION 6.3. Assignment and Pledge of Rights under the
Agreement 14
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined 14
SECTION 7.2. Remedies on Default 16
SECTION 7.3. No Remedy Exclusive 16
SECTION 7.4. Agreement to Pay Attorneys' Fees and
Expenses 17
SECTION 7.5. No Additional Waiver Implied by One
Waiver 17
SECTION 7.6. Remedial Rights Assigned to Trustee 17
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options 17
SECTION 8.2. Notice of Prepayment 19
SECTION 8.3. Relative Position of this Article and
Indenture 19
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices 19
SECTION 9.2. Binding Effect 20
SECTION 9.3. Severability 20
SECTION 9.4. Amounts Remaining in the Bond Fund 20
SECTION 9.5. Amendments, Changes and Modifications 20
SECTION 9.6. Execution in Counterparts 20
SECTION 9.7. Recording and Filing 20
SECTION 9.8. Applicable Law 21
SECTION 9.9. No Charge Against County's Credit 21
SECTION 9.10. Captions 21
Signatures and Seals 22
Exhibit A
Acknowledgments
<PAGE>
THIS AMENDED AND RESTATED INSTALLMENT SALE AGREEMENT
(hereinafter called the "Agreement") made and entered into as of
April 1, 1994, by and between Washington 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
July 31, 1974, issued $8,400,000 principal amount of its
Pollution Control Revenue Bonds, Series A-I (Mississippi Power &
Light Company Project) (the "Prior Bonds"), of which $7,935,000
principal amount is now outstanding, pursuant to a Trust
Indenture dated as of June 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
Gerald Andrus Steam Electric Station (the "Plant") of the
Company, located on Mail Route 4, 200 MP&L Road, Greenville,
Mississippi, within Washington 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
June 1, 1974 (the "Prior Agreement"); the Company is now the
owner and operator of the Plant and the Project; and
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 March 15, 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 $7,935,000 (the "Bonds") for
the purpose of providing funds, which, together with other funds
available therefor to be provided by the Company, will be
sufficient to refund all of the Prior Bonds now 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:
Definitions
"Act" means Sections 31-15-21 through 31-15-27, Mississippi
Code of 1972, as amended.
"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 2.02 of the Indenture.
"Bond Fund" means the fund created in Section 5.02 of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended,
including the regulations promulgated thereunder.
"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 5.3 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.
"Company's Tax Certificate and Covenants" means the
Company's Tax Certificate and Covenants and the Certificate of
Company Official With Respect To Projects Financed With The Prior
Bonds And Certain Other Matters, which is made an exhibit
thereto.
"County" means Washington 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 (Bank
of New York, Successor) and Frederick G. Herbst (W. T.
Cunningham, successor), as trustees, securing first mortgage
bonds of the Company heretofore or which may hereafter be issued
thereunder.
"G&R Mortgage" means the Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore and hereafter supplemented
and amended, between the Company and Bank of Montreal Trust
Company and Z. George Klodnicki (Mark F. McLaughlin, successor),
as trustees, securing general and refunding 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 April 1,
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 of the G&R Mortgage and excepted encumbrances as
therein defined.
"Plant" means the Company's Gerald Andrus 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.
Representations
Representations by the County. The County represents and
warrants that:
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.
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.
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.
The County has authorized the issuance of not
exceeding $7,935,000 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.
The County has not assigned, and will not, except
as otherwise required by mandatory provisions of law, assign
its interest in this Agreement other than to secure the
Bonds.
Representations by the Company. The Company represents
and warrants that:
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.
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.
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.
The statements of fact and representations made by
the Company in the Company's Tax Certificate and Covenants
in connection with the determination of the tax-exempt
status of the interest on the Bonds are true and correct in
all material respects.
(e) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Agreement which
require said approval, and no consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
(f) The Company has good and marketable title to
the Project, free and clear of all claims, liens and
encumbrances other than Permitted Encumbrances.
Construction and Equipping of the Project;
Issuance of Bonds; Redemption of Prior Bonds
Construction and Equipping of the Project. The
County and the Company agree that the Project has been
acquired, constructed, installed and equipped.
Agreement to Issue Bonds; Application of Bond
Proceeds. In order to provide funds for the payment of the
cost of refunding the $7,935,000 principal amount of Prior
Bonds presently outstanding, the County will issue and sell
the Bonds as and when requested by the Company, and shall
deliver the proceeds thereof as follows:
(a) To the Trustee for deposit in the Bond Fund,
a sum equal to the accrued interest, if any, paid by the
original purchasers of the Bonds; and
(b) To the trustee for the Prior Bonds, the balance of
such proceeds.
Agreement to Redeem Prior Bonds. The Company agrees to
pay to the trustee for the Prior Bonds, in funds available to the
Trustee on May 12, 1994, the day immediately preceding the
redemption date of the Prior Bonds, for deposit into the bond
fund created under the Prior Indenture securing the Prior Bonds
and in accordance with the terms of the Prior Indenture, any
amount necessary to pay the principal of, redemption premium and
accrued interest due on the Prior Bonds, to the extent that the
amount delivered by the County pursuant to Section 3.2(b) hereof
is insufficient for such purpose. Unless and until the deposit
required by the preceding sentence of this Section 3.3 shall have
been timely made, all covenants, terms, conditions and
representations of the Company contained in the Prior Agreement,
including but not limited to Sections 4.4 and 4.7, shall remain
in full force and effect as against the Company, notwithstanding
the entering into of this Agreement.
Disbursement of Proceeds of Prior Bonds. The Company
represents and certifies that all proceeds of the Prior Bonds
have been disbursed as provided in the Prior Agreement.
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 timely on behalf of the County Rebatable Arbitrage
(as defined in the Company's Tax Certificate and Covenants dated
and delivered on the date of issuance of the Bonds) to the United
States Government in accordance with the provisions of the Tax
Certificate in order to maintain continuous compliance with
Section 148 of the Code.
Term of Agreement; Sale of the Project;
Provisions for Payment
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.
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.
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.
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 shall not be obligated to make any further
purchase price 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).
The Company will also pay when due and payable (i) all
reasonable fees, expenses and charges of the Trustee and The
Depository Trust Company, (ii) all reasonable and necessary
expenses incurred by the County with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or Indenture, and (iii) any expenses in connection with
any registration or redemption of the Bonds.
Payments Assigned. It is agreed that all payments to be
made by the Company pursuant to Section 4.4 of this Agreement and
all rights and interest of the County under this Agreement
(except for the County's rights under the last paragraph of
Section 4.4 and under Sections 4.6 and 7.4 hereof and any rights
of the County to receive notices, certificates, requests,
directions and other communications hereunder), are assigned to
the Trustee. The Company assents to such assignment and hereby
agrees that its obligation to make such payments shall be
absolute, irrevocable and unconditional and shall not be subject
to cancellation, termination or abatement, or to any defense or
any right of set-off, counterclaim or recoupment arising out of
any breach under this Agreement, the Indenture or otherwise by
the County or the Trustee or any other party, 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 at the times and in the amounts specified herein,
whether or not the Plant or the Project, or any portion thereof,
shall have been completed or shall have been destroyed by fire or
other casualty, or title thereto, or the use thereof, shall have
been taken by the exercise of the power of eminent domain, and
that there shall be no abatement of or diminution in any such
payments by reason thereof, whether or not the Plant or the
Project shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Plant or the Project, or for any other
reason.
Indemnity Against Claims. The Company will indemnify the
County and the Trustee against claims arising out of ownership
and operation of the Project. The Company will also pay and
discharge and will indemnify and hold harmless the County from
any lien or charge upon payments by the Company to the County
hereunder. 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.
Maintenance of Project by Company. The Company agrees that
at all times during the term of this Agreement it will, so long
as the Plant remains in operation, 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.
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.
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, irrevocable and unconditional, and the
Company's obligation to make payments pursuant to Section 4.4 of
this Agreement shall be further subject to the provisions of
Section 4.5 of this Agreement. 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 as provided in Article VIII,
will not terminate this Agreement for any cause including,
without limiting the generality of the foregoing, 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 nonperformance 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, secure or protect its right of
possession, occupancy and use of the Project, 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.
Special Covenants
No Warranty of Condition 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.
Inspection of Books. The County and the Trustee shall be
permitted, at all reasonable times, to examine the books and
records of the Company with respect to the Bonds.
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, consolidate 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.
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.
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.
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.
County's and Trustee's Access to Project. The County and
the Trustee shall have the right, upon appropriate prior notice
to the Company, to have reasonable access to the Project during
normal business hours for the purpose of making examinations and
inspections of the same; provided, however, that the foregoing
shall not require the Company to permit inspection of any
properties or records to an extent which would require the
Company to reveal any of its proprietary information or trade
secrets.
Non-Arbitrage 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
Code, including any proposed or final regulations thereunder that
may be applicable to the Bonds at the time of such action,
investment or use.
Tax Exempt Status of Bonds. The Company covenants and
agrees that it shall not take or authorize or permit any action
to be taken, and has not taken or authorized or permitted any
action to be taken, which adversely affects the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxes pursuant to Section 103 of the Code. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
No changes have been or will be made in the Project which in
any way adversely affect the exclusion of interest on any of the
Bonds from gross income for purposes of federal income taxation
pursuant to Section 103 of the Code;
No action shall be taken that will cause the Bonds to be
"federally guaranteed" as defined in Section 149(b) of the Code;
and
No portion of the proceeds of the Bonds in excess of 2% of
the proceeds thereof (within the meaning of Section 147(g) of the
Code) will be used to finance costs of issuance of the Bonds.
Assignment, Indemnification, Leasing and
Selling; Redemption
Assignment and Lease. This Agreement may be assigned, and
the Project may be sold or 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, sale 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, sale or leasing, the Company shall
continue to remain primarily liable for payments of the amounts
specified in Section 4.4 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.
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 redemption date specified by the Company;
provided that, the date of any such redemption shall not be less
than forty-five (45) days from the date each such redemption
request is given, unless the County shall agree to a shorter
period.
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.
Events of Default and Remedies
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:
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, which failure shall have
resulted in an "event of default" under Section 8.01(a) or
(b) of the Indenture.
Failure by the Company to pay when due any other
amount required to be paid under this Agreement or to
observe and perform any other 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 (90) days after written notice,
specifying such failure and requesting that it be remedied,
is given to the Company by the County or the Trustee, unless
the County and the Trustee 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 and the
Trustee will not unreasonably withhold their consent to an
extension of such time if corrective action is instituted by
the Company within the applicable period and is being
diligently pursued.
The expiration of a period of sixty (60) days
following the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the
Company under the Federal Bankruptcy Act or any other
applicable Federal or State law of a similar nature, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of or for
the Company or any substantial part of its property, or
ordering the winding up or liquidation of its affairs unless
during such period such decree, order or appointment of a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official shall be vacated or
shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect.
(d) The commencement by the Company of a voluntary
case, or the institution by it of proceedings, to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization, arrangement or relief under
the Federal Bankruptcy Act or any other applicable Federal
or State law of a similar nature, or the consent or
acquiescence by it to the filing of any such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any substantial
part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action.
The foregoing provisions of this Section 7.1 are
subject to the limitation that, if by reason of force majeure the
Company is unable in whole or in part to carry out its agreements
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.
Remedies on Default. As provided in Section 7.6 hereof,
whenever any event of default referred to in Section 7.1 hereof
shall have occurred and be continuing, and further upon the
condition that the Bonds shall have become due and payable
pursuant to any provision of the Indenture:
Payments required to be paid pursuant to
Section 4.4 of this Agreement shall, without further action,
become and be immediately due and payable.
The Trustee shall have access to and may 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.
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.
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 may be
deemed expedient.
Agreement to Pay Attorneys' Fees and Expenses. In the event
the Company should default under any of the provisions of this
Agreement and the County 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 fees of such
attorneys and such other expenses so incurred by the County or
the Trustee.
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. In view
of the assignment of the Issuer's rights in and under this
Agreement to the Trustee under the Indenture, the Issuer shall
have no power to waive any default hereunder by the Company
without the consent of the Trustee.
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
VII 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.
Options; Prepayment of Purchase Price
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:
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 April 1, 2004),
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 date 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;
If the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason, the Company may
prepay the entire purchase price and accrued interest
thereon and terminate this Agreement as hereinbefore
provided;
If the Company shall have determined that the
continued operation of the Project is impracticable,
uneconomical or undesirable due to (i) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Project, or other liabilities or burdens with respect
to the Project or the operation thereof, (ii) changes in
technology, in environmental standards or legal requirements
or in the economic availability of materials, supplies,
equipment or labor or (iii) destruction of or damage to all
or part of the Project, the Company may prepay the entire
purchase price and accrued interest thereon and terminate
this Agreement as hereinafter provided;
If all or substantially all of the Project or the
Plant, shall have been condemned or taken by eminent domain,
the Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as
hereinbefore provided;
If the operation of the Project or the Plant shall
have been enjoined or shall have otherwise been prohibited
by an order, decree, rule or regulation of any court or of
any federal, state or local regulatory body, administrative
agency or other governmental body, the Company may prepay
the entire purchase price and accrued interest thereon and
terminate this Agreement as hereinbefore 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 paragraphs (b), (c), (d) and (e)
of this Section 8.1 shall be the sum of (i) an amount of money to
be paid into 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.
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
at least fifteen (15) days before the Trustee is required to give
notice of such prepayment which notice 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
make arrangements satisfactory to the Trustee for the giving of
the required notice of redemption.
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.
Miscellaneous
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 P. O. Box 1640, Jackson, Mississippi
39215-1640; and if to the Trustee, at Post Office Box 23100,
Jackson, Mississippi 39225-3100, Attention: Corporate Trust
Department. 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.
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.
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.
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.
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 with the prior written consent of the Trustee (which shall
not be unreasonably withheld) and in accordance with the
Indenture.
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.
Recording and Filing. The Company shall 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 receipts, revenues and other
amounts derived under this Agreement with respect to the Project,
including, without limitation, the filing of all financing and
continuation statements that may be required under the
Mississippi Uniform Commercial Code.
Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Mississippi.
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.
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.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
<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.
WASHINGTON 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 to
Amended and Restated Installment Sale Agreement
Between Washington County, Mississippi
and Mississippi Power & Light Company
DESCRIPTION OF PROJECT
GAS RECIRCULATION FAN SYSTEMS
1. Two nominal half-capacity, 2 stage centrifugal fans, each
rated for 579,000 CFM gas flow at 23.7 in. water gage static
pressure and 600F temperature.
2. Electric motor drive for each fan; rated at 4,500 h.p.
Motors are horizontal, drip proof, squirrel cage induction type,
720 rpm, 13.8 kv, 3 phase, 60 Hz.
3. Inlet and outlet gas flues complete with expansion joints,
hangers, support rods, access doors, hoppers, and drains where
required.
4. Insulation for fans and flues based on limiting temperature
rise to 50F above a surrounding ambient air temperature of 80F
with a surface air velocity of 50 FPM.
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 13.8 kv switchgear
with two 2100 ampere, metal clad, drawout type, air circuit
brakers.
8. Electrically operated control dampers in inlet and outlet
flues on each fan. Damper controls incorporated in overall
boiler control and safety schemes as required.
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 sand 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 basin 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 24" belt type skimmers capable of
picking up oily waste at a rate of 1 gpm.
SEWAGE TREATMENT PLANT
1. Smith & Lovelace package treatment plant, model: CY Oxygest.
2. Automatic comminutor with 1/4" slots and driven by 1/4"
h.p., 3 phase, 60 cycle, 460 volt electric motor. Cutting teeth
of comminutor are stainless steel with tungsten carbide tips.
3. 1/4" steel sludge storage tank (116 cubic feet capacity),
includes air diffuser assembly capable of providing 10 CFM air
flow through each diffuser.
4. Steel chlorine contact tank (3'2" dia., 1/4" thick, 5' high)
with a capacity of 180 gallons.
5. Chlorinator, gas v-notch type, series 91-100 by Wallace &
Tiernan.
CIRCULATING WATER DISCHARGE PIPE
1. Pipe 8 feet in diameter extending 930 feet into the river.
Pipe is .710" thick and ribbed at 39" spacing.
2. Six, 20" steel piling cribs with legs penetrating 30' into
the river bed - used to anchor discharge pipe to the river bed.
3. Steel discharge box with a slot-jet design for better heated
water dispersion.
4. Two feet of rip-rap covering the entire length of the pipe
from the concrete lower discharge structure at the river bank to
the end of the pipe at the discharge box.
OIL RECOVERY SYSTEM
1. Floating/Submerging oil fence - 600 feet in length. The
fence moored and anchored at bottom of river and operated by air
solenoid valves to automatically release oil fence boom in case
of oil spill.
2. Skimmer boat.
A. Boat 16' in length with 8 foot Y-shaped collectors.
B. Collection trough attached to boat.
C. 150 foot, 2 inch floating hose connecting collection
trough to skimmer pump.
D. Skimmer pump (700 gpm) - pumps oily waste water to
water treatment plant.
3. 590 foot permanent floating fence across the slack water
slip (Bridgestone model 400H).
OTHER RELATED POLLUTION CONTROL FACILITIES including that portion
of a 497' chimney not financed with the proceeds of the
Washington County Pollution Control Revenue Bonds, Series A-II
(Mississippi Power & Light Company Project), dated June 1, 1974.
The foregoing facilities comprising the Project are situated
on real property owned by the Company and located at the
Company's Gerald Andrus Steam Electric Generating Station plant
site on a tract of land situated in Section 1, Township 17 North,
Range 9 West, Washington County, Mississippi.
<PAGE>
STATE OF MISSISSIPPI SS.:
COUNTY OF WASHINGTON
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of April,
1994, within my jurisdiction, the within named Jamie R. McGowin
and Margaret P. Tucker, duly identified before me, who
acknowledged that they are President and Clerk, respectively, of
the Board of Supervisors of Washington County, Mississippi, a
County, and that for and on behalf of said County, and as its act
and deed, they executed and sealed the above and foregoing
instrument, after first having been duly authorized by said
County so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
<PAGE>
STATE OF LOUISIANA SS.:
PARISH OF _____________
Personally appeared before me, the undersigned authority in
and for the said parish and state, on this ____ day of April,
1994, within my jurisdiction, the within named
______________________________ and _____________________________,
duly identified before me, who acknowledged that they are
______________________________ and _____________________________,
respectively, of Mississippi Power & Light Company, and that for
and on behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
Notary Public
My Commission Expires:
_____________________
(Affix Official Seal)
Exhibit F-1(n)
[Letterhead of Wise Carter Child & Caraway]
April 20, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (A) 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 at the Company's generating units pursuant to one or
more Installment Sale Agreement(s) and/or supplements thereto,
and the related issuance and sale by one or more governmental
authorities of one or more series of tax-exempt bonds ("Tax-
Exempt Bonds"), (B) the Securities and Exchange Commission's
Supplemental Order, dated March 10, 1994, granting and permitting
to become effective the Application-Declaration, as amended, with
respect to the foregoing matters, and (C) the subsequent
consummation, on April 20, 1994, of the entry by the Company into
separate Amended and Restated Installment Sale Agreements with
Warren County, Mississippi, and Washington County, Mississippi
(the "Counties") and the related refinancing of outstanding
pollution control revenue bonds through the issuance by each of
the Counties of a new series of its Tax-Exempt Bonds (the
"Transactions"). In connection therewith, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) The Transactions have been consummated in
accordance with the Application-Declaration, as amended, and
the Supplemental Order of the Securities and Exchange
Commission with respect thereto.
(3) All state laws that relate or are applicable to
the participation by the Company in the Transactions (other
than so-called "blue-sky" or similar laws, upon which we do
not pass herein) have been complied with.
(4) The consummation of the Transactions by the
Company has not violated 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 Certificate pursuant to Rule 24.
Very truly yours,
WISE CARTER CHILD & CARAWAY,
Professional Association
By: /s/ Betty Toon Collins
Betty Toon Collins
Exhibit F-2(n)
[Letterhead of Reid & Priest]
April 20, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (A) 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 pursuant to one or more Installment Sale Agreement(s)
and/or supplements thereto, and the related issuance and sale by
one or more governmental authorities of one or more series of tax-
exempt bonds ("Tax-Exempt Bonds"), (B) the Securities and
Exchange Commission's Supplemental Order, dated March 10, 1994,
granting and permitting to become effective the Application-
Declaration, as amended, with respect to the foregoing matters,
and (C) the subsequent consummation, on April 20, 1994, of the
entry by the Company into separate Amended and Restated
Installment Sale Agreements with Warren County, Mississippi and
Washington County, Mississippi (the "Counties"), and the related
refinancing of outstanding pollution control revenue bonds
through the issuance by each of the Counties of a new series of
its Tax-Exempt Bonds (the "Transactions"). In connection
therewith, we advise as follows:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Mississippi.
(2) The Transactions have been consummated in
accordance with the Application-Declaration, as amended, and
the Supplemental Order of the Securities and Exchange
Commission with respect thereto.
(3) All state laws that relate or are applicable to
the participation by the Company in the Transactions (other
than so-called "blue-sky" or similar laws, upon which we do
not pass herein) have been complied with.
(4) The consummation of the Transactions by the
Company has not violated 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 an opinion of even
date herewith of Wise Carter Child & Caraway, Professional
Association, which is to be filed as an exhibit to the
Certificate pursuant to Rule 24.
We hereby consent to the use of this opinion as an
exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest
REID & PRIEST
