UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
- ----------------------------------------X
:
In the Matter of :
: CERTIFICATE PURSUANT
ENTERGY MISSISSIPPI, INC. : TO
: RULE 24
File No. 70-8719 :
:
(Public Utility Holding Company :
Act of 1935) :
- ----------------------------------------X
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 Entergy
Mississippi, Inc. (the "Company") in its Application-Declaration,
as amended, in the above file, have been carried out in
accordance with the terms and conditions of and for the purposes
represented by said Application-Declaration, as amended, and
pursuant to the order of the Securities and Exchange Commission
with respect thereto dated January 30, 1996.
On May 28, 1999, the Company entered into a Refunding
Agreement, dated as of May 1, 1999 (the "Refunding Agreement")
with Independence County, Arkansas (the "County"), pursuant to
which the County issued and sold, by negotiated public offering,
to Morgan Stanley & Co. Incorporated as underwriter, $30,000,000
in aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Entergy Mississippi, Inc. Project) Series 1999
(the "Tax-Exempt Bonds"). On May 28, 1999 in order to secure its
obligations pursuant to the Refunding Agreement, the Company
issued to Chase Bank of Texas, National Association, $32,850,000
in aggregate principal amount of the Company's General and
Refunding Mortgage Bonds, Pollution Control Series A (the
"Collateral Bonds"), issued pursuant to the Fourteenth
Supplemental Indenture to the Company's Mortgage and Deed of
Trust, as supplemented.
Attached hereto and incorporated by reference are:
Exhibit A-3(a) - Execution form of Fourteenth
Supplemental Indenture relating to the
Collateral Bonds.
Exhibit A-5(a) - Execution form of Collateral Bond.
Exhibit B-5(a) - Execution form of the Trust
Indenture between the County and Chase
Bank of Texas, National Association,
Indenture Trustee.
Exhibit B-6(a) - Execution form of the Refunding
Agreement between the Company and the
County.
Exhibit F-2(d) - Post-effective opinion of Thelen
Reid & Priest LLP, counsel for the
Company.
Exhibit F-3(c) - Post-effective opinion of Ann G.
Roy, Esq., Senior Counsel-Corporate and
Securities, Entergy Services, Inc.,
counsel for the Company.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has
caused this certificate to be executed this 8th day of June 1999.
ENTERGY MISSISSIPPI, INC.
By: /s/ Steven C. McNeal
Steven C. McNeal
Vice President and Treasurer
Exhibit A-3(a)
_________________________________________________________________
ENTERGY MISSISSIPPI, INC.
(formerly Mississippi Power & Light Company)
to
BANK OF MONTREAL TRUST COMPANY
and
MARK F. MCLAUGHLIN,
(successor to Z. George Klodnicki)
As Trustees under
Entergy Mississippi, Inc.'s
Mortgage and Deed of Trust, dated as of February 1, 1988
________________________________
FOURTEENTH SUPPLEMENTAL INDENTURE
Providing among other things for
General and Refunding Mortgage Bonds,
Pollution Control Series A
________________
Dated as of May 1, 1999
_________________________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture 5
Section 1.02. Certain Defined Terms 5
Section 1.03. References Are to Fourteenth Supplemental
Indenture 6
Section 1.04. Number and Gender 6
ARTICLE II
THE TWENTIETH SERIES
Section 2.01. Bonds of the Twentieth Series 6
Section 2.02. Transfer and Exchange 8
Section 2.03. Dating of Bonds 8
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent 8
Section 3.02. Further Assurances 8
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts 9
Section 4.02. Effect of Fourteenth Supplemental
Indenture under Louisiana Law 9
Section 4.04. Titles 9
Section 4.05. Counterparts 9
Section 4.06. Governing Law 9
Signatures S-1
Acknowledgments S-3
Exhibit A - Form of Bond of Twentieth Series A-1
<PAGE>
FOURTEENTH SUPPLEMENTAL INDENTURE
_________________________
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of May 1,
1999, between ENTERGY MISSISSIPPI, INC. (formerly Mississippi
Power & Light Company), a corporation of the State of
Mississippi, whose post office address is P.O. Box 1640, Jackson,
Mississippi 39215-1640 (tel. 601-969-2311) (the "Company") and
BANK OF MONTREAL TRUST COMPANY, a corporation of the State of New
York, whose principal office is located at 88 Pine Street, New
York, New York 10005 (tel. 212-701-7653) (hereinafter sometimes
called the "Trustee") and MARK F. MCLAUGHLIN (successor to Z.
George Klodnicki), whose post office address is 44 Norwood
Avenue, Allenhurst, New Jersey 07711 (tel. 212-701-7602)
(hereinafter sometimes called the "Co-Trustee"), as trustees
under the Mortgage and Deed of Trust, dated as of February 1,
1988, executed and delivered by the Company (herein called the
"Original Indenture"; the Original Indenture together with any
and all indentures and instruments supplemental thereto being
herein called the "Indenture");
WHEREAS, the Original Indenture has been duly recorded or
filed as required in the States of Mississippi, Arkansas and
Wyoming; and
WHEREAS, the Company has executed and delivered to the
Trustees (such term and all other defined terms used herein and
not defined herein having the respective definitions to which
reference is made in Article I below) its First Supplemental
Indenture, dated as of February 1, 1988, its Second Supplemental
Indenture, dated as of July 1, 1988, its Third Supplemental
Indenture, dated as of May 1, 1989, its Fourth Supplemental
Indenture, dated as of May 1, 1990, its Fifth Supplemental
Indenture, dated as of November 1, 1992, its Sixth Supplemental
Indenture, dated as of January 1, 1993, its Seventh Supplemental
Indenture, dated as of July 15, 1993, its Eighth Supplemental
Indenture, dated as of November 1, 1993, its Ninth Supplemental
Indenture, dated as of July 1, 1994, its Tenth Supplemental
Indenture, dated as of April 1, 1995, its Eleventh Supplemental
Indenture, dated as of June 1, 1997, its Twelfth Supplemental
Indenture, dated as of April 1, 1998, and its Thirteenth
Supplemental Indenture, dated as of May 1, 1999, each as a
supplement to the Original Indenture, which Supplemental
Indentures have been duly recorded or filed as required in the
States of Mississippi, Arkansas and Wyoming; and
WHEREAS, in addition to property described in the Original
Indenture, as heretofore supplemented, the Company has acquired
certain other property rights and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance
with the provisions of the Indenture, the following series of
bonds:
Series Principal Principal
Amount Issued Amount
Outstanding
14.65% Series due February 1, 1993 $ 55,000,000 None
14.95% Series due February 1, 1995 20,000,000 None
8.40% Collateral Series due December 1, 1992 12,600,000 None
11.11% Series due July 15, 1994 18,000,000 None
11.14% Series due July 15, 1995 10,000,000 None
11.18% Series due July 15, 1996 26,000,000 None
11.20% Series due July 15, 1997 46,000,000 None
9.90% Series due April 1, 1994 30,000,000 None
5.95% Series due October 15, 1995 15,000,000 None
6.95% Series due July 15, 1997 50,000,000 None
8.65% Series due January 15, 2023 125,000,000 $125,000,000
7.70% Series due July 15, 2023 60,000,000 60,000,000
6 5/8% Series due November 1, 2003 65,000,000 65,000,000
8.25% Series due July 1, 2004 25,000,000 25,000,000
8.80% Series due April 1, 2005 80,000,000 None
6 7/8% Series due June 1, 2002 65,000,000 65,000,000
6.45% Series due April 1, 2008 80,000,000 80,000,000
6.20% Series due May 1, 2004 75,000,000 75,000,000
Floating Rate Series due May 3, 2004 50,000,000 50,000,000
; and
WHEREAS, Section 19.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or implicitly reserved to or in any way conferred upon the
Company by any provision of the Indenture, whether such power,
privilege or right is in any way restricted or is unrestricted,
may be in whole or in part waived or surrendered or subjected to
any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may establish the terms and provisions
of any series of bonds by an instrument in writing executed and
acknowledged by the Company in such manner as would be necessary
to entitle a conveyance of real estate to be recorded in all of
the states in which any property at the time subject to the Lien
of the Indenture shall be situated; and
WHEREAS, the Company desires to create a new series of
bonds under the Indenture and to add to its covenants and
agreements contained in the Indenture certain other covenants and
agreements to be observed by it; and
WHEREAS, all things necessary to make this Fourteenth
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issue of said series of bonds, subject to
the terms of the Indenture, has been in all respects duly
authorized;
NOW, THEREFORE, THIS FOURTEENTH SUPPLEMENTAL INDENTURE
WITNESSETH: That the Company, in consideration of the premises
and of Ten Dollars ($10) to it duly paid by the Trustees at or
before the unsealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to further secure
the payment of both the principal of and interest on the bonds
from time to time issued under the Indenture, according to their
tenor and effect and the performance of all provisions of the
Indenture and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, hypothecates,
affects, pledges, sets over and confirms a security interest in
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN and (to
the extent of its legal capacity to hold the same for the
purposes hereof) to BANK OF MONTREAL TRUST COMPANY, as Trustees,
and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all properties
of the Company real, personal and mixed, of any kind or nature
(except as in the Indenture expressly excepted), now owned
(including, but not limited to, that located in the following
counties in the State of Mississippi: Adams, Amite, Attala,
Bolivar, Calhoun, Carroll, Choctaw, Claiborne, Coahoma, Copiah,
Covington, DeSoto, Franklin, Grenada, Hinds, Holmes, Humphreys,
Issaquena, Jefferson, Jefferson Davis, Lawrence, Leake, Leflore,
Lincoln, Madison, Montgomery, Panola, Pike, Quitman, Rankin,
Scott, Sharkey, Simpson, Smith, Sunflower, Tallahatchie, Tate,
Tunica, Walthall, Warren, Washington, Webster, Wilkinson,
Yalobusha and Yazoo; and in Independence County, Arkansas, and
Campbell County, Wyoming) or, subject to the provisions of
Section 15.03 of the Original Indenture, hereafter acquired by
the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever
situated, including (without in anyway limiting or impairing by
the enumeration of the same, the scope and intent of the
foregoing or of any general description contained in the
Indenture) all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and
other rights in or relating to real estate or the occupancy of
the same; all power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs,
reservoir sites, canals, raceways, waterways, dams, dam sites,
aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam,
water and/or other power; all power houses, street lighting
systems, standards and other equipment incidental thereto; all
telephone, radio and television systems, air conditioning systems
and equipment incidental thereto, water wheels, water works,
water systems, steam heat and hot water plants, substations,
electric, gas and water lines, service and supply systems,
bridges, culverts, tracks, ice or refrigeration plants and
equipment, offices, buildings and other structures and the
equipment thereof; all machinery, engines, boilers, dynamos,
turbines, electric, gas and other machines, prime movers,
regulators, meters, transformers, generators (including, but not
limited to, engine driven generators and turbogenerator units),
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and
(except as in the Indenture expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property in the Indenture
described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anyway appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 11.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property, rights and franchises
and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 15.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any in the
Indenture expressly excepted, shall be and are as fully granted
and conveyed by the Indenture and as fully embraced within the
Lien of the Indenture as if such property, rights and franchises
were now owned by the Company and were specifically described by
the Indenture and granted and conveyed by the Indenture.
PROVIDED that the following are not and are not intended
to be now or hereafter granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, hypothecated,
affected, pledged, set over or confirmed hereunder, nor is a
security interest therein hereby granted or intended to be
granted, and the same are hereby expressly excepted from the Lien
and operation of the Indenture, viz: (1) cash, shares of stock,
bonds, notes and other obligations and other securities not in
the Indenture specifically pledged, paid, deposited, delivered or
held under the Indenture or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or part) any
rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands and
chooses in action, and all contracts, leases and operating
agreements not specifically pledged under the Indenture or
covenanted so to be; (4) the last day of the term of any lease or
leasehold which may hereafter become subject to the Lien of the
Indenture; (5) electric energy, gas, water, steam, ice, and other
materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the
ordinary course of its business; (6) any natural gas wells or
natural gas leases or natural gas transportation lines or other
works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system, and any natural gas distribution
system; and (7) the Company's franchise to be a corporation;
provided, however, that the property and rights expressly
excepted from the Lien and operation of the Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
either or both of the Trustees or a receiver or trustee shall
enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XII of the Original
Indenture by reason of the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed or in which a security interest
has been granted by the Company as aforesaid, or intended so to
be (subject, however, to Excepted Encumbrances as defined in
Section 1.06 of the Original Indenture), unto MARK F. MCLAUGHLIN
and (to the extent of its legal capacity to hold the same for the
purposes hereof) unto BANK OF MONTREAL TRUST COMPANY, and their
successors and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts in the
Indenture set forth, for the equal pro rata benefit and security
of all and each of the bonds and coupons issued and to be issued
under the Indenture, or any of them, in accordance with the terms
of the Indenture, without preference, priority or distinction as
to the Lien of any of said bonds and coupons over any others
thereof by reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject to the
provisions in the Indenture set forth in reference to extended,
transferred or pledged coupons and claims for interest; it being
intended that, subject as aforesaid, the Lien and security of all
of said bonds and coupons of all series issued or to be issued
under the Indenture shall take effect from the date of the
initial issuance of bonds under the Indenture, and that the Lien
and security of the Indenture shall take effect from said date as
though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date.
PROVIDED, HOWEVER, these presents are upon the condition
that if the Company, its successors or assigns, shall pay or
cause to be paid, the principal of and interest on said bonds, or
shall provide, as permitted hereby, for the payment thereof by
depositing with the Trustee the entire amount due or to become
due thereon for principal and interest, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by
it, then the Indenture and the estate and rights granted under
the Indenture shall cease, determine and be void, otherwise to be
and remain in full force and effect.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED by the
Company that all the terms, conditions, provisos, covenants and
provisions contained in the Indenture shall affect and apply to
the property hereinbefore described and conveyed and to the
estate, rights, obligations and duties of the Company and the
Trustees and their successor or successors as Trustees in such
trust in the same manner and with the same effect as if the said
property had been owned by the Company at the time of the
execution of the Original Indenture and had been specifically and
at length described in and conveyed to said Trustees by the
Original Indenture as a part of the property therein stated to be
conveyed.
The Company further covenants and agrees to and with the
Trustees and their successor or successors in such trust as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms From the Original Indenture. All
defined terms used in this Fourteenth Supplemental Indenture and
not otherwise defined herein shall have the respective meanings
ascribed to them in the Original Indenture.
Section 1.02. Certain Defined Terms. As used in this
Fourteenth Supplemental Indenture, the following defined terms
shall have the respective meanings specified unless the context
clearly requires otherwise:
The term "County" shall have the meaning specified in
Section 2.01.
The term "Independence Indenture" shall have the meaning
specified in Section 2.01.
The term "Independence Trustee" shall have the meaning
specified in Section 2.01.
The term "1999 Independence Bonds" shall have the meaning
specified in Section 2.01.
The term "Original Indenture" shall have the meaning
specified in the first paragraph hereof.
The term "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
The term "Refunding Agreement" shall have the meaning
specified in Section 2.01.
The term "Twentieth Series" shall have the meaning
specified in Section 2.01.
Section 1.03. References Are to Fourteenth Supplemental
Indenture. Unless the context otherwise requires, all references
herein to "Articles", "Sections" and other subdivisions refer to
the corresponding Articles, Sections and other subdivisions of
this Fourteenth Supplemental Indenture, and the words "herein",
"hereof", "hereby", "hereunder" and words of similar import refer
to this Fourteenth Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision hereof or to
the Original Indenture or any other supplemental indenture
thereto.
Section 1.04. Number and Gender. Unless the context
otherwise requires, defined terms in the singular include the
plural, and in the plural include the singular. The use of a word
of any gender shall include all genders.
ARTICLE II
THE TWENTIETH SERIES
Section 2.01. Bonds of the Twentieth Series. There shall
be a series of bonds designated as the Pollution Control Series A
(herein sometimes referred to as the "Twentieth Series"), which
shall also bear the descriptive title "General and Refunding
Mortgage Bonds" unless subsequent to the issuance of such bonds a
different descriptive title is permitted by Section 2.01 of the
Original Indenture. The form of bonds of the Twentieth Series
shall be substantially in the form of Exhibit A hereto. Bonds of
the Twentieth Series shall mature on July 1, 2022 and shall be
issued only as fully registered bonds in denominations of One
Thousand Dollars and in such other denominations as the officers
of the Company shall determine to issue (such determination to be
evidenced by the execution and delivery thereof); the principal
of and interest, if any, on any overdue principal on each said
bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, in such
coin or currency of the United States of America as at the time
of payment is legal tender for public and private debts. Overdue
principal with respect of the bonds of the Twentieth Series shall
bear interest (before and after judgment) at the rate of one per
centum (1%) per annum.
The Company reserves the right to establish at any time,
by Resolution of the Board of Directors of the Company, a form of
coupon bond, and of appurtenant coupons, for the Twentieth Series
and to provide for exchangeability of such coupon bonds with the
bonds of said Series issued hereunder in fully registered form
and to make all appropriate provisions for such purpose.
(I) The Bonds of the Twentieth Series shall be
initially issued in the aggregate principal amount of $32,850,000
and delivered to, and registered in the name of Chase Bank of
Texas, National Association, (hereinafter the "Independence
Trustee"), the trustee under the Trust Indenture, dated as of May
1, 1999 (hereinafter called the "Independence Indenture"), of
Independence County, Arkansas (hereinafter called the "County")
relating to its Pollution Control Revenue Refunding Bonds
(Entergy Mississippi, Inc. Project) Series 1999 (hereinafter
called the "1999 Independence Bonds"), in order to evidence in
part, prior to the Release Date, as defined in the Refunding
Agreement, the Company's obligation to make certain payments
under the Refunding Agreement dated as of May 1, 1999 between the
County and the Company (the "Refunding Agreement").
The obligation of the Company to make any payment of
principal of the bonds of the Twentieth Series, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Independence Indenture of the
amount of the corresponding payment required to be made by the
County thereunder in respect of the principal of or premium, if
any, or interest on the Independence Bonds. The Trustees may
conclusively presume that the obligation of the Company to pay
the principal of the bonds of the Twentieth Series as the same
shall become due and payable shall have been fully satisfied and
discharged unless and until the Trustee shall have received a
written notice (which may be a facsimile followed by a hard copy)
from the Independence Trustee, signed by its President, a Vice
President or a Trust Officer, stating that the corresponding
payment of principal of or interest on the 1999 Independence
Bonds has become due and payable and has not been fully paid and
specifying the amount of funds required to make such payment.
(II) In the event that any 1999 Independence Bonds
outstanding under the Independence Indenture shall become
immediately due and payable pursuant to Section 10.2 of the
Independence Indenture, upon the occurrence of an Event of
Default under Section 10.1 (a), (b), (e) or (f) of the
Independence Indenture, all bonds of the Twentieth Series, then
Outstanding, shall be redeemed by the Company, on the date such
1999 Independence Bonds shall have become immediately due and
payable, at the principal amount thereof.
In the event that any 1999 Independence Bonds are to be
redeemed pursuant to Section 8.1 (c) of the Independence
Indenture, bonds of the Twentieth Series, in a principal amount
equal to 109.5% of the aggregate principal amount of such 1999
Independence Bonds shall be redeemed by the Company, on the date
fixed for redemption of such 1999 Independence Bonds, at such
principal amount.
The Trustees may conclusively presume that no
redemption of bonds of the Twentieth Series is required pursuant
to this subsection (II) unless and until it shall have received a
written notice (which may be a facsimile followed by a hard copy)
from the Independence Trustee signed by its President, a Vice
President or a Trust Officer, stating that the 1999 Independence
Bonds have become immediately due and payable pursuant to Section
10.2 of the Independence Indenture, upon the occurrence of an
Event of Default under Section 10.1 (a), (b), (e) or (f) of said
Independence Indenture, or that the 1999 Independence Bonds are
to be redeemed pursuant to Section 8.1(c) of the Independence
Indenture and specifying the date fixed for the redemption and
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the Independence Trustee,
as the holder of all the bonds of the Twentieth Series then
Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
2.01 state that such notice is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for
redemption. Notwithstanding the provisions of Section 10.02 of
the Original Indenture, any such notice under such subsections
shall not be conditional.
Section 2.02. Transfer and Exchange.
(a) At the option of the registered owner, any bonds
of the Twentieth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like principal amount of bonds of the same series of other
authorized denominations.
(b) Bonds of the Twentieth Series shall not be
transferable except to any successor trustee under the
Independence Indenture, any such transfer to be made (subject to
the provisions of Section 2.05 of the Original Indenture) at the
office or agency of the Company in the Borough of Manhattan, The
City of New York.
(c) Upon any such exchange or transfer of bonds of the
Twentieth Series, the Company may make a charge therefor
sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 2.05 of the Original
Indenture, but the Company hereby waives any right to make a
charge in addition thereto for any such exchange or transfer of
bonds of the Twentieth Series.
(d) The bonds of the Twentieth Series may bear such
legends as may be necessary to comply with any law or with any
rules or regulations made pursuant thereto or with the rules or
regulations of any stock exchange or to conform to usage with
respect thereto.
Section 2.03. Dating of Bonds. Each bond of the
Twentieth Series shall be dated as of the date of authentication.
ARTICLE III
COVENANTS
Section 3.01. Maintenance of Paying Agent. So long as
any bonds of the Twentieth Series are outstanding, the Company
covenants that the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York where the principal
of and premium, if any, or interest on any overdue principal on
any bonds of such series shall be payable shall also be an office
or agency where any such bonds may be transferred or exchanged
and where notices, presentations or demands to or upon the
Company in respect of such bonds or in respect of the Indenture
may be given or made.
Section 3.02. Further Assurances. From time to time
whenever reasonably requested by the Trustee or the holders of
not less than a majority in aggregate principal amount of the
bonds of the Twentieth Series then outstanding, the Company will
make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and
assurances as may be reasonably necessary or proper to carry out
the intention of or to facilitate the performance of the terms of
the Indenture or to secure the rights and remedies of the holders
of such bonds.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Acceptance of Trusts. The Trustees hereby
accept the trusts herein declared, provided, created or
supplemented and agree to perform the same upon the terms and
conditions herein and in the Original Indenture, as heretofore
supplemented, set forth and upon the following terms and
conditions:
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fourteenth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made
solely by the Company. In general, each and every term and
condition contained in Article XVI of the Original Indenture
shall apply to and form part of this Fourteenth Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fourteenth Supplemental
Indenture.
Section 4.02. Effect of Fourteenth Supplemental Indenture
under Louisiana Law. It is the intention and it is hereby agreed
that, so far as concerns that portion of the Mortgaged and
Pledged Property situated within the State of Louisiana, the
general language of conveyance contained in this Fourteenth
Supplemental Indenture is intended and shall be construed as
words of hypothecation and not of conveyance and that, so far as
the said Louisiana property is concerned, this Fourteenth
Supplemental Indenture shall be considered as an act of mortgage
and pledge under the laws of the State of Louisiana, and the
Trustees herein named are named as mortgagee and pledgee in trust
for the benefit of themselves and of all present and future
holders of the bonds of the Twentieth Series and any coupons
thereto issued hereunder, and are irrevocably appointed special
agents and representatives of the holders of the bonds and
coupons issued hereunder and vested with full power in their
behalf to effect and enforce the mortgage and pledge hereby
constituted for their benefit, or otherwise to act as herein
provided for.
Section 4.03. Titles. The titles of the several Articles
and Sections of this Fourteenth Supplemental Indenture and the
table of contents shall not be deemed to be any part hereof.
Section 4.04. Counterparts. This Fourteenth Supplemental
Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
Section 4.05. Governing Law. The internal laws of the
State of New York shall govern this Fourteenth Supplemental
Indenture and the bonds of the Twentieth Series, except to the
extent that the validity or perfection of the Lien of the
Indenture, or remedies thereunder, are governed by the laws of a
jurisdiction other than the State of New York.
IN WITNESS WHEREOF, ENTERGY MISSISSIPPI, INC. has caused
its corporate name to be hereunto affixed, and this instrument to
be signed and sealed by its Chairman of the Board, Chief
Executive Officer, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and BANK OF MONTREAL
TRUST COMPANY has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of
its Vice Presidents or Assistant Vice Presidents and its
corporate seal to be attested by one of its Assistant Vice
Presidents or Assistant Secretaries, and MARK F. MCLAUGHLIN has
hereunto set his hand and affixed his seal, all as of the day and
year first above written.
ENTERGY MISSISSIPPI, INC.
By:
Steven C. McNeal
Vice President and Treasurer
Attest:
_____________________________
Christopher T. Screen
Assistant Secretary
BANK OF MONTREAL TRUST COMPANY
as Trustee
By:
Peter Morse
Vice President
Attest:
______________________________
Name:
Title:
By: [L.S.]
Mark F. McLaughlin
as Co-Trustee
<PAGE>
STATE OF LOUISIANA ) ss.:
PARISH OF ORLEANS )
Personally appeared before me, the undersigned authority
in and for the aforesaid Parish and State, the within named
Steven C. McNeal, Vice President and Treasurer and Christopher T.
Screen, Assistant Secretary of ENTERGY MISSISSIPPI, INC., who
acknowledged that they signed, attached the corporate seal of the
corporation thereto and delivered the foregoing instrument on the
day and year therein stated, by the authority and as the act and
deed of the corporation.
On the 21st day of May, before me personally came STEVEN
C. MCNEAL, to be known to me, who, being by me duly sworn, did
depose and say that he resides at 8043 Winners Circle,
Mandeville, Louisiana 70448; that he is the Vice President and
Treasurer of ENTERGY MISSISSIPPI, INC., the corporation described
in and which executed the above instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
Given under my hand and seal this 21st day of May 1999.
________________________________________
Denise C. Redmann
Notary Public
Parish of Orleans, State of Louisiana
My Commission is Issued for Life
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority
in and for the aforesaid County and State, the within named Peter
Morse as Vice President, and _________________, as
_____________________ of BANK OF MONTREAL TRUST COMPANY, who
acknowledged that they signed, attached the corporate seal of the
corporation thereto and delivered the foregoing instrument on the
day and year therein stated, by the authority and as the act and
deed of the corporation.
On the 24th day of May 1999, before me personally came
PETER MORSE to me known, who, being by me duly sworn, did depose
and say that he resides at 84-26 115th Street, Richmond Hill, New
York 11418; that he is a Vice President of BANK OF MONTREAL TRUST
COMPANY, the corporation described in and which executed the
above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
Given under my hand and seal this 24th day of May 1999.
__________________________________
Estelle Redding
Notary Public, State of New York
No. 01RE6010831
Qualified in New York County
Commission Expires July 27, 2000
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
Personally appeared before me, the undersigned authority
in and for the aforesaid County and State, the within named MARK
F. MCLAUGHLIN, who acknowledged that he signed, sealed and
delivered the foregoing instrument on the day and year therein
mentioned.
On the 24th day of May, 1999, before me personally came
MARK F. MCLAUGHLIN, to me known to be the person described in and
who acknowledged the foregoing instrument, and acknowledged that
he executed the same.
Given under my hand and seal this 24th day of May 1999.
__________________________________
Estelle Redding
Notary Public, State of New York
No. 01RE6010831
Qualified in New York County
Commission Expires July 27, 2000
<PAGE>
EXHIBIT A
[FORM OF BOND OF TWENTIETH SERIES]
This bond is not transferable except to a successor trustee under
the Trust Indenture, dated as of May 1, 1999 (hereinafter called
the "Independence Indenture"), between Independence County,
Arkansas (hereinafter called the "County") relating to its
Pollution Control Revenue Refunding Bonds (Entergy Mississippi,
Inc. Project) 1999 Series (hereinafter called the "Independence
Bonds") and Chase Bank of Texas, National Association, as
trustee.
GENERAL AND REFUNDING MORTGAGE BOND
Pollution Control Series A
No. R-1
ENTERGY MISSISSIPPI, INC., (formerly Mississippi Power &
Light Company) a corporation duly organized and validly existing
under the laws of the State of Mississippi (hereinafter called
the Company), for value received, hereby promises to pay to Chase
Bank of Texas, National Association or registered assigns, at the
office or agency of the Company in New York, New York, the
principal sum of $_______ on July 1, 2022 in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, without
interest, until the principal of this bond shall have become due
and payable and to pay interest (before and after judgment) on
any overdue principal, at the rate of one per cent (1%) per
annum.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor or successors thereunder, shall have signed
the authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, Pollution Control
Series A (herein called bonds of the Twentieth Series), all bonds
of all series issued under and equally secured by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, called the Mortgage), dated as of February 1, 1988, duly
executed by the Company to Bank of Montreal Trust Company and
Mark F. McLaughlin (successor to Z. George Klodnicki), as
Trustees. Reference is made to the Mortgage for a description of
the mortgaged and pledged property, assets and rights, the nature
and extent of the lien and security, the respective rights,
limitations of rights, covenants, obligations, duties and
immunities thereunder of the Company, the holders of bonds and
the Trustees and the terms and conditions upon which the bonds
are, and are to be, secured, the circumstances under which
additional bonds may be issued and the definition of certain
terms herein used, to all of which, by its acceptance of this
bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the Twentieth Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond (unless
effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and interest on this bond in the manner, at the
respective times, at the rate and in the currency herein
prescribed.
The bonds are issuable as registered bonds without coupons
in the denominations of $1,000.00 or such other denominations as
the officers of the Company shall determine to issue. At the
office or agency to be maintained by the Company in the City of
New York, State of New York, and in the manner and subject to the
provisions of the Mortgage, bonds may be exchanged for a like
aggregate principal amount of bonds of other authorized
denominations, without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. This bond is not
transferable except to any successor trustee under the
Independence Indenture, any such transfer to be made in the
manner prescribed in the Mortgage by the registered owner hereof
in person, or by his duly authorized attorney, at the office or
agency of the Company in New York, New York, upon surrender of
this bond, and upon payment, if the Company shall require it, of
the transfer charges provided for in the Mortgage, and,
thereupon, a new fully registered bond of the same series for a
like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is subject to redemption as provided in the
Mortgage.
The bonds of the Twentieth Series have been issued in
order to evidence in part, prior to the Release Date, the
obligation of the Company to make certain payments under the
Refunding Agreement, dated as of May 1, 1999, between the County
and the Company.
The obligation of the Company to make any payment of the
principal of the bonds of the Twentieth Series, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Independence Indenture of the
amount of the corresponding payment required to be made by the
County thereunder with respect of the principal of or premium, if
any, or interest on the Independence Bonds.
Bank of Montreal Trust Company, the Trustee, and Mark F.
McLaughlin, Co-Trustee, may conclusively presume that the
obligation of the Company to pay the principal of the bonds of
the Twentieth Series as the same shall become due and payable
shall have been fully satisfied and discharged unless and until
the Trustee shall have received a written notice (which may be a
facsimile followed by a hard copy) from the trustee under the
Independence Indenture, signed by its President, a Vice President
or a Trust Officer, stating that the corresponding payment of
principal of or interest on the Independence Bonds has become due
and payable and has not been fully paid and specifying the amount
of funds required to make such payment.
Bank of Montreal Trust Company, Trustee, and Mark F.
McLaughlin, Co-Trustee, may conclusively presume that no
redemption of bonds of the Twentieth Series is required unless
and until it shall have received a written notice (which may be a
facsimile followed by a hard copy) from the trustee under the
Independence Indenture signed by its President, a Vice President
or a Trust Officer, stating that the Independence Bonds have
become immediately due and payable pursuant to Section 10.2 of
the Independence Indenture, upon the occurrence of an Event of
Default under Section 10.1 (a), (b), (e) or (f) of said
Independence Indenture, or that Independence Bonds are to be
redeemed pursuant to Section 8.1(c) of the Independence Indenture
and specifying the date fixed for the redemption and the
principal amount thereof.
No recourse shall be had for the payment of the principal
of, premium, if any, or interest on this bond against any
incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be governed
by and construed in accordance with the laws of the State of New
York.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has caused
this bond to be signed in its corporate name by its Chairman of
the Board, Chief Executive Officer, President or one of its Vice
Presidents by his or her signature or a facsimile thereof, and
its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated:
ENTERGY MISSISSIPPI, INC.
By:
Steven C. McNeal
Title: Vice President and Treasurer
Attest:
__________________________
Title:
<PAGE>
[FORM OF TRUSTEE'S
AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST
COMPANY, as Trustee
By:
Authorized Signature
Exhibit A-5(a)
This bond is not transferable except to a successor trustee under
the Trust Indenture, dated as of May 1, 1999 (hereinafter called
the "Independence Indenture"), between Independence County,
Arkansas (hereinafter called the "County") relating to its
Pollution Control Revenue Refunding Bonds (Entergy Mississippi,
Inc. Project) 1999 Series (hereinafter called the "Independence
Bonds") and Chase Bank of Texas, National Association, as
trustee.
GENERAL AND REFUNDING MORTGAGE BOND
Pollution Control Series A
No. R-1
ENTERGY MISSISSIPPI, INC., (formerly Mississippi Power &
Light Company) a corporation duly organized and validly existing
under the laws of the State of Mississippi (hereinafter called
the Company), for value received, hereby promises to pay to Chase
Bank of Texas, National Association or registered assigns, at the
office or agency of the Company in New York, New York, the
principal sum of $32,850,000 on July 1, 2022 in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts, without
interest, until the principal of this bond shall have become due
and payable and to pay interest (before and after judgment) on
any overdue principal, at the rate of one per cent (1%) per
annum.
This bond shall not become obligatory until Bank of
Montreal Trust Company, the Trustee under the Mortgage, or its
respective successor or successors thereunder, shall have signed
the authentication certificate endorsed hereon.
This bond is one of a series of bonds of the Company
issuable in series and is one of a duly authorized series known
as its General and Refunding Mortgage Bonds, Pollution Control
Series A (herein called bonds of the Twentieth Series), all bonds
of all series issued under and equally secured by a Mortgage and
Deed of Trust (herein, together with any indenture supplemental
thereto, called the Mortgage), dated as of February 1, 1988, duly
executed by the Company to Bank of Montreal Trust Company and
Mark F. McLaughlin (successor to Z. George Klodnicki), as
Trustees. Reference is made to the Mortgage for a description of
the mortgaged and pledged property, assets and rights, the nature
and extent of the lien and security, the respective rights,
limitations of rights, covenants, obligations, duties and
immunities thereunder of the Company, the holders of bonds and
the Trustees and the terms and conditions upon which the bonds
are, and are to be, secured, the circumstances under which
additional bonds may be issued and the definition of certain
terms herein used, to all of which, by its acceptance of this
bond, the holder of this bond agrees.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions,
in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Default as in the Mortgage provided. The
Mortgage provides that in certain circumstances and upon certain
conditions such a declaration and its consequences or certain
past defaults and the consequences thereof may be waived by such
affirmative vote of holders of bonds as is specified in the
Mortgage.
The Mortgage contains provisions permitting the Company
and the Trustee to execute supplemental indentures amending the
Mortgage for certain specified purposes without the consent of
holders of bonds. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights
and obligations of the Company and/or the rights of the holders
of the bonds of the Twentieth Series and/or the terms and
provisions of the Mortgage may be modified or altered by such
affirmative vote or votes of the holders of bonds then
Outstanding as are specified in the Mortgage.
Any consent or waiver by the holder of this bond (unless
effectively revoked as provided in the Mortgage) shall be
conclusive and binding upon such holder and upon all future
holders of this bond and of any bonds issued in exchange or
substitution herefor, irrespective of whether or not any notation
of such consent or waiver is made upon this bond or such other
bond.
No reference herein to the Mortgage and no provision of
this bond or of the Mortgage shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and interest on this bond in the manner, at the
respective times, at the rate and in the currency herein
prescribed.
The bonds are issuable as registered bonds without coupons
in the denominations of $1,000.00 or such other denominations as
the officers of the Company shall determine to issue. At the
office or agency to be maintained by the Company in the City of
New York, State of New York, and in the manner and subject to the
provisions of the Mortgage, bonds may be exchanged for a like
aggregate principal amount of bonds of other authorized
denominations, without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other
governmental charge incident thereto. This bond is not
transferable except to any successor trustee under the
Independence Indenture, any such transfer to be made in the
manner prescribed in the Mortgage by the registered owner hereof
in person, or by his duly authorized attorney, at the office or
agency of the Company in New York, New York, upon surrender of
this bond, and upon payment, if the Company shall require it, of
the transfer charges provided for in the Mortgage, and,
thereupon, a new fully registered bond of the same series for a
like principal amount will be issued to the transferee in
exchange hereof as provided in the Mortgage. The Company and the
Trustees may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the
Company nor the Trustees shall be affected by any notice to the
contrary.
This bond is subject to redemption as provided in the
Mortgage.
The bonds of the Twentieth Series have been issued in
order to evidence in part, prior to the Release Date, the
obligation of the Company to make certain payments under the
Refunding Agreement, dated as of May 1, 1999, between the County
and the Company.
The obligation of the Company to make any payment of the
principal of the bonds of the Twentieth Series, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Independence Indenture of the
amount of the corresponding payment required to be made by the
County thereunder with respect of the principal of or premium, if
any, or interest on the Independence Bonds.
Bank of Montreal Trust Company, the Trustee, and Mark F.
McLaughlin, Co-Trustee, may conclusively presume that the
obligation of the Company to pay the principal of the bonds of
the Twentieth Series as the same shall become due and payable
shall have been fully satisfied and discharged unless and until
the Trustee shall have received a written notice (which may be a
facsimile followed by a hard copy) from the trustee under the
Independence Indenture, signed by its President, a Vice President
or a Trust Officer, stating that the corresponding payment of
principal of or interest on the Independence Bonds has become due
and payable and has not been fully paid and specifying the amount
of funds required to make such payment.
Bank of Montreal Trust Company, Trustee, and Mark F.
McLaughlin, Co-Trustee, may conclusively presume that no
redemption of bonds of the Twentieth Series is required unless
and until it shall have received a written notice (which may be a
facsimile followed by a hard copy) from the trustee under the
Independence Indenture signed by its President, a Vice President
or a Trust Officer, stating that the Independence Bonds have
become immediately due and payable pursuant to Section 10.2 of
the Independence Indenture, upon the occurrence of an Event of
Default under Section 10.1 (a), (b), (e) or (f) of said
Independence Indenture, or that Independence Bonds are to be
redeemed pursuant to Section 8.1(c) of the Independence Indenture
and specifying the date fixed for the redemption and the
principal amount thereof.
No recourse shall be had for the payment of the principal
of, premium, if any, or interest on this bond against any
incorporator or any past, present or future subscriber to the
capital stock, stockholder, officer or director of the Company or
of any predecessor or successor corporation, as such, either
directly or through the Company or any predecessor or successor
corporation, under any rule of law, statute or constitution or by
the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers
and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
As provided in the Mortgage, this bond shall be governed
by and construed in accordance with the laws of the State of New
York.
IN WITNESS WHEREOF, Entergy Mississippi, Inc. has caused
this bond to be signed in its corporate name by its Chairman of
the Board, Chief Executive Officer, President or one of its Vice
Presidents by his or her signature or a facsimile thereof, and
its corporate seal to be impressed or imprinted hereon and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated: May 28, 1999
ENTERGY MISSISSIPPI, INC.
By:
Steven C. McNeal
Title: Vice President and Treasurer
Attest:
__________________________
Title: Assistant Secretary
<PAGE>
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned
mortgage.
BANK OF MONTREAL TRUST
COMPANY, as Trustee
By:
Authorized Signature
Exhibit B-5(a)
Trust Indenture
between
Independence County, Arkansas
and
Chase Bank of Texas, National Association
Dated as of May 1, 1999
$30,000,000
Independence County, Arkansas
Pollution Control Revenue Refunding Bonds
(Entergy Mississippi, Inc. Project)
Series 1999
<PAGE>
Trust Indenture
This Trust Indenture dated as of May 1, 1999 between
Independence County, Arkansas, a political subdivision of the
State of Arkansas (the "Issuer"), and Chase Bank of Texas,
National Association, a banking corporation organized and
existing under and by virtue of the laws of the United States of
America and duly authorized to accept and execute trusts, as
trustee (the "Trustee").
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Arkansas, authorized and empowered by law, including
particularly the provisions of Title 14, Chapter 267 of the
Arkansas Code of 1987 Annotated, as amended (the "Act"), to issue
its revenue bonds for the purpose of using the funds derived from
the sale thereof to finance and refinance the acquisition,
construction, reconstruction, extension, equipment or improvement
of pollution control facilities for the disposal or control of
sewage, solid waste, water pollution, air pollution, or any
combination thereof; and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of July 1, 1982 (the "1982 Indenture") by and
between the Issuer and The Bank of New York (successor to Deposit
Guaranty National Bank), as trustee (the "Prior Trustee"), the
Issuer issued its Pollution Control Revenue Bonds, 1982 Series A,
B and C (Mississippi Power & Light Company Project) (the "1982
Bonds") in the aggregate principal amount of $15,000,000 for the
purpose of providing funds to finance the cost of acquiring,
constructing and equipping the Company's interest in certain
pollution control facilities (collectively, the "Facilities") at
the electric generating plant jointly owned by the Company and
others located within the boundaries of the Issuer near Newark,
Arkansas and known as the Independence Steam Electric Station
(the "Plant"); and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of December 1, 1982 (the "1982-A Indenture")
by and between the Issuer and the Prior Trustee, the Issuer
issued its Pollution Control Revenue Bonds, 1982-A Series A and B
(Mississippi Power & Light Company Project) (the "1982-A Bonds")
in the aggregate principal amount of $15,000,000 for the purpose
of providing funds to finance the cost of acquiring, constructing
and equipping the Company's interest in the Facilities at the
Plant; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds are herein
collectively called the "Prior Bonds"; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds were initially
issued as adjustable rate bonds but were converted to fixed rate
bonds pursuant to the provisions of the 1982 Indenture and the
1982-A Indenture, respectively; and
WHEREAS, in furtherance of the statutory purposes of the
Act, the Issuer entered into separate Installment Sale Agreements
pertaining to the 1982 Bonds and the 1982-A Bonds, dated as of
July 1, 1982 and December 1, 1982, respectively, with the
Company, pursuant to which the Issuer acquired the respective
Facilities from the Company and resold the Facilities to the
Company, as more fully described therein; and
WHEREAS, $15,000,000 of the 1982 Bonds and $15,000,000 of
the 1982-A Bonds are outstanding, and the Company has requested
that the Issuer refund such outstanding 1982 Bonds and 1982-A
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $30,000,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Mississippi, Inc. Project) Series 1999 (the "Bonds"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding the Prior Bonds; and
WHEREAS, the Bonds bear interest, mature and are subject to
redemption and purchase as set forth in this Trust Indenture; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to a Refunding Agreement
dated as of May 1, 1999 (the "Refunding Agreement") between the
Issuer and the Company, said Bonds to be paid solely from the
revenues derived by the Issuer from said payments by the Company
pursuant to the Refunding Agreement and any moneys held under
this Indenture, and said Bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Arkansas, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, all consents and approvals required to be given by
public bodies in connection with the authorization, issuance and
sale of the Bonds herein authorized as required by the Act have
been or will be secured prior to the delivery of such Bonds; and
WHEREAS, the execution and delivery of this Indenture under
the Act have been in all respects duly and validly authorized by
order of the County Court of the Issuer, duly entered; and
WHEREAS, all other things necessary to make the Bonds, when
issued, executed and delivered by the Issuer and authenticated
pursuant to this Indenture, the valid, legal and binding obliga
tions of the Issuer, and to constitute this Indenture a valid
pledge of the Revenues (as hereinafter defined) and other amounts
pledged hereunder as security for the payment of the principal
of, premium, if any, and interest on the Bonds authenticated and
delivered under this Indenture, have been 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;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH that in
consideration of the premises and the acceptance by the Trustee
of the trusts hereby created and of the purchase and acceptance
of the Bonds by the holders and owners thereof, and for other
good and valuable consideration, the receipt of which is hereby
acknowledged, and in order to provide for the payment of
principal, purchase price and redemption price (as the case may
be) in respect of all Bonds issued and outstanding under this
Indenture, together with interest thereon, and in order to secure
the rights of the Bondholders and the performance of the
covenants contained in the Bonds and herein, the Issuer does
hereby grant, bargain, sell, convey, pledge, transfer and assign
unto the Trustee, its successors in the trust and their assigns
forever (i) all of the right, title and interest of the Issuer in
and to the Revenues and the General and Refunding Bonds issued
and delivered by the Company pursuant to the Refunding Agreement,
(ii) the Refunding Agreement and all right, title and interest of
the Issuer under and pursuant to the Refunding Agreement, insofar
as they relate to all Bonds issued and outstanding under this
Indenture (except for the indemnification and expense
reimbursement rights and other rights contained in Sections 4.5,
4.6, 4.7 and 8.5 thereof and any rights of the Issuer to receive
notices, certificates, requests, requisitions, directions and
other communications under the Refunding Agreement), including,
without limitation, all Payments to be received under and
pursuant to and subject to the provisions of the Refunding
Agreement and the right to receive the General and Refunding
Bonds, (iii) all amounts on deposit in the Bond Fund or other
funds created under this Indenture other than the Bond Purchase
Fund which is not pledged hereunder and does not constitute
security for the Bonds, and (iv) all moneys, securities and
obligations from time to time held by the Trustee under the terms
of this Trust Indenture and any and all real and personal
property of every kind and nature from time to time hereafter by
delivery or by writing of any kind conveyed, mortgaged, pledged,
assigned or transferred, as and for additional security hereunder
by the Issuer or by anyone in its behalf or with its written
consent to the Trustee, which is hereby authorized to receive any
and all such property at any and all times and to hold and apply
the same subject to the terms hereof; except for moneys,
securities or obligations deposited with or paid to the Trustee
for redemption or payment of Bonds which have been redeemed or
matured or which are deemed to have been paid in accordance with
Article XV hereof, which shall be held by the Trustee for the
benefit of said owners in accordance with the provisions of said
Article XV or Section 6.2, as the case may be (collectively, the
"Trust Estate"); provided, however, that nothing in the Bonds or
in this Indenture shall be construed as pledging the general
credit or taxing power of the Issuer or the State of Arkansas,
nor shall this Indenture or the Bonds give rise to a pecuniary
liability of the Issuer.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trust and to
them and their assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and
protection of all holders and owners of the Bonds issued under
and secured by this Indenture without privilege, preference,
priority or distinction as to the lien or otherwise of any of the
Bonds over any of the other Bonds.
PROVIDED, HOWEVER, that if the Issuer, its successors or
assigns, shall well and truly pay, or cause to be paid, the
principal of, premium, if any, and interest on the Bonds due or
to become due thereon, at the times and in the manner mentioned
in the Bonds, according to the true intent and meaning thereof,
and shall cause the payments to be made into the Bond Fund as
required under Article VI 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, and shall well
and truly keep, perform and observe all the covenants and
conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid
to the Trustee all sums of money due or to become due in
accordance with the terms and provisions hereof, then upon such
final payments this Indenture and the rights hereby granted shall
cease, terminate and be void; otherwise this Indenture to be and
remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and all said revenues and
receipts hereby pledged and assigned are to be dealt with and
disposed of under, upon and subject to the terms,
conditions,stipulations, covenants, agreements, trusts, uses and
purposes hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant, with the Trustee
and with the respective holders and owners, from time to time, of
the Bonds, as follows (provided that, in the performance of the
agreements of the Issuer herein contained, any obligation it may
thereby incur for the payment of money shall not be a general
debt on its part or a charge against its general credit but shall
be payable solely from the Trust Estate, including the Revenues),
that is to say:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined
herein, all words and phrases defined in the preamble hereto or
in the Refunding Agreement shall have the same meaning in this
Indenture. In this Indenture and any indenture supplemental
hereto (except as otherwise expressly provided for or unless the
context otherwise requires) the singular includes the plural, the
masculine includes the feminine, and each of the following terms
shall have the following meanings:
"Act" means Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended, and all future acts supplemental
thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to the Refunding
Agreement, this Indenture and any transaction or event
contemplated by the Refunding Agreement or this Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent, the
Market Agent, the Auction Agent, the Broker-Dealers and the Bond
Registrar under this Indenture.
"Affiliate" shall mean any person known to the Auction Agent
to be controlled by, in control of or under common control with
the Company; provided that no Broker-Dealer shall be deemed an
Affiliate solely because a director or executive officer of such
Broker-Dealer or of any person controlling, controlled by or
under common control with such Broker-Dealer is also a director
of the Company.
"After-Tax Equivalent Rate" shall mean on any date of
determination the interest rate per annum equal to the product of
(x) the Commercial Paper/Treasury Rate on such date and (y) 1.00
minus the highest tax rate bracket (expressed in decimals)
applicable in the then current taxable year on the taxable income
of every corporation as set forth in Section 11 of the Code or
any successor section without regard to any minimum additional
tax provision or provisions regarding changes in rates during
such taxable year on such date.
"Agent Member" shall mean a member of, or participant in,
DTC.
"Agreement" or "Refunding Agreement" means the Refunding
Agreement dated as of May 1, 1999 between the Company and the
Issuer which relates to the Bonds, as amended or supplemented
from time to time.
"Applicable Percentage" shall mean on any date of
determination the percentage determined as set forth below (as
such percentage may be adjusted pursuant to Section 3.4(a)) based
on the prevailing rating of the Bonds in effect at the close of
business on the Business Day immediately preceding such date of
determination:
Applicable
Prevailing Rating Percentage
AAA/Aaa 175%
AA/Aa 175%
A/A 175%
BBB/Baa 200%
Below BBB/Baa 265%
For purposes of this definition, the prevailing rating of
the Bonds will be (a) AAA/Aaa, if the Bonds have a rating of AAA
by S&P and a rating of Aaa by Moody's, (b) if not AAA/Aaa, then
AA/Aa if the Bonds have a rating of AA- or better by S&P and a
rating of Aa3 or better by Moody's, (c) if not AAA/Aaa or AA/Aa,
then A/A if the Bonds have a rating of A- or better by S&P and a
rating of A3 or better by Moody's, (d) if not AAA/Aaa, AA/Aa or
A/A, then BBB/Baa, if the Bonds have a rating of BBB-or better by
S&P and a rating of Baa3 or better by Moody's, and (e) if not
AAA/Aaa, AA/Aa, A/A or BBB/Baa, then Below BBB/Baa.
"Auction" shall mean each periodic implementation of the
Dutch Auction Procedures.
"Auction Agent Agreement" shall mean the Auction Agent
Agreement dated as of May 1, 1999 between the Company and the
Auction Agent, as amended or supplemented from time to time.
"Auction Agent" shall mean the auction agent appointed in
accordance with Section 12.4 hereof.
"Auction Date" shall mean June 28, 1999, and with respect to
each Auction Period thereafter the last Monday of the immediately
preceding Auction Period or, if such last Monday is not a
Business Day, the next succeeding Business Day.
"Auction Period" shall mean, during a Dutch Auction Rate
Period, each period from and including the Issue Date and,
thereafter, the last Interest Payment Date for the immediately
preceding Auction Period, Daily Rate Period, Weekly Rate Period,
Multiannual Rate Period or Commercial Paper Rate Period, as the
case may be, to and including the earliest of (i) June 30, 2022
(ii) the day next preceding the last Interest Payment Date in
respect of each Auction Period and (iii) the last day of such
Dutch Auction Rate Period.
"Authenticating Agent" means the Trustee and any agent so
designated in and appointed pursuant to Section 2.6 hereof.
"Authorized Company Representative" means the President, any
Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company or the person
or persons at the time designated to act on behalf of the Company
by any one of said officers, such designation in each case to be
evidenced by a certificate furnished to the Issuer and the
Trustee containing the specimen signature of such person or
persons and signed on behalf of the Company by said officer.
"Available Auction Bonds" shall have the meaning set forth
in Section 3.4(e).
"Bid" shall have the meaning set forth in Section 3.4(c)
hereof.
"Bidder" shall have the meaning set forth in Section 3.4(c)
hereof.
"Bond Insurance Policy" means the municipal bond insurance
policy issued by the Bond Insurer insuring the payment when due
of the principal of and interest on the Bonds as provided
therein.
"Bond Insurer" means Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance company, or any successor
thereto.
"Bonds" means the $30,000,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Mississippi,
Inc. Project) Series 1999 authorized to be issued under this
Indenture. "Bond" means any one of such Bonds.
"Bond Counsel" means any firm of nationally recognized
municipal bond counsel selected by the Issuer and acceptable to
the Company and the Trustee.
"Bond Fund" means the trust fund so designated which is
established pursuant to Section 6.1 hereof.
"Bondholder" or "holder of Bonds" or "owner of Bonds" or
"Registered Owner" or "Owner" means the registered owner of any
Bond other than the registered owner of any Bond which has been
purchased pursuant to Section 4.3 and not surrendered for payment
of the Purchase Price thereof.
"Bond Purchase Fund" means the special fund of that name
created pursuant to Section 4.4 hereof.
"Bond Register" and "Bond Registrar" shall have the
respective meanings specified in Section 2.3 hereof.
"Broker-Dealer" shall mean any entity permitted by law to
perform the functions required of a Broker-Dealer set forth in
the Dutch Auction Procedures (i) that is an Agent Member (or an
affiliate of an Agent Member), (ii) that has been selected by the
Auction Agent with the consent of the Company, and (iii) that has
entered into a Broker-Dealer Agreement with the Auction Agent
that remains effective.
"Broker-Dealer Agreement" shall mean each agreement between
a Broker-Dealer and the Auction Agent, substantially in the form
attached to the Auction Agent Agreement as Exhibit A, pursuant to
which a Broker-Dealer, among other things, agrees to participate
in Auctions as set forth in the Dutch Auction Procedures, as from
time to time amended and supplemented.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" shall mean the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Commercial Paper Dealers" shall mean Lehman Commercial
Paper Inc., Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated or, in
lieu of any thereof, their respective affiliates or successors,
provided that any such entity is a commercial paper dealer.
"Commercial Paper/Treasury Rate" shall mean on any date of
determination (i) in the case of any Auction Period of less than
49 days, the interest equivalent of the 30-day rate, (ii) in the
case of any Auction Period of 49 days or more but less than 70
days, the interest equivalent of the 60-day rate, (iii) in the
case of any Auction Period of 70 days or more but less than 85
days, the arithmetic average of the interest equivalent of the 60-
day and 90-day rates, (iv) in the case of any Auction Period of
85 days or more but less than 99 days, the interest equivalent of
the 90-day rate, (v) in the case of any Auction Period of 99 days
or more but less than 120 days, the arithmetic average of the
interest equivalent of the 90-day and 120-day rates, (vi) in the
case of any Auction Period of 120 days or more but less than 141
days, the interest equivalent of the 120-day rate, (vii) in the
case of any Auction Period of 141 days or more but less than 162
days, the arithmetic average of the interest equivalent of the
120-day and 180-day rates, (viii) in the case of any Auction
Period of 162 days or more but less than 183 days, the interest
equivalent of the 180-day rate, and (ix) in the case of any
Auction Period of 183 days or more, the Treasury Rate with
respect to such Auction Period, which rates shall be, in all
cases other than the Treasury Rate, rates on commercial paper
with the specified maturities placed on behalf of issuers whose
corporate bonds are rated AA by S&P or the equivalent of such
rating by S&P, as made available on a discount basis or otherwise
by the Federal Reserve Bank of New York for the Business Day
immediately preceding such date of determination, or in the event
that the Federal Reserve Bank of New York does not make available
any such rate, then the arithmetic average of such rates, as
quoted on a discount basis or otherwise, by the Commercial Paper
Dealers, to the Auction Agent for the close of business on the
Business Day immediately preceding such date of determination.
If any Commercial Paper Dealer does not quote a commercial
paper rate required to determine the Commercial Paper/Treasury
Rate, the Commercial Paper/Treasury Rate shall be determined on
the basis of such quotation or quotations furnished by the
remaining Commercial Paper Dealer or Commercial Paper Dealers and
any Substitute Commercial Paper Dealer or Substitute Commercial
Paper Dealers selected by the Company to provide such quotation
or quotations not being supplied by any Commercial Paper Dealer
or Commercial Paper Dealers, as the case may be, or if the
Company does not select any such Substitute Commercial Paper
Dealer or Substitute Commercial Paper Dealers, by the remaining
Commercial Paper Dealer or Commercial Paper Dealers. For purposes
of this definition, the "interest equivalent" of a rate stated on
a discount basis (a "discount rate") for commercial paper of a
given day's maturity shall be equal to the product of (A) 100 and
(B) the quotient (rounded upwards to the next higher one-
thousandth (.001) of 1%) of (x) the discount rate (expressed in
decimals) and (y) the difference between (1) 1.00 and (2) a
fraction the numerator of which shall be the product of the
discount rate (expressed in decimals) times the number of days in
which such commercial paper matures and the denominator of which
shall be 360.
"Commercial Paper Rate" means the interest rate for each
Bond as determined with respect to such Bond as provided in
Section 3.2 hereof.
"Commercial Paper Rate Conversion Date" means the day on
which the Bonds accrue interest at a Commercial Paper Rate
pursuant to Section 3.3 which is immediately preceded by a day on
which the Bonds did not accrue interest at a Commercial Paper
Rate.
"Commercial Paper Rate Period" means with respect to any
Bond, each period determined for such Bond as provided in Section
3.2 hereof.
"Company" means Entergy Mississippi, Inc., a Mississippi
corporation, and its permitted successors and assigns.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust dated as of February 1, 1988 to Bank of Montreal
Trust Company, as corporate trustee, and Mark F. McLaughlin
(successor to Z. George Klodnicki), as co-trustee, as heretofore
and hereafter amended and supplemented, including the Fourteenth
Supplemental Indenture dated as of May 1, 1999, pursuant to which
the General Refunding Bonds will be issued.
"Company Mortgage Trustees" shall mean the trustees under
the Company Mortgage.
"Conversion Date" means the day on which a particular type
of interest rate becomes effective for the Bonds which is not
immediately preceded by a day on which the Bonds have accrued
interest at the same type of interest rate (and, when used with
respect to any Multiannual Rate Period, a date which is not
preceded by a Multiannual Rate Period of the same duration).
Each Conversion Date shall be an Interest Payment Date for the
Rate Period from which the Bonds are converted.
"Counsel" means an attorney at law or law firm (who may be
counsel for the Issuer or the Company).
"Daily Rate" means the interest rate to be determined for
the Bonds on each Business Day pursuant to Section 3.2 hereof.
"Daily Rate Conversion Date" means the day on which the
Bonds accrue interest at a Daily Rate pursuant to Section 3.3
which is immediately preceded by a day on which the Bonds did not
accrue interest at a Daily Rate.
"Daily Rate Period" means each period during which the Bonds
accrue interest at a particular Daily Rate.
"Default" means any event which with the giving of notice or
the lapse of time or both would constitute an Event of Default.
"DTC" means The Depository Trust Company, New York, New
York, its successors and their assigns or if The Depository Trust
Company or its successor or assign resigns from its functions as
depository for the Bonds, any other securities depository which
agrees to follow the procedures required to be followed by a
securities depository in connection with the Bonds and which is
selected by the Issuer, at the direction of the Company, with the
consent of the Market Agent.
"Dutch Auction Procedures" shall mean the procedures set
forth in Sections 3.4(c), (d), (e) and (f) hereof.
"Dutch Auction Rate" shall mean the interest rate to be
determined for the Bonds pursuant to Section 3.4 hereof.
"Dutch Auction Rate Period" shall mean each period during
which the Bonds accrue interest at a Dutch Auction Rate.
"Electronic" notice means notice transmitted through a
time-sharing terminal or facsimile machine, if operative as
between any two parties, or if not operative, in writing or by
telephone (promptly confirmed in writing).
"Event of Default" means any of the events specified in
Section 10.1 hereof to be an Event of Default.
"Existing Holder" shall mean, for purposes of each Auction,
a person who is listed as the beneficial owner of Bonds in the
records of the Auction Agent as of the Regular Record Date in
respect of the last Interest Payment Date for the Auction Period
then ending.
"Facilities" means, collectively, the Company's interest in
certain pollution control facilities at the Plant, financed in
part with the proceeds of the Prior Bonds.
"Failure to Deposit" means any failure to make the deposits
required by Section 3.5 hereof by the time specified therein.
"Favorable Opinion of Bond Counsel" means an opinion of Bond
Counsel addressed to the Issuer, the Company and the Trustee and
stating, unless otherwise specified herein, that the action
proposed to be taken is authorized or permitted by the laws of
the State and this Indenture and such action will not adversely
affect the exclusion from gross income of interest on the Bonds
for federal income tax purposes (other than as held by a
"substantial user" of the Facilities or a "related person" within
the meaning of the Code).
"General and Refunding Bonds" shall mean the series of bonds
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 of the Refunding Agreement.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or specific interest or principal
payments shall be a bank or trust company organized under the
laws of the United States of America or of any state or territory
thereof or of the District of Columbia, with a combined capital
stock, surplus and undivided profits of at least $50,000,000; and
provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the
full amount received by such custodian in respect of such
obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"Hold Order" shall have the meaning set forth in Section
3.4(c) hereof.
"Indenture" means this Trust Indenture, as amended or
supplemented.
"Index", on any date of determination, shall mean (1) the
tax-exempt money market rate index for 30-day variable rate
obligations prepared by the Market Agent published on The
BLOOMBERG provided through Bloomberg Financial Markets of
Bloomberg L.P., or on Dalcomp system on such date of
determination or (ii) if such rate is not published by 9:00 A.M.,
New York City time, on such date of determination, the interest
index selected by the Market Agent representing the weighted
average of the yield on tax-exempt commercial paper, or tax-
exempt bonds bearing interest at a commercial paper rate or
pursuant to a commercial paper mode, having a range of maturities
or mandatory purchase dates between 25 and 36 days traded during
the immediately preceding five Business Days.
"Interest Payment Date" means (a) when used with respect to
any particular Bond accruing interest at a Commercial Paper Rate,
the day after the last day of each Commercial Paper Rate Period
applicable thereto; (b) when used with respect to Bonds accruing
interest at Daily or Weekly Rates, the first Business Day of each
calendar month following a month in which interest at such rate
has accrued; (c) when used with respect to Bonds accruing
interest at a Multiannual Rate, the first day of the sixth
calendar month following the month in which the Multiannual Rate
Conversion Date or the commencement date of a Multiannual Rate
Period preceded by a Multiannual Rate Period of the same duration
occurs and the first day of each sixth month thereafter to which
interest at such rate has accrued, and the day after the last day
of each Multiannual Rate Period, except that the last Interest
Payment Date for any Multiannual Rate Period which is followed by
a Commercial Paper, Dutch Auction, Daily or Weekly Rate Period
shall be the first Business Day of the sixth month following the
preceding Interest Payment Date; (d) when used with respect to
Bonds bearing interest at a Dutch Auction Rate, (i) for an
Auction Period of 91 days or less, the Business Day immediately
succeeding the last day of such Auction Period and (ii) for an
Auction Period of more than 91 days, each 13th Tuesday after the
first day of such Auction Period and the Business Day immediately
succeeding the last day of such Auction Period (in each case, it
being understood that in those instances where the immediately
preceding Auction Date falls on a day that is not a Business Day,
the Interest Payment Date with respect to the succeeding Auction
Period shall be one Business Day immediately succeeding the next
Auction Date); and (e) the Maturity Date.
"Interest Period" means the period from and including any
Interest Payment Date to and including the day immediately
preceding the next following Interest Payment Date.
"Interest Rate" or "interest rate" means a Commercial Paper,
Dutch Auction, Daily, Weekly or Multiannual Rate.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means Independence County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Letter of Representations" means the letter agreement among
the Issuer, the Trustee, the Paying Agent and the Remarketing
Agent, and accepted by DTC, entered into in connection with DTC's
book-entry-only system.
"Market Agent" shall mean the market agent appointed
pursuant to Section 12.6 hereof, and its successors and their
assigns.
"Maturity Date" means July 1, 2022.
"Maximum Dutch Auction Rate" shall mean on any date of
determination (i) if such determination is in respect of an
Auction with respect to a Standard Auction Period, and is made
during a Standard Auction Period, the interest rate per annum
equal to the lesser of (A) 9.5% and (B) the Applicable Percentage
of the greater of (a) the After-Tax Equivalent Rate, as
determined on such date with respect to a Standard Auction Period
and (b) the Index on such date or (ii) if such determination is
in respect of an Auction with respect to an Auction Period which
is not of the same duration as the Auction Period then ending,
the interest rate per annum equal to the lesser of (A) 9.5% and
(B) the greatest of (a) the Applicable Percentage of the After-
Tax Equivalent Rate, as determined on such date with respect to a
Standard Auction Period, (b) the Applicable Percentage of the
After-Tax Equivalent Rate, as determined on such date with
respect to the Auction Period, if any, which is proposed to be
established, (c) the Applicable Percentage of the After-Tax
Equivalent Rate, as determined on such date with respect to the
Auction Period then ending and (d) the Applicable Percentage of
the Index on such date.
"Minimum Dutch Auction Rate" shall mean on any date of
determination the interest rate per annum equal to the lesser of
(i) 9.5%, (ii) 90% (as such percentage may be adjusted pursuant
to Section 3.4(a) hereof) of the After-Tax Equivalent Rate on
such date and (iii) 90% of the Index on such date.
"Moody's" means Moody's Investors Service, its successors
and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized securities rating agency
designated by the Company, with the consent of the Remarketing
Agent and the Market Agent, with notice to the Trustee and the
Auction Agent.
"Multiannual Rate" means the interest rate to be determined
for the Bonds for a term of one or more years pursuant to Section
3.2 hereof.
"Multiannual Rate Conversion Date" means each day on which
the Bonds accrue interest at a Multiannual Rate pursuant to
Section 3.3 hereof which is immediately preceded by a day on
which the Bonds did not accrue interest at a Multiannual Rate or
accrued interest at a Multiannual Rate for a Multiannual Rate
Period of a different duration.
"Multiannual Rate Period" means each period during which the
Bonds accrue interest at a particular Multiannual Rate.
"Order" shall have the meaning set forth in Section 3.4(c)
hereof.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 hereof;
(b) Bonds which are deemed to have been paid in accordance
with Article XV hereof;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II hereof;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV hereof, all Bonds (or portions of Bonds) which are
tendered or deemed to have been tendered for purchase on such
date, provided that funds sufficient for such purchase are on
deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions hereof, Bonds which are held by or on
behalf of the Company or any affiliates thereof (unless all of
the outstanding Bonds are then owned by said parties) shall be
disregarded for the purpose of any such determination.
Notwithstanding the foregoing, Bonds so owned which have been
pledged in good faith shall not be disregarded as aforesaid if
the pledgee has established to the satisfaction of the Bond
Registrar the pledgee's right so to act with respect to such
Bonds and that the pledgee is not the Company or an affiliate
thereof.
"Overdue Rate" shall mean, on any date of determination, the
lesser of (i) 9.5% and (ii) the Applicable Percentage (determined
as if the Bonds had a prevailing rating of Below BBB/Baa) of the
Index on such date.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 hereof. The
Trustee is the original Paying Agent.
"Payments" means the payments payable by the Company
pursuant to and as required by Section 4.2 of the Refunding
Agreement.
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a joint stock
company, a trust, an unincorporated organization, a governmental
body or a political subdivision, a municipal corporation, a
public corporation or any other group or organization of
individuals.
"Plant" means the electric generating plant jointly owned by
the Company and others located within the boundaries of the
County near Newark, Arkansas and known as the Independence Steam
Electric Station.
"Potential Holder" means any person, including any Existing
Holder, who may be interested in acquiring the beneficial
ownership of Bonds during a Dutch Auction Rate Period or, in the
case of an Existing Holder thereof, the beneficial ownership of
an additional principal amount of Bonds during a Dutch Auction
Rate Period.
"Prior Bonds" means, collectively, the 1982 Bonds and the
1982-A Bonds referred to in the preamble hereof.
"Prior Indenture" means, collectively, the 1982 Indenture
and the 1982-A Indenture referred to in the preamble hereof.
"Prior Trustee" means The Bank of New York (successor to
Deposit Guaranty National Bank), and its successors and assigns,
referred to in the preamble hereof.
"Principal Office of the Paying Agent" or "Principal Office
of the Co-Paying Agent" shall mean the office thereof designated
in writing to the Trustee.
"Purchase Date" means, with respect to each Bond, each day
that such Bond is subject to purchase pursuant to Section 4.1 or
4.2 hereof.
"Purchase Price" or "purchase price" for any Bond shall
equal 100% of the principal amount of such Bond plus accrued
interest, if any, to the Purchase Date, plus in the case of a
Bond converted from a Multiannual Rate Period on a date when such
Bond is also subject to optional redemption at a premium, an
amount equal to the premium that would be payable on such Bond if
redeemed on such date.
"Rate Period" means the period during which a particular
rate of interest determined for the Bonds is to remain in effect
pursuant to Article III hereof.
"Record Date" means, as the case may be, the applicable
Regular or Special Record Date.
"Refunding Date" means July 1, 1999, or such later date as
may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of delivery of the Bonds to the Underwriter.
"Refunding Fund" shall mean the fund by that name created
and established in Section 5.1 hereof.
"Regular Record Date" means the close of business on either
(a) the day (whether or not a Business Day) immediately preceding
an Interest Payment Date in the case of Bonds accruing interest
at Commercial Paper, Daily or Weekly Rates, (b) the second
Business Day preceding an Interest Payment Date in the case of
Bonds accruing interest at Dutch Auction Rates, or (c) the
fifteenth day (whether or not a Business Day) of the calendar
month immediately preceding the Interest Payment Date in the case
of Bonds accruing interest at Multiannual Rates.
"Release Date" means the date, if any, on which the General
and Refunding Bonds are surrendered by the Trustee pursuant to
Section 4.3(g) of the Refunding Agreement.
"Remarketing Agent" means Morgan Stanley & Co. Incorporated,
and its successors as provided in Section 12.1 hereof.
"Principal Office of the Remarketing Agent" means the office
designated in writing to the Issuer, the Trustee and the Company.
"Remarketing Agreement" means the Remarketing Agreement
dated as of May 1, 1999 between the Company and the Remarketing
Agent, as the same may be amended from time to time, and any
remarketing agreement between the Company and a successor
Remarketing Agent.
"Revenues" means all amounts paid or payable by the Company
in respect of the principal of, premium, if any, and interest on
the General and Refunding Bonds, including without limitation
amounts payable by the Company pursuant to Section 4.2 of the
Refunding Agreement, and all receipts of the Trustee credited
under the provisions of this Indenture against such payments.
"S&P" means Standard & Poor's Ratings Group, a Division of
the McGraw-Hill Companies, Inc., a New York corporation, its
successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, "S&P" shall be deemed to refer to
any other nationally recognized securities rating agency
designated by the Company, with the consent of the Remarketing
Agent and the Market Agent, by notice to the Trustee and the
Auction Agent.
"Securities Depository" means any "clearing agency"
registered under Section 17A of the Securities Exchange Act of
1934, as amended.
"Sell Order" shall have the meaning set forth in Section
3.4(c).
"Special Record Date" means such date as may be fixed for
the payment of defaulted interest in accordance with Section 2.7
hereof.
"Standard Auction Period" initially shall mean an Auction
Period of 35 days and after the establishment of a different
period pursuant to Section 3.4(b) shall mean such different
period.
"State" means the State of Arkansas.
"Submission Deadline " means 1:00 p.m., New York City time,
on any Auction Date or such other time on any Auction Date by
which Brokers-Dealers are required to submit Orders to the
Auction Agent as specified by the Auction Agent from time to
time.
"Submitted Bid" shall have the meaning set forth in Section
3.4(e).
"Submitted Hold Order" shall have the meaning set forth in
Section 3.4(e).
"Submitted Order" shall mean have the meaning set forth in
Section 3.4(e).
"Submitted Sell Order" shall have the meaning set forth in
Section 3.4(e).
"Substitute Commercial Paper Dealer" shall mean Credit
Suisse First Boston Corporation or Salomon Smith Barney Inc., or
their respective affiliates or successors, if such person is a
commercial paper dealer, provided that neither such person nor
any of its affiliates or successors shall be a Commercial Paper
Dealer.
"Substitute U.S. Government Securities Dealer" shall mean
Credit Suisse First Boston Corporation or Salomon Smith Barney
Inc., or their respective successors and their respective
assigns.
"Sufficient Clearing Bids" shall have the meaning set forth
in Section 3.4(e) hereof.
"Treasury Rate" shall mean on any date of determination for
any Auction Period, (i) the bond equivalent yield calculated in
accordance with prevailing industry convention of the rate on the
most recently auctioned direct obligations of the U.S. Government
having a maturity at the time of issuance of 364 days or less
with a remaining maturity closest to the length of such Auction
Period as quoted in The Wall Street Journal on such date for the
Business Day next preceding such date; or (ii) in the event that
any such rate is not published by The Wall Street Journal, then
the bond equivalent yield calculated in accordance with
prevailing industry convention as calculated by reference to the
arithmetic average of the bid price quotations of the most
recently auctioned direct obligations of the U.S. Government
having a maturity at the time of issuance of 364 days or less
with a remaining maturity closest to the length of such Auction
Period, based on bid price quotations on such date obtained by
the Auction Agent from the U.S. Government Securities Dealers;
provided, that, if any U.S. Government Securities Dealer does not
provide a bid price quotation required to determine the Treasury
Rate, the Treasury Rate shall be determined on the basis of the
quotation or quotations furnished by the remaining U.S.
Government Securities Dealer or Dealers and any Substitute U.S.
Government Securities Dealer or Dealers selected by the Company
to provide such rate or rates not being supplied by any U.S.
Government Securities Dealer or U.S. Government Securities
Dealers, as the case may be, or, if the Company does not select
any such Substitute U.S. Government Securities Dealer or
Substitute U.S. Government Securities Dealers, by the remaining
U.S. Government Securities Dealer or U.S. Government Securities
Dealers.
"Trustee" means Chase Bank of Texas, National Association,
and its successor for the time being in the trust hereunder.
"Principal Office of the Trustee" means the principal corporate
trust office of the Trustee.
"Underwriter" means Morgan Stanley & Co. Incorporated..
"U. S. Government Securities Dealers" means Lehman
Government Securities Incorporated, Merrill Lynch Government
Securities, Inc., and Morgan Stanley & Co. Incorporated, or their
respective successors and their respective assigns.
"Weekly Rate" means the interest rate to be determined for
the Bonds on a weekly basis pursuant to Section 3.2 hereof.
"Weekly Rate Conversion Date" means each day on which the
Bonds accrue interest at a Weekly Rate pursuant to Section 3.3
hereof which is immediately preceded by a day on which the Bonds
did not accrue interest at a Weekly Rate.
"Weekly Rate Period" means the period during which the Bonds
accrue interest at a particular Weekly Rate.
"Winning Bid Rate" shall have the meaning set forth in
Section 3.4(e) hereof.
"Written Order" means a written order or other written
instructions signed in the name of the Issuer by the County Judge
and delivered to the Trustee.
The words "hereof", "herein", "hereto", "hereby" and "hereun
der" and other equivalent words and phrases (except in the form
of Bond) refer to the entire Indenture. Unless otherwise noted,
all Section and Article references are to sections and articles
in this Indenture.
ARTICLE II
THE BONDS
SECTION 2.1. Amount, Terms, and Issuance of Bonds. The
Bonds shall, except as provided in Section 2.9 hereof, be limited
to $30,000,000 in aggregate principal amount and shall contain
substantially the terms recited in the form of bond attached
hereto as Exhibit A with such changes and variations as may be
necessary to conform to the provisions hereof. The Bonds may
have such additional legends thereon as shall be customary in the
industry or deemed necessary by the Trustee in order to provide
for an orderly transition of Bonds bearing interest at a Commerci
al Paper Rate to Bonds bearing interest at a Dutch Auction Rate,
Daily Rate or Weekly Rate as permitted by Section 3.2(b). No
bonds other than the Bonds may be issued under this Indenture.
No Bonds may be issued under this Indenture except in accordance
with this Article.
Pursuant to recommendations promulgated by the Committee on
Uniform Security Identification Procedures, "CUSIP" numbers may
be printed on the Bonds. The Bonds may bear such endorsement or
legend satisfactory to the Trustee as may be required to conform
to usage or law with respect thereto.
The Issuer may issue the Bonds upon the execution of this
Indenture, and the Trustee shall, at the Issuer's request
evidenced by a Written Order, authenticate the Bonds and deliver
them as specified in such Written Order.
SECTION 2.2. Designation, Denominations, Maturity and
Form. The Bonds shall be designated "Independence County,
Arkansas Pollution Control Revenue Refunding Bonds (Entergy
Mississippi, Inc. Project) Series 1999".
All Bonds shall be dated the date of their authentication.
The Bonds shall mature on the Maturity Date.
All Bonds accruing interest at Dutch Auction, Daily or
Weekly Rates shall be issued in denominations of $100,000 and
whole multiples thereof. All Bonds accruing interest at
Commercial Paper Rates shall be issued in denominations of
$100,000 and any integral multiples of $1,000 in excess thereof.
All Bonds accruing interest at a Multiannual Rate shall be in
denominations of $5,000 and whole multiples thereof.
SECTION 2.3. Registered Bonds Required; Bond Registrar and
Bond Register. All Bonds shall be issued in fully registered
form without coupons. The Bonds shall be registered upon
original issuance and upon subsequent transfer or exchange as
provided in this Indenture.
The Issuer shall designate, at the direction of the Company,
one or more persons to act as "Bond Registrar" for the Bonds
provided that the Bond Registrar appointed for the Bonds shall be
either the Trustee, the Paying Agent or a person which would meet
the requirements for qualification as a successor trustee imposed
by Section 11.8. The Issuer hereby appoints the Trustee as
initial Bond Registrar. Any Person other than the Trustee
undertaking to act as Bond Registrar shall first execute a
written agreement, in form satisfactory to the Trustee and the
Company, to perform the duties of a Bond Registrar under this
Indenture, which agreement shall be filed with the Trustee and
the Company. The Paying Agent and Bond Registrar, in performing
their respective duties hereunder, shall be entitled to the same
protective provisions in the performance of their respective
duties as are specified in Article XI of this Indenture with
respect to the Trustee hereunder to the same extent and as fully
for all intents and purposes as though the Paying Agent and Bond
Registrar had been expressly named therein in place of such
Trustee and as though the applicable provisions of Article XI of
this Indenture had been set forth herein at length.
The Bond Registrar shall act as registrar and transfer agent
for the Bonds. The Issuer shall cause to be kept at an office of
the Bond Registrar a register (herein sometimes referred to as
the "Bond Register") in which, subject to such reasonable
regulations as it, the Trustee or the Bond Registrar may
prescribe, the Issuer shall provide for the registration of the
Bonds and for the registration of transfers of the Bonds. The
Issuer shall cause the Bond Registrar to designate, by a written
notification to the Trustee, a specific office location (which
may be changed from time to time, upon similar notification) at
which the Bond Register is kept.
The Bond Registrar shall at any time as reasonably requested
by the Trustee, the Paying Agent or the Remarketing Agent,
certify and furnish to the Trustee, the Paying Agent, the
Remarketing Agent and any Paying Agent as the Trustee shall
specify, the names, addresses, and holdings of Bondholders and
any other relevant information reflected in the Bond Register,
and the Trustee, the Remarketing Agent and any such Paying Agent
shall for all purposes be fully entitled to rely upon the
information so furnished to them and shall have no liability or
responsibility in connection with the preparation thereof.
SECTION 2.4. Transfer and Exchange. Upon surrender for
registration of transfer of any Bond at the designated office of
the Bond Registrar, the Issuer shall execute and the Trustee or
its Authenticating Agent shall authenticate and deliver in the
name of the transferee or transferees, one or more new fully
registered Bonds of authorized denomination for the aggregate
principal amount which the Registered Owner is entitled to
receive.
At the option of the owner, Bonds may be exchanged for other
Bonds of any other authorized denomination, of a like aggregate
principal amount and accruing interest at the same Interest Rate,
upon surrender of the Bonds to be exchanged at the office of the
Bond Registrar. Whenever any Bonds are so surrendered for
exchange, the Issuer shall execute, and the Trustee or the
Authenticating Agent shall authenticate and deliver, the Bonds
which the Bondholder making the exchange is entitled to receive.
All Bonds presented for registration of transfer or exchange
shall be accompanied by a written instrument or instruments of
transfer or authorization for exchange, in form and with guaranty
of signature satisfactory to the Bond Registrar, duly executed by
the owner or by his attorney duly authorized in writing, and such
documentation as the Bond Registrar shall reasonably require.
No service charge shall be made to a Bondholder for any
exchange or registration of transfer of Bonds, but the Issuer or
the Bond Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto.
New Bonds delivered upon any registration of transfer or
exchange shall be valid obligations of the Issuer, evidencing the
same debt as the Bonds surrendered, shall be secured by this
Indenture and shall be entitled to all of the security and
benefits hereof to the same extent as the Bonds surrendered.
Except as provided above or in Article IV hereof, the
Trustee shall not be required to effect any transfer or exchange
during the 15 days immediately preceding the date of mailing of
any notice of redemption or at any time following the mailing of
any such notice in the case of Bonds selected for such
redemption.
SECTION 2.5. Execution. All the Bonds shall, from time to
time, be executed on behalf of the Issuer by the manual or
facsimile signature of the County Judge, its seal (which may be
in facsimile) shall be thereunto affixed (or printed or engraved
or otherwise reproduced thereon if in facsimile), and attested by
the manual or facsimile signature of the County Clerk of the
Issuer. A facsimile signature shall have the same force and
effect as if personally signed.
If any of the officers whose manual or facsimile signatures
shall be upon the Bonds shall cease to be such officers of the
Issuer before such Bonds shall have been actually authenticated
by the Trustee or delivered by the Issuer, such Bonds
nevertheless may be authenticated, issued and delivered with the
same force and effect as though the person or persons whose
signature shall be upon such Bonds had not ceased to be such
officer or officers of the Issuer; and also any such Bonds may be
signed and sealed on behalf of the Issuer by those persons who,
at the actual date of the execution of such Bond, shall be the
proper officers of the Issuer, although at the nominal date of
such Bonds any such person shall not have been such officer of
the Issuer.
SECTION 2.6. Authentication; Authenticating Agent. No
Bond shall be valid for any purpose until the Certificate of
Authentication substantially in the form set forth in Exhibit A
attached hereto has been duly executed in accordance herewith by
the Trustee, and such authentication shall be conclusive proof
that such Bond has been duly authenticated and delivered under
this Indenture and that the owner thereof is entitled to the
benefit of the trust hereby created.
If the Bond Registrar is other than the Trustee, the Trustee
may appoint the Bond Registrar as an Authenticating Agent with
the power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Bonds in
connection with the registration of transfers and exchanges under
Section 2.4 hereof, and the authentication and delivery of Bonds
by an Authenticating Agent pursuant to this Section shall, for
all purposes of this Indenture, be deemed to be the
authentication and delivery "by the Trustee".
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible as a Bond Registrar under Section 2.3, without
the execution or filing of any further act on the part of the
parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee, the Issuer and the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent, the Issuer and the Company. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section, the Trustee may,
with the consent of the Company (which shall not be unreasonably
withheld) appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Issuer, and shall mail
notice of such appointment to all owners of Bonds as the names
and addresses of such owners appear on the Bond Register.
SECTION 2.7. Payment of Principal and Interest; Interest
Rights Preserved. (a) The principal or redemption price of any
Bond shall be payable in any coin or currency of the United
States of America which, at the time of payment, is legal tender
for the payment of public or private debts upon presentation and
surrender of such Bond to the Principal Office of the Paying
Agent or the Principal Office of the Co-Paying Agent. The
principal or redemption price of (and related interest on) the
Bonds shall be payable in immediately available funds. Such
payment shall be made to the Registered Owner of the Bond so
delivered, as shown on the registration books maintained by the
Bond Registrar.
(b) Subject to the further provisions of Article III
hereof, each Bond shall accrue interest and be payable as to
interest as follows:
(i) Each Bond shall accrue interest (at the applicable
rate determined pursuant to Article III hereof) (A) from the
date of authentication, if authenticated on an Interest
Payment Date to which interest has been paid or duly
provided for, or (B) from the last preceding Interest
Payment Date to which interest has been paid in full or duly
provided for (or the Issue Date if no interest thereon has
been paid or duly provided for) in all other cases.
(ii) Subject to the provisions of paragraph (c) below,
the interest due on any Bond on any Interest Payment Date
(except on the Maturity Date) shall be payable for the
immediately preceding Interest Period and will be paid to
the Registered Owner of such Bond as shown on the
registration books kept by the Bond Registrar as of the
Regular Record Date. The amount of interest so payable on
any Interest Payment Date shall be computed (A) on the basis
of a 365- or 366-day year, as appropriate, for the actual
number of days elapsed during Daily Rate Periods, Commercial
Paper Rate Periods or Weekly Rate Periods, (B) on the basis
of a 360-day year for the number of days actually elapsed
during Dutch Auction Rate Periods, and (C) on the basis of a
360-day year of twelve 30-day months during Multiannual Rate
Periods.
(iii) So long as the Bonds are held in book-entry-
only form, all payments of interest on the Bonds shall be
paid to the Registered Owners entitled thereto in
immediately available funds by wire transfer to a bank
within the continental United States or deposited to a
designated account if such account is maintained with the
Paying Agent as directed by the Registered Owner in writing
or as otherwise directed in writing; otherwise all payments
of interest on the Bonds (except on the Maturity Date or at
redemption of the Bonds) shall be paid by check mailed to
the address of the Registered Owner, as such address shall
appear on the books maintained by the Bond Registrar.
(iv) Interest accrued during any Commercial Paper Rate
Period or due on the Maturity Date or at redemption of the
Bonds shall be paid only upon presentation and surrender of
Bonds and shall be paid to the Registered Owner of the Bond
so delivered, as shown on the registration books maintained
by the Bond Registrar.
(c) Any interest on any Bond which is payable, but is not
punctually paid or provided for, on any Interest Payment Date
(except on the Maturity Date) and within any applicable grace
period (herein called "Defaulted Interest") shall forthwith cease
to be payable to the owner of such Bond on the relevant Regular
Record Date by virtue of having been such owner, and such
Defaulted Interest shall be paid to the person in whose name the
Bond is registered at the close of business on a Special Record
Date to be fixed by the Trustee, such date to be no more than 15
nor fewer than 10 days prior to the date of proposed payment.
The Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Bondholder at his
address as it appears in the Bond Register, not fewer than 10
days prior to such Special Record Date.
Subject to the foregoing provisions of this Section, each
Bond delivered under this Indenture upon registration of transfer
of or exchange for or in lieu of any other Bond shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Bond.
SECTION 2.8. Persons Deemed Owners. The Issuer, the
Trustee, any Paying Agent, the Auction Agent, the Bond Registrar
and any Authenticating Agent may deem and treat the person in
whose name any Bond is registered as the absolute owner thereof
(whether or not such Bond shall be overdue and notwithstanding
any notation of ownership or other writing thereon made by anyone
other than the Issuer, the Trustee, any Paying Agent, the Bond
Registrar or the Authenticating Agent) for the purpose of
receiving payment of or on account of the principal of and
(subject to Section 2.7) interest on, such Bond, and for all
other purposes, and neither the Issuer, the Trustee, any Paying
Agent, the Auction Agent, the Bond Registrar, the Remarketing
Agent nor the Authenticating Agent shall be affected by any
notice to the contrary. All such payments so made to any such
Registered Owner shall be valid and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Bond.
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Bonds.
(a) If any Bond shall become mutilated, lost, stolen or
destroyed, the affected Bondholder shall be entitled to the
issuance of a substitute Bond only as follows:
(A) in the case of a lost, stolen or destroyed Bond,
the Bondholder shall (i) provide notice of the loss, theft
or destruction to the Trustee within a reasonable time after
the Bondholder receives notice of the loss, theft or destruc
tion, (ii) request the issuance of a substitute Bond and
(iii) provide evidence, satisfactory to the Trustee, of the
ownership and the loss, theft or destruction of the affected
Bond;
(B) in the case of a mutilated Bond, the Bondholder
shall surrender the Bond to the Trustee for cancellation;
and
(C) in all cases, the Bondholder shall provide indem
nity against any and all claims arising out of or otherwise
related to the issuance of substitute Bonds pursuant to this
Section 2.9 satisfactory to the Issuer, the Trustee and the
Company.
Upon compliance with the foregoing, a new Bond of like tenor
and denomination, executed by the Issuer, shall be authenticated
by the Trustee or Authenticating Agent and delivered to the
Bondholder, all at the expense of the Bondholder to whom the
substitute Bond is delivered.
Notwithstanding the foregoing, the Trustee or Authenticating
Agent shall not be required to authenticate and deliver any
substitute Bond for a Bond which has been called for redemption
or which has matured or is about to mature or which shall have
been purchased pursuant to Section 4.3 hereof and, in any such
case, the principal, redemption price or Purchase Price and
interest then due or becoming due shall be paid by the Trustee or
a Paying Agent in accordance with the terms of the mutilated,
lost, stolen or destroyed Bond without substitution therefor.
(b) Every substituted Bond issued pursuant to this Section
shall constitute an additional contractual obligation of the
Issuer and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Bonds duly issued hereunder unless the Bond alleged to have been
destroyed, lost or stolen shall be at any time enforceable by a
bona fide purchaser for value without notice. In the event the
Bond alleged to have been destroyed, lost or stolen shall be
enforceable by anyone, the Issuer may recover the substitute Bond
from the Bondholder to whom it was issued or from anyone taking
under the Bondholder except a bona fide purchaser for value
without notice.
(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Bonds, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or investment or other
securities without their surrender.
SECTION 2.10. Temporary Bonds. Pending preparation of
definitive Bonds, or by agreement with the purchasers of all
Bonds, the Issuer may issue, and, upon its request, the Trustee
or Authenticating Agent shall authenticate, in lieu of definitive
Bonds one or more temporary printed or typewritten Bonds of
substantially the tenor recited above in any denomination
authorized under Section 2.2. Upon request of the Issuer, the
Trustee shall authenticate definitive Bonds in exchange for and
upon surrender of an equal principal amount of temporary Bonds.
Until so exchanged, temporary Bonds shall have the same rights,
remedies and security hereunder as definitive Bonds.
SECTION 2.11. Cancellation of Surrendered Bonds. Bonds
surrendered for payment, redemption, transfer or exchange and
Bonds surrendered to the Trustee by the Issuer or by the Company
for cancellation shall be cancelled by the Trustee and a
certificate of cancellation shall be delivered to the Company.
SECTION 2.12. Limited Obligation. The Bonds, together with
interest thereon, shall be payable from the Trust Estate and
shall be a valid claim of the holders thereof only against the
Trust Estate, including, without limitation, the Revenues pledged
to the Bonds, which Revenues are pledged and assigned for the
equal and ratable payment of the Bonds (principal, premium, if
any, and interest) and shall be used for no other purpose than to
pay the principal of, premium, if any, and interest on the Bonds,
except as may be otherwise expressly authorized in this
Indenture. The Bonds (including premium, if any) and interest
thereon shall not constitute an indebtedness or pledge of the
general credit of the Issuer or the State, within the meaning of
any constitutional or statutory provision and shall never be paid
in whole or in part out of any funds raised or to be raised by
taxation or any other funds of the Issuer.
SECTION 2.13. Book-Entry Registration of Bonds. The Bonds
shall be initially registered in the name of Cede & Co., as
nominee for DTC, as registered owner of the Bonds, and held in
the custody of DTC. The Issuer, the Trustee, the Paying Agent,
the Auction Agent, the Tender Agent and the Remarketing Agent
acknowledge that the Issuer has executed and delivered the Letter
of Representations and that the terms and provisions of the
Letter of Representations shall govern in the event of any
inconsistency between the provisions of this Indenture and the
Letter of Representations, including, without limitation, the
terms and provisions thereof relating to payment of the
principal, premium, if any, interest, or Purchase Price with
respect to the Bonds. A single bond certificate for the Bonds
will be issued and delivered to DTC. The beneficial owners will
not receive physical delivery of Bond certificates except as
provided in the Letter of Representations. Beneficial owners are
expected to receive a written confirmation of their purchase
providing details of each Bond acquired. For so long as DTC
shall continue to serve as Securities Depository for the Bonds as
provided herein, all transfers of beneficial ownership interests
will be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial
ownership of Bonds is to receive, hold or physically deliver any
Bond certificate.
For every transfer and exchange of the Bonds, the beneficial
owner may be charged a sum sufficient to cover such beneficial
owner's allocable share of any tax, fee or other governmental
charge that may be imposed in relation thereto.
The Issuer, the Company, the Trustee and the Paying Agent
will recognize DTC or its nominee as the Bondholder for all
purposes under this Indenture, including notices and voting.
Neither the Issuer nor the Trustee are responsible for the
performance by DTC of any of its obligations, including, without
limitation, the payment of moneys received by DTC, the forwarding
of notices received by DTC or the giving of any consent or proxy
in lieu of consent.
Whenever during the term of the Bonds the beneficial
ownership thereof is determined by a book entry at DTC, the
requirements of this Indenture of holding, delivering or
transferring Bonds shall be deemed modified to require the
appropriate person to meet the requirements of DTC as to
registering or transferring the book entry to produce the same
effect.
If at any time DTC ceases to hold the Bonds, all references
herein to DTC shall be of no further force or effect.
Notwithstanding the foregoing, while the Bonds are accruing
interest at a Dutch Auction Rate and are issued in book-entry
only form, the provisions of Section 3.4(g) shall control in the
event of any inconsistency.
ARTICLE III
INTEREST RATES ON THE BONDS
SECTION 3.1. Initial Interest Rate. All Bonds shall
accrue interest initially at a Dutch Auction Rate of 3.25% per
annum. The first Auction shall occur on June 28, 1999 and the
first Interest Payment Date is June 29, 1999. The Bonds shall
bear interest at the Dutch Auction Rate unless and until the Rate
Period for the Bonds is converted to a different Rate Period or
until the Maturity Date.
SECTION 3.2. Determination of Interest Rates.
(a) Determination by Remarketing Agent.
(i) For any Rate Period other than a Dutch Auction
Rate Period, the Interest Rate shall be determined by the
Remarketing Agent as the rate of interest which, in the
judgment of the Remarketing Agent, would cause the Bonds to
have a market value as of the date of determination equal to
the principal amount thereof, taking into account prevailing
market conditions, and with respect to Commercial Paper
Rates, the Remarketing Agent shall determine the Commercial
Paper Rate and the Commercial Paper Rate Period for each
Bond at such rate and for such period as it deems advisable
in order to minimize the net interest cost on the Bonds,
taking into account prevailing market conditions.
(ii) In the event the Remarketing Agent fails for any
reason to determine or notify the Trustee of the Interest
Rate for any Rate Period, other than a Dutch Auction Rate
Period:
(1) The Interest Rate then in effect for Bonds
that accrue interest at Daily Rates will remain in
effect from day to day until the Trustee is notified of
a new Daily Rate determined by the Remarketing Agent.
(2) The Interest Rate then in effect for Bonds
that accrue interest at Weekly Rates will remain in
effect from week to week until the Trustee is notified
of a new Weekly Rate determined by the Remarketing
Agent.
(3) The Interest Rate for any Bond that accrues
interest at Commercial Paper Rates and for which a
Commercial Paper Rate and Commercial Paper Rate Period
is not determined shall be equal to 100% of the prime
commercial paper rate (30 days) shown in the table
captioned "short-term tax-exempt yields" in the edition
of The Bond Buyer published on the day on which such
rate is determined or, if such rate is not published on
that day, the most recent publication of such rate, and
the Rate Period for such Bond shall extend to the day
preceding the next Business Day, until the Trustee is
notified of a new Commercial Paper Rate and Commercial
Paper Rate Period determined for such Bond by the
Remarketing Agent.
(4) The Interest Rate then in effect for Bonds
that accrue interest at the Multiannual Rate will be
automatically converted to Commercial Paper Rates with
Commercial Paper Rate Periods of one Business Day until
the Trustee is notified of a new Interest Rate and Rate
Period by the Company and the Remarketing Agent.
(iii) All determinations of Interest Rates pursuant
to this Section shall be conclusive and binding upon the
Issuer, the Company, the Trustee, the Paying Agent, any Co-
Paying Agent and the Owners of the Bonds to which such rates
are applicable.
(iv) The Interest Rate in effect for Bonds during any
Rate Period shall be available to Owners on the date such
Interest Rate is determined, between 1:00 p.m. and 5:00
p.m., New York City time, from the Remarketing Agent or the
Trustee at their principal offices and shall also be
communicated by the Remarketing Agent to the Company and to
the Bond Insurer by telephonic or Electronic notice.
(v) During any transitional period for a conversion
from a Commercial Paper Rate Period to a Dutch Auction Rate,
Daily Rate or Weekly Rate Period in which the Remarketing
Agent is setting different Commercial Paper Rate Periods in
order to effect an orderly transition of such conversion,
Bonds bearing interest at the Commercial Paper Rate shall be
governed by the provisions of this Indenture applicable to
Commercial Paper Rate Periods and Commercial Paper Rates,
and Bonds bearing interest at the Dutch Auction Rate, Daily
Rate or Weekly Rate, as applicable, shall be governed by the
provisions of this Indenture applicable to such Daily Rates
and Daily Rate Periods or Weekly Rates and Weekly Rate
Periods, as the case may be.
(b) Commercial Paper Rates. The Bonds shall bear interest
at the Commercial Paper Rate for each Commercial Paper Rate
Period as determined in accordance with this subsection (b). The
Commercial Paper Rate borne by the Bonds shall not exceed 9.5%
per annum. Notwithstanding the foregoing, no Commercial Paper
Rate Period may be established which exceeds 270 days or, if the
Remarketing Agent has given or received notice of any conversion
to a Multiannual Rate Period, the remaining number of days prior
to the Conversion Date or, if the Remarketing Agent has given or
received notice of any conversion to a Dutch Auction Rate, Daily
Rate or Weekly Rate, the length of each Commercial Paper Rate
Period for each Bond shall be determined by the Remarketing Agent
to be either (A) that length of period that, as soon as possible,
shall enable the Commercial Paper Rate Periods for all Bonds to
end on the day before the Conversion Date, or (B) that length of
period which, based on the Remarketing Agent's judgment, will
best promote an orderly transition to the next Rate Period.
Commercial Paper Rates on, and Commercial Paper Rate Periods
for, the Bonds shall be determined as follows:
(i) The Commercial Paper Rate on a Bond for a specific
Commercial Paper Rate Period shall be the rate established
by the Remarketing Agent no later than 1:00 p.m. (New York
City time) on the first Business Day of that Commercial
Paper Rate Period as the minimum rate of interest necessary,
in the judgment of the Remarketing Agent, to enable the
Remarketing Agent to sell such Bond on that day at a price
equal to the principal amount thereof, and such Commercial
Paper Rate shall be provided to the Trustee and to the Bond
Insurer by the Remarketing Agent by telephonic or Electronic
notice by 1:00 p.m., New York City time, on that same day.
Unless the Bonds are in book-entry form, the Trustee will
deliver certificates for such Bonds to the Remarketing Agent
not later than 2:45 p.m., New York City time, on such
Business Day against receipt of payment therefor.
(ii) Each Commercial Paper Rate Period applicable to a
Bond shall be determined by the Remarketing Agent on or
prior to the first Business Day of such Commercial Paper
Rate Period (but no later than 1:00 p.m. (New York City
time) on the first Business Day of the Commercial Paper Rate
Period) as that period which will, in the judgment of the
Remarketing Agent, produce the greatest likelihood of the
lowest net interest cost during the term of the Bonds;
provided that each Commercial Paper Rate Period shall be
from one to 270 days in length, shall commence on a Business
Day, shall end on a day preceding a Business Day or the day
preceding the Maturity Date, and in any event shall end no
later than the day preceding the Maturity Date. Each Bond
may bear interest at a different Commercial Paper Rate and
for a Commercial Paper Rate Period different from any other
Bond. The Commercial Paper Rate Period shall be provided to
the Trustee and the to Bond Insurer by the Remarketing Agent
by telephonic or Electronic notice by 1:00 p.m., New York
City time, on that same day.
The Remarketing Agent may, in the reasonable exercise
of its judgment, (1) determine Commercial Paper Rate Periods
that result in Commercial Paper Rates on the Bonds that are
higher than would be borne by Bonds with shorter Commercial
Paper Rate Periods in order to increase the likelihood of
achieving the lowest net interest cost during the term of
the Bonds by assuring the availability of such Commercial
Paper Rates for the longer Commercial Paper Rate Periods,
and (2) in view of the uncertainties involved in
anticipating Commercial Paper Rates, establish different
Commercial Paper Rate Periods for Bonds on the same date in
order to achieve an average of Commercial Paper Rate Periods
that, in the reasonable exercise of its judgment, is most
likely to achieve the lowest net interest cost during the
term of the Bonds.
The determination of the Commercial Paper Rate Periods
by the Remarketing Agent will be based upon the relative
market yields of Bonds bearing interest at a Commercial
Paper Rate and other securities that bear interest at a
variable rate or at fixed rates that, in the reasonable
exercise of the judgment of the Remarketing Agent, are
otherwise comparable to the Bonds, or any fact or
circumstance relating to the Bonds or affecting the market
for the Bonds or affecting such other comparable securities
in a manner that, in the reasonable exercise of the judgment
of the Remarketing Agent, will affect the market for the
Bonds. The Remarketing Agent, in its discretion, may
consider such information and resources as it deems
appropriate in making the determinations described in this
paragraph, including consultations with the Company, but the
Remarketing Agent's determination of the Commercial Paper
Rate Period for each Bond will be based solely upon the
reasonable exercise of the Remarketing Agent's judgment.
(c) Daily Rates. A Daily Rate shall be established for
each Daily Rate Period as follows:
(i) Daily Rate Periods shall commence on a Daily Rate
Conversion Date which shall be a Business Day and
thereafter, prior to the next Conversion Date, on each
Business Day thereafter until the Rate Period for the Bonds
is converted to another Rate Period and shall extend to, but
not include, the next succeeding Business Day.
(ii) The Daily Rate for each Daily Rate Period shall be
effective from and including the commencement date thereof
and shall remain in effect to, but not including, the next
succeeding Business Day. Each such Daily Rate shall be
determined not later than 10:30 a.m., New York City time, on
the first Business Day of the Daily Rate Period to which it
relates and provided to the Trustee and to the Bond Insurer
by the Remarketing Agent by Electronic notice by 12:00 noon,
New York City time, on that same day; provided that no
notice need be given if the Daily Rate then in effect is to
be the Daily Rate for the next Daily Rate Period. The Daily
Rate borne by the Bonds shall not exceed 9.5% per annum.
(d) Weekly Rates. A Weekly Rate shall be determined for
each Weekly Rate Period as follows:
(i) Weekly Rate Periods shall commence on a Wednesday
and end on Tuesday of the following week, or, if earlier,
the day preceding the Maturity Date, and each Weekly Rate
Period shall be followed by another Weekly Rate Period until
the Rate Period of the Bonds is converted to another Rate
Period or until the Maturity Date; provided that (A) in the
case of a conversion to a Weekly Rate Period from a differ
ent Rate Period, the Weekly Rate Period shall commence on
the Weekly Rate Conversion Date and shall end on Tuesday of
the following week, or, if earlier, the day preceding the
Maturity Date; and (B) in the case of a conversion from a
Weekly Rate Period to a different Rate Period, the last
Weekly Rate Period prior to conversion shall end on the last
day immediately preceding the Conversion Date to the new
Rate Period.
(ii) The Weekly Rate for each Weekly Rate Period shall
be effective from and including the commencement date of
such period and shall remain in effect through and including
the last day thereof. Each such Weekly Rate shall be deter
mined by the Remarketing Agent not later than 10:00 a.m.,
New York City time, on the commencement date of the Weekly
Rate Period to which it relates and provided to the Trustee
and to the Bond Insurer by the Remarketing Agent by written,
telephonic or Electronic notice by 12:00 noon, New York City
time, on such date. The Weekly Rate borne by the Bonds
shall not exceed 9.5% per annum.
(e) Multiannual Rates. A Multiannual Rate shall be
determined for each Multiannual Rate Period as follows:
(i) Each Multiannual Rate Period shall be followed by
another Multiannual Rate Period of the same duration until
the Rate Period for the Bonds is converted to a different
Rate Period or a Multiannual Rate Period of a different
duration or until the Maturity Date.
(ii) Multiannual Rate Periods shall (A) remain in
effect for a term of twelve (12) calendar months or any
whole multiple thereof selected by the Company, (B) commence
on a Multiannual Rate Conversion Date or the commencement
date of the following Multiannual Rate Period of the same
duration, and (C) end on the day preceding either the
commencement date of the following Multiannual Rate Period,
the Conversion Date on which a different Rate Period shall
become effective or the Maturity Date.
(iii) The Multiannual Rate for each such
Multiannual Rate Period shall be determined not later than
12:00 noon, New York City time, on the Business Day immedi
ately preceding the commencement date of the Multiannual
Rate Period to which it relates and provided to the Trustee
and to the Bond Insurer by the Remarketing Agent by written,
telephonic or Electronic notice by the close of business on
such Business Day. The Multiannual Rate borne by the Bonds
shall not exceed 9.5% per annum.
The Multiannual Rate for each Multiannual Rate Period
shall be effective from and including the commencement date
of such period and remain in effect through and including
the last day thereof.
(f) Dutch Auction Rates. The Dutch Auction Rates, the
Dutch Auction Rate Periods and the Auction Periods shall be
determined and shall commence and end on the days determined in
accordance with Section 3.4 hereof.
SECTION 3.3. Conversions Between Rate Periods. The
Company may elect to convert the Bonds from one Rate Period to
another as follows:
(a) Conversion Dates.
(i) If the conversion is from Commercial Paper Rate
Periods, the Conversion Date, if the Bonds are being
converted to a Multiannual Rate, must be the date on which
interest is payable on all of the Bonds accruing interest at
Commercial Paper Rates, and if the conversion is from a
Commercial Paper Rate Period to a Daily Rate or Weekly Rate,
there may be more than one Conversion Date in accordance
with Section 3.2(b); however, the Conversion Date with
respect to each Bond must be the date on which interest at
the Commercial Paper Rate is payable on such Bonds.
(ii) If the conversion is from a Daily or Weekly Rate
Period, the Conversion Date must be an Interest Payment Date
on which interest is payable for the Daily or Weekly Rate
Period from which the conversion is made.
(iii) If the conversion is from a Multiannual Rate
Period, the Conversion Date may be the day following the end
of the Multiannual Rate Period or any date on which the
Bonds are also subject to optional redemption pursuant to
Section 8.1 hereof.
(iv) If the conversion is from a Dutch Auction Rate
Period, the Conversion Date must be the last Interest
Payment Date in respect of that Dutch Auction Rate Period.
(b) Notices by Company. The Company shall give notice of
any proposed conversion to the Trustee, the Bond Insurer and the
Remarketing Agent not fewer than three Business Days prior to the
date the notice to Bondholders must be given pursuant to Section
3.3(c) of the proposed conversion from a Commercial Paper, Daily,
Weekly, Dutch Auction or Multiannual Rate Period or of a
conversion of the Multiannual Rate Period to a Multiannual Rate
Period of a different duration (other than a conversion pursuant
to Section 3.2(a)(ii)(4) of this Indenture).
(c) Notices by Trustee. The Trustee shall give notice by
first class mail, of the proposed conversion to the Registered
Owners of Bonds accruing interest at Dutch Auction, Commercial
Paper, Daily or Weekly Rates not less than 15 days before the
proposed Conversion Date and to Registered Owners of Bonds
accruing interest at a Multiannual Rate not less than 30 days
before the proposed Conversion Date (other than a conversion
pursuant to Section 3.2(a)(ii)(4) of this Indenture). Such
notice shall state:
(i) the proposed Conversion Date and the proposed
Interest Rate (i.e. whether the Bonds will bear interest at
a Daily Rate, Weekly Rate, Commercial Paper Rate, Dutch
Auction Rate or Multiannual Rate and the duration of the
Multiannual Rate Period) to be effective on such date;
(ii) that the Bonds will be subject to mandatory tender
for purchase on the Conversion Date (except in the case of
conversions between Daily and Weekly Rate Periods);
(iii) the conditions, if any, to the conversion
pursuant to subsection (d) below;
(iv) if the Bonds are in certificated form, information
with respect to required delivery of Bond certificates and
payment of the Purchase Price; and
(v) the new Interest Payment Date or Dates and Regular
Record Dates.
(d) Conditions to Conversion. No conversion of Rate
Periods will become effective unless:
(i) if the conversion is from Commercial Paper Rate
Periods, the Trustee has received, prior to the date on
which notice of the proposed conversion is required to be
given to Registered Owners, written confirmation from the
Remarketing Agent that it has not established and will not
establish any Commercial Paper Rate Periods extending beyond
the day before the Conversion Date (or Conversion Dates if
the Remarketing Agent will be establishing Commercial Paper
Rate Periods pursuant to Section 3.2(b)); and
(ii) if the conversion is from a Dutch Auction,
Commercial Paper, Daily or Weekly Rate Period to a
Multiannual Rate Period, or from a Multiannual Rate Period
to a Dutch Auction, Commercial Paper, Daily or Weekly Rate
Period (other than a conversion pursuant to Section
3.2(a)(ii)(4) of this Indenture), the Trustee and the Bond
Insurer has been provided, no later than one day before the
Conversion Date, with a Favorable Opinion of Bond Counsel
with respect to the conversion.
SECTION 3.4. Dutch Auction Rate Periods; Dutch Auction
Rate: Auction Period.
(a) General.
(i) During any Dutch Auction Rate Period, the Bonds
shall bear interest at the Dutch Auction Rate determined as
set forth in this subsection (a) and in subsections (b),
(c), (d), (e) and (f) of this Section 3.4. The Dutch Auction
Rate for any initial Auction Period immediately after any
conversion to a Dutch Auction Rate Period shall be the rate
of interest per annum determined and certified to the
Trustee (with a copy to the Bond Registrar, Paying Agent and
the Company) by the Market Agent on a date not later than
the effective date of such conversion as the minimum rate of
interest which, in the opinion of the Market Agent, would be
necessary as of the date of such conversion to market Bonds
in a secondary market transaction at a price equal to the
principal amount thereof; provided that such interest rate
shall not exceed 9.5% per annum. Except as otherwise
provided in Section 3.1 hereof with respect to the initial
Auction Period and in this Section 3.4 for any other Auction
Period, the Dutch Auction Rate shall be the rate of interest
per annum that results from implementation of the Dutch
Auction Procedures; provided that such interest rate shall
not exceed 9.5% per annum. Except as provided below, if on
any Auction Date for any reason an Auction is not held, the
Dutch Auction Rate for the next succeeding Auction Period
shall equal the Maximum Dutch Auction Rate on and as of such
Auction Date. Determination of the Dutch Auction Rate
pursuant to the Dutch Auction Procedures shall be suspended
upon the occurrence of a Failure to Deposit or an Event of
Default described in Section 10.1(a) or (b) hereof. Upon
the occurrence of a Failure to Deposit or an Event of
Default described in Section 10.1(a) or (b) hereof on any
Auction Date, no Auction will be held, all Submitted Bids
and Submitted Sell Orders shall be rejected, the existence
of Sufficient Clearing Bids shall be of no effect and the
Dutch Auction Rate shall be equal to the Overdue Rate as
determined on and as of the immediately preceding Auction
Date for each Auction Period, commencing after the
occurrence of such Failure to Deposit or Event of Default to
and including the Auction Period, if any, during which or
commencing less than two Business Days after the earlier of
(A) such Failure to Deposit or Event of Default has been
cured or waived and (B) the first date on which all of the
following conditions shall have been satisfied:
(I) No default shall have occurred and be
continuing under the Bond Insurance Policy (the
satisfaction of such condition to be conclusively
evidenced, absent manifest error, to each of the
Trustee and the Auction Agent by a certificate of a
duly authorized officer of the Bond Insurer to such
effect delivered to such entity);
(II) the Bond Insurer shall have delivered to the
Auction Agent an instrument, satisfactory in form and
substance to the Auction Agent, containing (x) an
unconditional agreement of the Bond Insurer to furnish
to the Auction Agent amounts sufficient to pay all fees
of the Broker-Dealers, as provided in the Broker-Dealer
Agreements, and of the Auction Agent, (y) such other
agreements and representations as the Auction Agent
shall reasonably require and (z) a direction not to
suspend, or to resume, the implementation of the Dutch
Auction Procedures, as the case may be; and
(III) the Auction Agent shall have advised the
Trustee that the Auction Agent has been directed by the
Bond Insurer not to suspend, or to resume, the
implementation of the Dutch Auction Procedures.
The Dutch Auction Rate for any Auction Period commencing
after certificates representing the Bonds have been
distributed pursuant to Section 3.4(g) hereof shall be equal
to the Maximum Dutch Auction Rate on each Auction Date.
(ii) Auction Periods may be changed pursuant to Section
3.4(b) hereof at any time unless a Failure to Deposit or an
Event of Default has occurred and has not been cured or
waived. Each Auction Period shall be a Standard Auction
Period unless a different Auction Period is established
pursuant to Section 3.4(b) hereof and each Auction Period
which immediately succeeds an Auction Period that is not a
Standard Auction Period shall be a Standard Auction Period
unless a different Auction Period is established pursuant to
Section 3.4(b) hereof.
(iii) The Market Agent shall from time to time
increase any or all of the percentages set forth in the
definition of "Applicable Percentage" or the percentage set
forth in the definition of "Minimum Dutch Auction Rate" in
order that such percentages take into account any amendment
to the Code or other statute enacted by the Congress of the
United States or any temporary, proposed or final regulation
promulgated by the United States Treasury, after the date
hereof which (a) changes or would change any deduction,
credit or other allowance allowable in computing liability
for any federal tax with respect to, or (b) imposes or would
impose or increases or would increase any federal tax
(including, but not limited to, preference or excise taxes)
upon, any interest on a governmental obligation the interest
on which is excludable from federal gross income under
Section 103 of the Code. The Market Agent shall give notice
of any such increase by means of a written notice delivered
at least two Business Days prior to the Auction Date on
which such increase is proposed to be effective to the
Trustee, the Auction Agent, the Company and DTC.
(b) Dutch Auction Rate Period: Change of Auction Period by
Issuer.
(i) During a Dutch Auction Rate Period, the Issuer, at
the direction of the Company, may change the length of a
single Auction Period or the Standard Auction Period by
means of a written notice delivered at least 20 days but not
more than 60 days prior to the Auction Date for such Auction
Period to the Trustee, the Bond Insurer, the Auction Agent,
the Company and DTC. Any Auction Period or Standard Auction
Period established pursuant to this Section 3.4(b) may not
exceed 364 days in duration. If such Auction Period will be
of less than 35 days, such notice shall be effective only if
it is accompanied by a written statement of the Registrar
and Paying Agent, the Trustee, the Auction Agent and DTC to
the effect that they are capable of performing their duties
hereunder and under the Auction Agent Agreement with respect
to such Auction Period. The length of an Auction Period or
the Standard Auction Period may not be changed pursuant to
this Section 3.4(b) unless Sufficient Clearing Bids existed
at both the Auction immediately preceding the date the
notice of such change was given and the Auction immediately
preceding such changed Auction Period.
(ii) The change in length of an Auction Period or the
Standard Auction Period shall take effect only if (A) the
Trustee and the Auction Agent receive, by 11:00 a.m. (New
York City time) on the Business Day immediately preceding
the Auction Date for such Auction Period, a certificate from
the Company on behalf of the Issuer, by telecopy or similar
means, authorizing the change in the Auction Period or the
Standard Auction Period, which shall be specified in such
certificate, and confirming that Bond Counsel expects to be
able to give an opinion on the first day of such Auction
Period to the effect that the change in the Auction Period
is authorized by this Indenture, is permitted under the Act
and will not have an adverse effect on the exclusion of
interest on the Bonds from gross income for federal income
tax purposes, (B) the Trustee shall not have delivered to
the Auction Agent by 12:00 noon (New York City time) on the
Auction Date for such Auction Period notice that a Failure
to Deposit has occurred, (C) Sufficient Clearing Bids exist
at the Auction on the Auction Date for such Auction Period,
and (D) the Trustee, the Bond Insurer and the Auction Agent
receive by 9:30 a.m. (New York City time) on the first day
of such Auction Period, an opinion of Bond Counsel to the
effect that the change in the Auction Period is authorized
by this Indenture, is permitted under the Act and will not
have an adverse effect on the exclusion of interest on the
Bonds from gross income for federal income tax purposes. If
the condition referred to in (A) above is not met, the Dutch
Auction Rate for the next succeeding Auction Period shall be
determined pursuant to the Dutch Auction Procedures and the
next succeeding Auction Period shall be a Standard Auction
Period. If any of the conditions referred to in (B), (C) or
(D) above is not met, the Dutch Auction Rate for the next
succeeding Auction Period shall equal the Maximum Dutch
Auction Rate as determined as of the Auction Date for such
Standard Auction Period.
(c) Dutch Auction Rate Period: Orders by Existing Holders
and Potential Holders.
(i) Subject to the provisions of Section 3.4(a)
hereof, Auctions shall be conducted on each Auction Date in
the manner described in this Section 3.4(c) and in Sections
3.4(d), (e) and (f) hereof prior to the Submission Deadline
on each Auction Date during a Dutch Auction Rate Period:
(A) each Existing Holder may submit to the Broker-
Dealer information as to:
(x) the principal amount of Bonds, if any,
held by such Existing Holder which such Existing
Holder desires to continue to hold without regard
to the Dutch Auction Rate for the next succeeding
Auction Period;
(y) the principal amount of Bonds, if any,
held by such Existing Holder which such Existing
Holder offers to sell if the Dutch Auction Rate
for the next succeeding Auction Period shall be
less than the rate per annum specified by such
Existing Holder; and
(z) the principal amount of Bonds, if any,
held by such Existing Holder which such Existing
Holder offers to sell without regard to the Dutch
Auction Rate for the next succeeding Auction
Period;
(B) one or more Broker-Dealers may contact
Potential Holders to determine the principal amount of
Bonds which each such Potential Holder offers to
purchase if the Dutch Auction Rate for the next
succeeding Auction Period shall not be less than the
interest rate per annum specified by such Potential
Holder.
For the purposes hereof, the communication to a Broker-
Dealer of information referred to in clause (A)(x), (A)(y)
or (A)(z) or clause (B) above is hereinafter referred to as
an "Order" and each Existing Holder and Potential Holder
placing an Order is hereinafter referred to as a "Bidder";
an Order containing the information referred to in clause
(A)(x) above is hereinafter referred to as a "Hold Order";
an Order containing the information referred to in clause
(A)(y) or clause (B) above is hereinafter referred to as a
"Bid"; and an Order containing the information referred to
in clause (A)(z) above is hereinafter referred to as a "Sell
Order".
(ii) (A) Subject to the provisions of Section 3.4(d)
hereof, a Bid by an Existing Holder shall constitute an
irrevocable offer to sell:
(x) the principal amount of Bonds specified
in such Bid if the Dutch Auction Rate determined
pursuant to the Dutch Auction Procedures on such
Auction Date shall be less than the interest rate
per annum specified therein; or
(y) such principal amount or a lesser
principal amount of Bonds to be determined as set
forth in subsection (i)(D) of Section 3.4(f)
hereof if the Dutch Auction Rate determined
pursuant to the Dutch Auction Procedures on such
Auction Date shall be equal to the interest rate
per annum specified therein; or
(z) such principal amount if the interest
rate per annum specified therein shall be higher
than the Maximum Dutch Auction Rate or such
principal amount or a lesser principal amount of
Bonds to be determined as set forth in subsection
(ii)(C) of Section 3.4(f) hereof if such specified
rate shall be higher than the Maximum Dutch
Auction Rate and Sufficient clearing Bids do not
exist.
(B) Subject to the provisions of Section 3.4(d)
hereof, a sell Order by an Existing Holder shall
constitute an irrevocable offer to sell:
(y) the principal amount of Bonds specified
in such Sell Order; or
(z) such principal amount or a lesser
principal amount of Bonds as set forth in
subsection (ii)(C) of Section 3.4(f) hereof if
Sufficient Clearing Bids do not exist.
(C) Subject to the provisions of Section 3.4(d)
hereof, a Bid by a Potential Holder shall constitute an
irrevocable offer to purchase:
(y) the principal amount of Bonds specified
in such Bid if the Dutch Auction Rate determined
on such Auction Date shall be higher than the rate
specified therein; or
(z) such principal amount or a lesser
principal amount of Bonds as set forth in
subsection (i)(E) of Section 3.4(f) hereof if the
Dutch Auction Rate determined on such Auction Date
shall be equal to such specified rate.
(d) Dutch Auction Rate Period: Submission of Orders by
Broker-Dealers to Auction Agent.
(i) During a Dutch Auction Rate Period each Broker-
Dealer shall submit in writing to the Auction Agent prior to
the Submission Deadline on each Auction Date during the
Dutch Auction Rate Period, all Orders obtained by such
Broker-Dealer and shall specify with respect to each such
Order:
(A) the name of the Bidder placing such Order;
(B) the aggregate principal amount of Bonds that
are subject to such Order;
(C) to the extent that such Bidder is an Existing
Holder:
(x) the principal amount of Bonds, if any,
subject to any Hold Order placed by such Existing
Holder;
(y) the principal amount of Bonds, if any,
subject to any Bid placed by such Existing Holder
and the rate specified in such Bid; and
(z) the principal amount of Bonds, if any,
subject to any Sell Order placed by such Existing
Holder; and
(D) to the extent such Bidder is a Potential
Holder, the rate specified in such Potential Holder's
Bid.
(ii) if any rate specified in any Bid contains more
than three figures to the right of the decimal point, the
Auction Agent shall round such rate up to the next highest
one-thousandth (.001) of 1%.
(iii) If an Order or Orders covering all Bonds held
by an Existing Holder is not submitted to the Auction Agent
prior to the Submission Deadline, the Auction Agent shall
deem a Hold Order to have been submitted on behalf of such
Existing Holder covering the principal amount of Bonds held
by such Existing Holder and not subject to Orders submitted
to the Auction Agent. Neither the Issuer, the Company, the
Trustee nor the Auction Agent shall be responsible for any
failure of a Broker-Dealer to submit an Order to the Auction
Agent on behalf of any Existing Holder or Potential Holder.
(iv) If any Existing Holder submits through a Broker-
Dealer to the Auction Agent one or more Orders covering in
the aggregate more than the principal amount of Bonds held
by such Existing Holder, such Orders shall be considered
valid as follows and in the following order of priority:
(A) all Hold Orders shall be considered valid,
but only up to and including the principal amount of
Bonds held by such Existing Holder, and, if the
aggregate principal amount of Bonds subject to such
Hold Orders exceeds the aggregate principal amount of
Bonds held by such Existing Holder, the aggregate
principal amount of Bonds subject to each such Hold
Order shall be reduced pro rata to cover the aggregate
principal amount of Bonds held by such Existing Holder;
(B) (w) any Bid shall be considered valid up to
and including the excess of the principal amount
of Bonds held by such Existing Holder over the
aggregate principal amount of Bonds subject to any
Hold Orders referred to in paragraph (A) above;
(x) subject to clause (w) above, if more
than one Bid with the same rate is submitted on
behalf of such Existing Holder and the aggregate
principal amount of Bonds subject to such Bids is
greater than such excess, such Bids shall be
considered valid up to and including the amount of
such excess, and the principal amount of Bonds
subject to each Bid with the same rate shall be
reduced pro rata to cover the principal amount of
Bonds equal to such excess;
(y) subject to clauses (w) and (x) above, if
more than one Bid with different rates is
submitted on behalf of such Existing Holder, such
Bids shall be considered valid in the ascending
order of their respective rates until the highest
rate is reached at which such excess exists and
then at such rate up to and including the amount
of such excess; and
(z) in any such event, the aggregate
principal amount of Bonds, if any, subject to Bids
not valid under this paragraph (B) shall be
treated as the subject of a Bid by a Potential
Holder at the rate therein specified; and
(C) all Sell Orders shall be considered valid up
to and including the excess of the principal amount of
Bonds held by such Existing Holder over the aggregate
principal amount of Bonds subject to valid Hold Orders
referred to in paragraph (A) and valid Bids referred to
in paragraph (B) above.
(v) If more than one Bid for Bonds is submitted on
behalf of any Potential Holder, each Bid submitted shall be
a separate Bid for Bonds with the rate and principal amount
therein specified.
(vi) Any Bid or Sell Order submitted by an Existing
Holder covering an aggregate principal amount of Bonds not
equal to $100,000 or an integral multiple thereof shall be
rejected and shall be deemed a Hold Order. Any Bid submitted
by a Potential Holder covering an aggregate principal amount
of Bonds not equal to $100,000 or an integral multiple
thereof shall be rejected.
(vii) Any Bid submitted by an Existing Holder or
Potential Holder specifying a rate lower than the Minimum
Dutch Auction Rate shall be treated as a Bid specifying the
Minimum Dutch Auction Rate.
(viii) Any Order submitted in an Auction by a Broker-
Dealer to the Auction Agent prior to the Submission Deadline
on any Auction Date shall be irrevocable.
(e) Dutch Auction Rate Period: Determination of Sufficient
Clearing Bids, Winning Bid Rate and Dutch Auction Rate.
(i) Not earlier than the Submission Deadline on each
Auction Date during the Dutch Auction Rate Period, the
Auction Agent shall assemble all valid Orders submitted or
deemed submitted to it by the Broker-Dealers (each such
Order as submitted or deemed submitted by a Broker-Dealer
being hereinafter referred to as a "Submitted Hold Order," a
"Submitted Bid" or a "Submitted Sell Order," as the case may
be, or as a "Submitted Order") and shall determine:
(A) the excess of the total principal amount of
Bonds over the aggregate principal amount of Bonds
subject to Submitted Hold Orders (such excess being
hereinafter referred to as the "Available Auction
Bonds"); and
(B) from the Submitted Orders whether the
aggregate principal amount of Bonds subject to
Submitted Bids by Potential Holders specifying one or
more rates equal to or lower than the Maximum Dutch
Auction Rate exceeds or is equal to the sum of:
(y) the aggregate principal amount of Bonds
subject to Submitted Bids by Existing Holders
specifying one or more rates higher than the
Maximum Dutch Auction Rate; and
(z) the aggregate principal amount of Bonds
subject to Submitted Sell Orders,
(in the event of such excess or such equality exists
(other than because the sum of the principal amounts of
Bonds in clauses (y) and (z) above is zero because all
of the Bonds are subject to Submitted Hold Orders),
such Submitted Bids in clause (B) above are hereinafter
referred to collectively as "Sufficient Clearing
Bids"); and
(C) if Sufficient Clearing Bids exist, the lowest
rate specified in the Submitted Bids (the "Winning Bid
Rate") which if:
(y)(I) each Submitted Bid from Existing
Holders specifying such lowest rate and (II) all
other Submitted Bids from Existing Holders specify
ing lower rates were rejected, thus entitling such
Existing Holders to continue to hold the principal
amount of Bonds subject to such Submitted Bids;
and
(z)(I) each Submitted Bid from Potential
Holders specifying such lowest rate and (II) all
other Submitted Bids from Potential Holders
specifying lower rates were accepted,
would result in such Existing Holders described in
clause (y) above continuing to hold an aggregate
principal amount of Bonds which, when added to the
aggregate principal amount of Bonds to be purchased by
such Potential Holders described in clause (z) above,
would be not less than the Available Auction Bonds.
(ii) Promptly after the Auction Agent has made the
determinations pursuant to subsection (i) of this Section
3.4(e), the Auction Agent by telecopy, confirmed in writing,
shall advise the Company and the Trustee of the Maximum
Dutch Auction Rate and the Minimum Dutch Auction Rate and
the components thereof on the Auction Date and, based on
such determinations, the Dutch Auction Rate for the next
succeeding Auction Period as follows:
(A) if Sufficient Clearing Bids exist, that the
Dutch Auction Rate for the next succeeding Auction
Period therefor shall be equal to the Winning Bid Rate
so determined;
(B) If Sufficient Clearing Bids do not exist
(other than because all of the Bonds are the subject of
Submitted Hold Orders), that the Dutch Auction Rate for
the next succeeding Auction Period therefor shall be
equal to the Maximum Dutch Auction Rate; and
(C) if all of the Bonds are subject to Submitted
Hold Orders, that the Dutch Auction Rate for the next
succeeding Auction Period therefor shall be equal to
the Minimum Dutch Auction Rate.
(f) Dutch Auction Rate Period: Acceptance and Rejection of
Submitted Bids and Submitted Sell Orders and Allocation of
Auction Bonds. During a Dutch Auction Rate Period, Existing
Holders shall continue to hold the principal amounts of Bonds
that are subject to Submitted Hold Orders, and, based on the
determinations made pursuant to subsection (i) of Section 3.4(e)
hereof, the Submitted Bids and Submitted Sell Orders shall be
accepted or rejected and the Auction Agent shall take such other
actions as are set forth below:
(i) If Sufficient Clearing Bids have been made, all
Submitted Sell Orders shall be accepted and, subject to the
provisions of paragraphs (iv) and (v) of this Section
3.4(f), Submitted Bids shall be accepted or rejected as
follows in the following order of priority and all other
Submitted Bids shall be rejected:
(A) Existing Holders' Submitted Bids specifying
any rate that is higher than the Winning Bid Rate shall
be accepted, thus requiring each such Existing Holder
to sell the aggregate principal amount of Bonds subject
to such Submitted Bids;
(B) Existing Holders' Submitted Bids specifying
any rate that is lower than the Winning Bid Rate shall
be rejected, thus entitling each such Existing Holder
to continue to hold the aggregate principal amount of
Bonds subject to such Submitted Bids;
(C) Potential Holders' Submitted Bids specifying
any rate that is lower than the Winning Bid Rate shall
be accepted, thus requiring each such Potential Holder
to purchase the aggregate principal amount of Bonds
subject to such Submitted Bids;
(D) each Existing Holder's Submitted Bid
specifying a rate that is equal to the Winning Bid Rate
shall be rejected, thus entitling such Existing Holder
to continue to hold the aggregate principal amount of
Bonds subject to such Submitted Bid, unless the
aggregate principal amount of Bonds subject to all such
Submitted Bids shall be greater than the principal
amount of Bonds (the "remaining principal amount")
equal to the excess of the Available Auction Bonds over
the aggregate principal amount of the Bonds subject to
Submitted Bids described in paragraphs (B) and (C) of
this subsection (i), in which event such Submitted Bid
of such Existing Holder shall be rejected in part, and
such Existing Holder shall be entitled to continue to
hold the principal amount of Bonds subject to such
Submitted Bid, but only in an amount equal to the
principal amount of Bonds obtained by multiplying the
remaining principal amount by a fraction, the numerator
of which shall be the principal amount of Bonds held by
such Existing Holder subject to such Submitted Bid and
the denominator of which shall be the sum of the
principal amounts of Bonds subject to such Submitted
Bids made by all such Existing Holders that specified a
rate equal to the Winning Bid Rate; and
(E) each Potential Holder's Submitted Bid
specifying a rate that is equal to the Winning Bid Rate
shall be accepted but only in an amount equal to the
principal amount of Bonds obtained by multiplying the
excess of the Available Auction Bonds over the
aggregate principal amount of Bonds subject to
Submitted Bids described in paragraphs (B), (C) and (D)
of this subsection (i) by a fraction the numerator of
which shall be the aggregate principal amount of Bonds
subject to such Submitted Bid of such Potential Holder
and the denominator of which shall be the sum of the
principal amount of Bonds subject to Submitted Bids
made by all such Potential Holders that specified a
rate equal to the Winning Bid Rate.
(ii) If Sufficient Clearing Bids have not been made
(other than because all of the Bonds are subject to
Submitted Hold Orders), subject to the provisions of
subsection (iv) of this Section 3.4(f), Submitted Orders
shall be accepted or rejected as follows in the following
order of priority and all other Submitted Bids shall be
rejected:
(A) Existing Holders' Submitted Bids specifying
any rate that is equal to or lower than the Maximum
Dutch Auction Rate shall be rejected, thus entitling
each such Existing Holder to continue to hold the
aggregate principal amount of Bonds subject to such
Submitted Bids;
(B) Potential Holders' Submitted Bids specifying
any rate that is equal to or lower than the Maximum
Dutch Auction Rate shall be accepted, thus requiring
each such Potential Holder to purchase the aggregate
principal amount of Bonds subject to such Submitted
Bids; and
(C) each Existing Holder's Submitted Bid
specifying any rate that is higher than the Maximum
Dutch Auction Rate and the Submitted Sell Orders of
each Existing Holder shall be accepted, thus entitling
each Existing Holder that submitted any such Submitted
Bid or Submitted Sell Order to sell the Bonds subject
to such Submitted Bid or Submitted Sell Order, but in
both cases only in an amount equal to the aggregate
principal amount of Bonds obtained by multiplying the
aggregate principal amount of Bonds subject to
Submitted Bids described in paragraph (B) of this
subsection (ii) by a fraction, the numerator of which
shall be the aggregate principal amount of Bonds held
by such Existing Holder subject to such Submitted Bid
or Submitted Sell Order and the denominator of which
shall be the aggregate principal amount of Outstanding
Auction Bonds subject to all such Submitted Bids and
Submitted Sell Orders.
(iii) If all Bonds are subject to Submitted Hold
Orders, all Submitted Bids shall be rejected.
(iv) If, as a result of the procedures described in
subsection (i) or (ii) of this Section 3.4(f), any Existing
Holder would be required to sell, or any Potential Holder
would be required to purchase, a principal amount of Bonds
that is not equal to $100,000 or an integral multiple
thereof, the Auction Agent shall, in such manner as, in its
sole discretion, it shall determine, round up or down the
principal amount of such Bonds to be purchased or sold by
any Existing Holder or Potential Holder so that the
principal amount purchased or sold by each Existing Holder
or Potential Holder shall be equal to $100,000 or an
integral multiple thereof.
(v) If, as a result of the procedures described in
subsection (i) of this Section 3.4(f), any Potential Holder
would be required to purchase less than $100,000 in
aggregate principal amount of Bonds, the Auction Agent
shall, in such manner as, in its sole discretion, it shall
determine, allocate Bonds for purchase among Potential
Holders so that only Bonds in principal amounts of $100,000
or an integral multiple thereof are purchased by any
Potential Holder, even if such allocation results in one or
more of such Potential Holders not purchasing any Bonds.
(vi) Based on the results of each Auction, the Auction
Agent shall determine the aggregate principal amounts of
Bonds to be purchased and the aggregate principal amounts of
Bonds to be sold by Potential Holders and Existing Holders
on whose behalf each Broker-Dealer submitted Bids or Sell
Orders and, with respect to each Broker-Dealer, to the
extent that such amounts differ, determine to which other
Broker-Dealer or Broker-Dealers acting for one or more
purchasers of Bonds such Broker-Dealer shall deliver, or
from which other Broker-Dealer or Broker-Dealers acting for
one or more sellers of Auction Bonds such Broker-Dealer
shall receive, as the case may be, Bonds.
(vii) None of the Issuer, the Company or any
Affiliate thereof may submit an Order in any Auction except
as set forth in the next sentence. Any Broker-Dealer that is
an Affiliate of the Company or the Issuer may submit Orders
in an Auction but only if such Orders are not for its own
account, except that if such affiliated Broker-Dealer holds
Bonds for its own account, it must submit a Sell Order on
the next Auction Date with respect to such Bonds. The
Auction Agent shall have no duty or liability with respect
to monitoring or enforcing the provisions of this paragraph.
(g) DTC Required During Dutch Auction Rate Mode;
Limitations on Transfer.
(i) Except as otherwise provided in this Section
3.4(g), the Bonds bearing interest at the Dutch Auction Rate
shall be registered in the name of DTC or its nominee and
ownership thereof shall be maintained in book-entry-only
form by DTC for the account of the Agent Members thereof.
(ii) If at any time DTC notifies the Issuer and the
Company that it is unwilling or unable to continue as Owner
of Bonds or if at any time DTC shall no longer be registered
or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation
and a successor to DTC is not appointed by the Issuer at the
direction of the Company, the Trustee and the Auction Agent,
within 90 days after the Issuer and the Company receive
notice or become aware of such condition, as the case may
be, the Issuer shall execute and the Trustee shall
authenticate and deliver certificates representing the
Bonds. Bonds issued pursuant to this Section 3.4(g)(ii)
shall be registered in such names and authorized
denominations as DTC, pursuant to instructions from the
Agent Members or otherwise, shall instruct the Issuer and
the Trustee. The Trustee shall deliver the Bonds to the
persons in whose names such Bonds are so registered on the
Business Day immediately preceding the first day of an
Auction Period.
So long as the ownership of the Bonds is maintained in
book-entry-only form by DTC, an Existing Holder may sell,
transfer or otherwise dispose of Bonds only pursuant to a
Bid or Sell Order placed in an Auction or to or through a
Broker-Dealer, provided that, in the case of all transfers
other than pursuant to Auctions, such Existing Holder, its
Broker-Dealer or its Agent Member advises the Auction Agent
of such transfer.
SECTION 3.5. Early Deposit of Payments.
(a) The deposits required by Section 6.1 hereof to pay
principal of and interest on the Bonds shall be made, during a
Dutch Auction Rate Period, no later than 12:00 noon New York City
time) on the Business Day next preceding each Interest Payment
Date in funds available on the next Business Day in The City of
New York. In the event such deposit is not made in accordance
with this Section 3.5(a), the Trustee shall immediately send a
certificate to such effect to the Auction Agent, to the Bond
Insurer and to DTC by telecopy or similar means. In the event
such deposit is not made as provided in the first sentence of
this subparagraph (a), then if such deposit is made within three
Business Days of the Business Day immediately preceding the
Interest Payment Date, the Trustee shall immediately send a
certificate to such effect to the Auction Agent, to the Bond
Insurer and to DTC by telecopy or similar means.
(b) The deposit required by Section 6.1 hereof to pay the
redemption price of the Bonds in accordance with Section 8.1(c)
hereof shall be made, during a Dutch Auction Rate Period, (A) no
later than 12:00 noon (New York City time) on the second Business
Day preceding each redemption date in funds available on the next
Business Day in The City of New York. In the event such deposit
is not made in accordance with this Section 3.5(b), the Trustee
shall immediately send a certificate to such effect to the
Auction Agent and to the Bond Insurer by telecopy or similar
means. In the event such deposit is not made as provided in the
first sentence of this subparagraph (b), then if such deposit is
made within three Business Days of the second Business Day
immediately preceding the redemption date the Trustee shall
immediately send a certificate to such effect to the Auction
Agent by telecopy or similar means.
SECTION 3.6. Calculation of Maximum Dutch Auction Rate,
Minimum Dutch Auction Rate and Overdue Rate.
The Auction Agent shall calculate the Maximum Dutch
Auction Rate and the Minimum Dutch Auction Rate on each Auction
Date. If the ownership of the Bonds is no longer maintained in
book-entry-only form by DTC, the Trustee shall calculate the
Maximum Dutch Auction Rate on the Business Day immediately
preceding the first day of each Auction Period commencing after
the delivery of certificates representing the Bonds pursuant to
Section 3.4(g) hereof. If a Failure to Deposit or Event of
Default shall have occurred, the Trustee, upon notice thereof,
shall calculate the Overdue Rate on the first day of each Auction
Period commencing after the occurrence of such Failure to Deposit
or Event of Default to and including the Auction Period, if any,
commencing less than two Business Days after all such Failure to
Deposit and Events of Default are cured.
ARTICLE IV
TENDER AND PURCHASE OF BONDS
SECTION 4.1. Optional Tenders for Purchase.
(a) Purchase Dates. The owners or registered owners of
Bonds accruing interest at Daily or Weekly Rates may elect to
have their Bonds (or portions thereof in amounts equal to the
lowest denomination then authorized pursuant to Section 2.2
hereof or whole multiples of such lowest denomination) purchased
at the Purchase Price on the following Purchase Dates:
(i) Bonds accruing interest at Daily Rates may be
tendered for purchase at the Purchase Price payable in
immediately available funds on any Business Day upon
personal, Electronic or telephonic notice of tender given to
the Paying Agent, directly or through the Owner's DTC
Participant (as defined in the Letter of Representations),
not later than 11:00 a.m., New York City time, on the
Purchase Date.
(ii) Bonds accruing interest at Weekly Rates may be
tendered for purchase at the Purchase Price payable in
immediately available funds on any Business Day upon written
or Electronic notice of tender to the Paying Agent, directly
or through the Owner's DTC Participant, not later than 5:00
p.m., New York City time, on a Business Day not fewer than
seven days prior to the Purchase Date.
(b) Notice of Tender. Each notice of tender:
(i) shall, in the case of a written notice, be
delivered to the Paying Agent at its principal office and be
in form satisfactory to the Paying Agent;
(ii) shall state, whether delivered personally, in
writing, Electronically or by telephone (A) the principal
amount of the Bond to which the notice relates, (B) that the
Owner or Registered Owner irrevocably demands purchase of
such Bond or a specified portion thereof in an amount equal
to the lowest denomination then authorized pursuant to
Section 2.2 hereof or a whole multiple of such lowest
denomination, (C) the date on which such Bond or portion is
to be purchased, and (D) payment instructions with respect
to the Purchase Price; and
(iii) shall automatically constitute, whether
delivered personally, in writing, Electronically or by
telephone (A) an irrevocable offer to sell the Bond (or
portion thereof) to which the notice relates on the Purchase
Date at a Purchase Price equal to the principal amount of
such Bond (or portion thereof) plus any interest thereon
accrued and unpaid as of the Purchase Date, (B) an
irrevocable authorization and instruction to the Paying
Agent to effect transfer of such Bond (or portion thereof)
upon payment of the Purchase Price to the Paying Agent on
the Purchase Date, (C) an irrevocable authorization and
instruction to the Paying Agent to effect the exchange of
the Bond to be purchased in whole or in part for other Bonds
in an equal aggregate principal amount so as to facilitate
the sale of such Bond (or portion thereof to be purchased),
and (D) an acknowledgment that such Owner or Registered
Owner will have no further rights with respect to such Bond
(or portion thereof) upon payment of the Purchase Price
thereof to the Paying Agent on the Purchase Date, except for
the right of such Owner or Registered Owner to receive such
Purchase Price upon delivery of such Bond to the Paying
Agent. The determination of the Paying Agent as to whether
a notice of tender has been properly delivered pursuant to
the foregoing shall be conclusive and binding upon the Owner
or Registered Owner.
(c) Bonds to be Remarketed. Not later than 11:00 a.m., New
York City time, on the Business Day immediately following the
date of receipt of any notice of tender (or immediately upon such
receipt, in the case of Bonds accruing interest at Daily Rates),
the Paying Agent shall notify, by telephone, promptly confirmed
in writing, the Company, the Trustee and the Remarketing Agent of
the principal amount of Bonds (or portions thereof) to be
purchased and the Purchase Date.
(d) Trustee Reliance. In accepting a Notice of Tender
pursuant to Section 4.1 hereof, the Trustee and the Paying Agent
may conclusively assume that the person providing the Notice of
Tender is the beneficial owner of the Bonds and therefore
entitled to tender them. The Trustee and Paying Agent assumes no
liability to anyone in accepting a Notice of Tender from a person
whom it reasonably believes to be a beneficial owner of the
Bonds.
SECTION 4.2. Mandatory Tenders for Purchase.
(a) Commercial Paper Rate Bonds. Each Bond accruing
interest at a Commercial Paper Rate is subject to mandatory
tender for purchase on each Interest Payment Date applicable to
such Bond, at a Purchase Price equal to 100% of the principal
amount thereof. The Registered Owner of any Bond accruing
interest at a Commercial Paper Rate and tendered for purchase as
provided in this subsection (a) shall provide the Paying Agent
with written payment instructions for the Purchase Price of its
Bond on or before tender thereof to the Paying Agent.
(b) Conversions between Rate Periods. Bonds to be
converted from one Rate Period to a different Rate Period (except
conversions from the Daily Rate to the Weekly Rate or from the
Weekly Rate to the Daily Rate) or from a Multiannual Rate Period
to a Multiannual Rate Period of different duration are subject to
mandatory tender for purchase on the Conversion Date at the
Purchase Price equal to 100% of the principal amount thereof.
(c) Multiannual Rate Bonds. Bonds accruing interest at a
Multiannual Rate are subject to mandatory tender for purchase on
the Interest Payment Date following the end of each Multiannual
Rate Period at a Purchase Price equal to 100% of the principal
amount thereof. The Registered Owner of any Bond accruing
interest at a Multiannual Rate and tendered for purchase as
provided in this subsection (c) shall provide the Paying Agent
with written payment instructions for the Purchase Price of its
Bond on or before tender thereof to the Paying Agent. The
Trustee shall give notice by first class mail to the Registered
Owners of the mandatory tender of Bonds accruing interest at a
Multiannual Rate pursuant to this subsection (c) not less than 30
days before the tender date. Such notice shall state:
(i) the mandatory tender date;
(ii) that the Bonds will be subject to mandatory tender
for purchase on the mandatory tender date; and
(iii) if the Bonds are in certificated form,
information with respect to required delivery of Bond
certificates and payment of the Purchase Price.
SECTION 4.3. Remarketing and Purchase.
(a) Remarketing of Tendered Bonds. Unless otherwise
instructed by the Company, the Remarketing Agent shall offer for
sale and use its best efforts to find purchasers for all Bonds or
portions thereof for which notice of tender has been received
pursuant to Section 4.1(c) or which are subject to mandatory
tender pursuant to Section 4.2. The terms of any sale by the
Remarketing Agent shall provide for the payment of the Purchase
Price (other than that portion of the Purchase Price equal to the
premium that would be payable by the Company in the case of a
Bond converted from a Multiannual Rate Period on a date when such
Bond is also subject to optional redemption at a premium) for
tendered Bonds by the Remarketing Agent to the Paying Agent (i)
in immediately available funds at or before 2:15 p.m., New York
City time, on the Purchase Date, in the case of Bonds accruing
interest at Commercial Paper Rates or Daily Rates, and (ii) in
immediately available funds at or before 12:00 noon, New York
City time, on the Purchase Date, in the case of Bonds accruing
interest at Weekly Rates, Dutch Auction Rates or Multiannual
Rates. The Remarketing Agent shall not sell any Bond as to which
a notice of conversion from one type of Rate Period to another
has been given by the Trustee unless the Remarketing Agent has
advised the Person to whom the sale is made of the conversion.
The Remarketing Agent shall not remarket any Bonds pursuant to
this Section if an Event of Default shall have occurred and be
continuing hereunder with respect to the Bonds.
(b) Purchase of Tendered Bonds.
(i) Notice. At or before 3:00 p.m., New York City
time, on the Business Day immediately preceding the Purchase
Date of tendered Bonds (or 12:45 p.m., New York City time,
on the Purchase Date in the case of Bonds accruing interest
at Daily or Commercial Paper Rates), the Remarketing Agent
shall give notice by telephone, telegram, telecopy, telex,
Electronically or by other similar communication to the
Trustee of the principal amount of tendered Bonds which were
remarketed. Not later than 5:00 p.m. (or 1:30 p.m., in the
case of Bonds accruing interest at Daily or Commercial Paper
Rates), New York City time, on the date of receipt of such
notice the Trustee shall give notice by telephone, telegram,
telecopy, Electronically or by other similar communication
to the Paying Agent and the Company, specifying the
principal amount of tendered Bonds as to which the
Remarketing Agent has not found a purchaser at that time.
At or before 3:00 p.m., New York City time, on the Business
Day prior to the Purchase Date to the extent known to the
Remarketing Agent, but in any event, no later than 11:00
a.m. (or 1:00 p.m., in the case of Bonds accruing interest
at Daily or Commercial Paper Rates), New York City time, on
the Purchase Date, the Remarketing Agent shall give notice
to the Paying Agent by telephone (promptly confirmed in
writing or Electronically) of the names, addresses and
taxpayer identification numbers of the purchasers, the
denominations of Bonds to be delivered to each purchaser
and, if available, payment instructions for regularly
scheduled interest payments, or of any changes in any such
information previously communicated.
(ii) Sources of Payments. The Remarketing Agent shall
cause to be paid to the Paying Agent on the Purchase Date of
tendered Bonds, all amounts representing proceeds of the
remarketing of such Bonds, such payments to be made in the
manner and at the time specified in subsection 4.3(a) above.
On each date Bonds are to be purchased pursuant to Sections
4.1 and 4.2, the Paying Agent shall purchase, but only from
the funds listed below, such Bonds from the owners thereof.
Funds for the payment of such Purchase Price shall be
derived from the following sources in the order of priority
indicated:
(1) Proceeds of the sale of such Bonds, pursuant to
Section 4.3(a); and
(2) Moneys paid by the Company to pay the Purchase
Price.
On each Purchase Date, except to the extent that the
Trustee shall have received Electronic notice (promptly
confirmed by telephone) from the Remarketing Agent on or
prior to 10:00 a.m. (New York City time) on each Purchase
Date that such Bonds shall have been remarketed pursuant to
Section 4.3 hereof, that the moneys described in clause (1)
above will be sufficient to pay the Purchase Price of such
Bonds and that such moneys are on deposit with the
Remarketing Agent to pay such Purchase Price, the Company
shall deliver or cause to be delivered such amounts and at
such times so that there will be delivered to the Paying
Agent (A) immediately available funds in an amount equal to
such deficiency prior to 2:30 p.m., New York City time, on
the Purchase Date of tendered Bonds accruing interest at
Daily Rates (3:00 p.m., New York City time, in the case of
Bonds accruing interest at Commercial Paper Rates), and (B)
immediately available funds in an amount equal to such
deficiency prior to 12:15 p.m., New York City time, on the
Purchase Date of tendered Bonds accruing interest at Weekly
Rates, Dutch Auction Rates or Multiannual Rates (the
obligation of the Company to deliver such moneys not being
conditioned on receipt by the Company of the foregoing
notice from the Trustee). All moneys received by the
Paying Agent as remarketing proceeds and additional amounts,
if any, received from the Company, as the case may be, shall
be deposited by the Paying Agent in the appropriate account
of the Bond Purchase Fund to be used solely for the payment
of the Purchase Price of tendered Bonds and shall not be
commingled with other funds held by the Paying Agent and
shall not be invested.
(iii) Payments by the Paying Agent. At or before
3:30 p.m., New York City time, on the Purchase Date for
tendered Bonds and upon receipt by the Paying Agent of 100%
of the aggregate Purchase Price of the tendered Bonds, the
Paying Agent shall pay or receipt the Purchase Price of such
Bonds to the Registered Owners thereof. Such payments shall
be made in immediately available funds (or by wire
transfer). The Paying Agent shall apply in order (A) moneys
paid to it by the Remarketing Agent as proceeds of the
remarketing of such Bonds by the Remarketing Agent, and (B)
other moneys made available by the Company.
(iv) Registration and Delivery of Tendered or Purchased
Bonds. On the date of purchase, the Paying Agent shall
register and deliver (or hold) or cancel all Bonds purchased
on any Purchase Date as follows: (A) Bonds purchased or
remarketed by the Remarketing Agent shall be registered and
made available to the Remarketing Agent by 3:15 p.m., New
York City time, in accordance with the instructions of the
Remarketing Agent, and (B) Bonds purchased with amounts
provided by the Company shall be registered in the name of
the Company and shall be delivered to the Trustee to be held
in trust by the Trustee on behalf of the Company and shall
not be released from such trust unless the Trustee shall
have received written instructions from the Company.
Notwithstanding anything herein to the contrary, so long as
the Bonds are held in book-entry-only form in accordance
with Section 2.13 hereof, Bonds will not be delivered as set
forth above; rather, transfers of beneficial ownership of
the Bonds to the person indicated above will be effected on
the registration books of DTC pursuant to its rules and
procedures and the Letter of Representations.
(v) Resale of Bonds Purchased by the Company. In the
event that any Bonds are registered to the Company pursuant
to subparagraph (iv) above to the extent requested by the
Company, the Remarketing Agent shall offer for sale and use
its best efforts to sell such Bonds at a price equal to the
principal amount thereof plus accrued interest.
(vi) Delivery of Tendered Bonds; Effect of Failure to
Surrender Bonds. All Bonds to be purchased on any date
shall be required to be delivered to the principal office of
the Paying Agent at or before (A) 1:00 p.m., New York City
time, on the Purchase Date in the case of Bonds accruing
interest at Commercial Paper Rates or Daily Rates; (B) 12:00
noon, New York City time, on the Purchase Date in the case
of Bonds accruing interest at Weekly Rates; or (C) 3:00
p.m., New York City time, on the Purchase Date in the case
of Bonds accruing interest at Dutch Auction or Multiannual
Rates. If the Owner of any Bond (or portion thereof) in
certificated form that is subject to optional or mandatory
purchase pursuant to this Article fails to deliver such Bond
to the Paying Agent for purchase on the Purchase Date, and
if the Paying Agent is in receipt of the Purchase Price
therefor, such Bond (or portion thereof) shall nevertheless
be deemed purchased on the Purchase Date thereof and
ownership of such Bond (or portion thereof) shall be
transferred to the purchaser thereof as provided in
subsection (ii) above. Any Owner who fails to deliver such
Bond for purchase shall have no further rights thereunder
except the right to receive the Purchase Price thereof upon
presentation and surrender of said Bond to the Paying Agent.
The Paying Agent shall, as to any tendered Bonds which have
not been delivered to it (i) promptly notify the Remarketing
Agent of such nondelivery, and (ii) place or cause to be
placed a stop transfer against an appropriate amount of
Bonds registered in the name of such Registered Owner(s) on
the bond registration books. The Paying Agent shall place
or cause to be placed such stop(s) commencing with the
lowest serial number Bond registered in the name of such
Registered Owner(s) until stop transfers have been placed
against an appropriate amount of Bonds until the appropriate
tendered Bonds are delivered to the Paying Agent. Upon such
delivery, the Paying Agent shall make or cause the Bond
Registrar to make any necessary adjustments to the bond
registration books. Notwithstanding anything herein to the
contrary, so long as the Bonds are held in book-entry-only
form in accordance with Section 2.13 hereof, Bonds will not
be delivered as set forth above; rather, transfers of
beneficial ownership of the Bonds to the person indicated
above will be effected on the registration books of DTC
pursuant to its rules and procedures and the Letter of
Representations.
SECTION 4.4. Bond Purchase Fund. If and when a
remarketing event shall occur pursuant to Section 4.3(a) hereof,
there shall hereby be created and ordered to be established with
the Paying Agent a segregated trust fund to be designated the
"Bond Purchase Fund". The Bond Purchase Fund shall consist of
the sub-accounts to be designated respectively the "Remarketing
Account" and the "Company Purchase Account".
The Paying Agent shall deposit or cause to be deposited into
the Remarketing Account, when and as received, all moneys
delivered to the Paying Agent as and for the Purchase Price of
remarketed Bonds by or on behalf of the Remarketing Agent. The
Paying Agent shall disburse moneys from the Remarketing Account
to pay the Purchase Price of Bonds properly tendered for purchase
upon surrender of such Bonds pursuant to Section 4.3(b)(vi).
The Trustee or Paying Agent, as the case may be, shall
deposit or cause to be deposited into the Company Purchase
Account, when and as received, all moneys delivered to the
Trustee or the Paying Agent, as the case may be, by or for the
account of the Company pursuant to Section 4.2 of the Refunding
Agreement. The Paying Agent shall disburse moneys from the
Company Purchase Account to pay the Purchase Price of Bonds
properly tendered for purchase by or on behalf of the Company
upon surrender of such Bonds pursuant to Section 4.3(b)(vi).
The funds held by the Paying Agent in the Bond Purchase Fund
shall not constitute part of the trust estate which is subject to
the lien of this Indenture. The moneys in the Bond Purchase Fund
shall be used solely to pay the Purchase Price of Bonds as
aforesaid and may not be used for any other purposes. It shall
be the duty of the Paying Agent to hold the moneys in the Bond
Purchase Fund, without liability for interest thereon, for the
benefit of the Registered Owners of Bonds which have been
properly tendered for purchase or deemed tendered on the Purchase
Date, and if sufficient funds to pay the Purchase Price for such
tendered Bonds shall be held by the Paying Agent in the Bond
Purchase Fund for the benefit of the Registered Owners thereof,
each such Registered Owner shall thereafter be restricted
exclusively to the Bond Purchase Fund for any claim of whatever
nature on such Registered Owner's part under this Indenture or
on, or with respect to, such tendered Bond. The provisions of
Section 16.2 hereof shall govern any funds held in the Bond
Purchase Fund for such Registered Owners of the Bonds which
remain unclaimed for a period of two years after the applicable
Purchase Date.
ARTICLE V
REFUNDING FUND
SECTION 5.1. Creation of Refunding Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the Issuer to be designated
"Independence County, Arkansas Pollution Control Revenue
Refunding Bonds (Entergy Mississippi, Inc. Project) Series 1999
Refunding Fund".
SECTION 5.2. Deposit of Proceeds of Bonds. All of the
proceeds of the Bonds shall be deposited in the Refunding Fund.
On the date of issuance of the Bonds, the Trustee shall transfer
to the Prior Trustee all such moneys for deposit in the
respective bond funds created under the Prior Indenture in the
following principal amounts for the purpose of, together with
moneys of the Company deposited therein, refunding a like
principal amount of the Prior Bonds on the Refunding Date:
(a) Independence County, Arkansas Pollution Control Revenue
Bond Fund
(1982 Series) - Mississippi Power & Light Company
Project
(for 1982 Bonds): $15,000,000
(b) Independence County, Arkansas Pollution Control Revenue
Bond Fund
(1982-A Series) - Mississippi Power & Light Company
Project
(for 1982-A Bonds): $15,000,000
ARTICLE VI
REVENUES AND APPLICATION THEREOF; BOND INSURANCE
SECTION 6.1. Bond Fund. (a) There is hereby created and
ordered to be established with the Trustee a Bond Fund, the
moneys from which the Trustee shall make available to the Paying
Agent or Agents in accordance with subsection (c) below to pay
(i) the principal or redemption price of Bonds as they mature or
become due, upon presentation and surrender thereof and (ii) the
interest on Bonds as it becomes payable. Moneys in the Bond Fund
shall not be applied to pay the Purchase Price of the Bonds.
(b) There shall be deposited into the Bond Fund from time
to time all payments of principal, redemption price or interest
under the Refunding Agreement and all other moneys received by
the Trustee under and pursuant to the provisions of this
Indenture or any of the provisions of the Refunding Agreement,
when accompanied by directions from the person depositing such
moneys that such moneys are to be paid into the Bond Fund.
(c) Except as provided in Sections 6.3 and 11.7, moneys in
the Bond Fund shall be used solely for the payment of the
principal or redemption price of the Bonds and interest on the
Bonds.
SECTION 6.2. Revenues to Be Held for All Bondholders;
Certain Exceptions. Until applied as provided in this Indenture
to the payment of Bonds or transferred to the Company pursuant to
Section 16.2, Revenues shall be held by the Trustee in trust in
the Bond Fund for the benefit of the owners of all Outstanding
Bonds, except that any portion of the Revenues representing
principal or redemption price of any Bonds, and interest on any
Bonds previously matured or called for redemption in accordance
with Article VIII of this Indenture, shall be held for the
benefit of the owners or the former owners of such Bonds only.
SECTION 6.3. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of (i) the Bonds
(or the provision for payment thereof having been made in
accordance with the provisions hereof), (ii) all Administration
Expenses, and (iii) all other amounts required to be paid under
the Agreement and this Indenture, shall be paid to the Company.
SECTION 6.4. Payment Procedure Pursuant to the Bond
Insurance Policy. As long as the Bond Insurance Policy shall be
in full force and effect, the Issuer, the Trustee and the Paying
Agent agree to comply with the following provisions:
(a) At least one (1) day prior to each Interest
Payment Date and the Trustee will determine whether there
will be sufficient funds in the Funds and Accounts
established under this Indenture to pay the principal of or
interest on the Bonds on such Interest Payment Date. If the
Trustee determines that there will be insufficient funds in
such Funds and Accounts, the Trustee shall so notify the
Bond Insurer. Such notice shall specify the amount of the
anticipated deficiency, whether such Bonds will be deficient
as to principal or interest, or both. If the Trustee has
not so notified the Bond Insurer at least one (1) day prior
to an Interest Payment Date, the Bond Insurer will make
payments of principal or interest due on the Bonds on or
before the first (1st) Business day next following the date
on which the Bond Insurer shall have received notice of
nonpayment from the Trustee.
(b) The Trustee shall, after giving notice to the Bond
Insurer as provided in (a) above, make available to the Bond
Insurer and, at the Bond Insurer's direction, to the United
States Trust Company of New York, as insurance trustee for
the Bond Insurer or any successor insurance trustee (the
"Insurance Trustee"), the registration books of the Issuer
maintained by the Trustee and all records relating to the
Funds and Accounts established under this Indenture.
(c) The Trustee shall provide the Bond Insurer and the
Insurance Trustee with a list of registered owners of Bonds
entitled to receive principal or interest payments from the
Bond Insurer under the terms of the Bond Insurance Policy,
and shall make arrangements with the Insurance Trustee (i)
to mail checks or drafts to the registered owners of Bonds
entitled to receive full or partial interest payments from
the Bond Insurer and (ii) to pay principal upon Bonds
surrendered to the Insurance Trustee by the registered
owners of Bonds entitled to receive full or partial
principal payments from the Bond Insurer.
(d) The Trustee shall, at the time it provides notice
to the Bond Insurer pursuant to (a) above, notify registered
owners of Bonds entitled to receive the payment of principal
or interest thereon from the Bond Insurer (i) as to the fact
of such entitlement, (ii) that the Bond Insurer will remit
to them all or a part of the interest payments next coming
due upon proof of Bondholder entitlement to interest
payments and delivery to the Insurance Trustee, in form
satisfactory to the Insurance Trustee, of an appropriate
assignment of the registered owner's right to payment, (iii)
that should they be entitled to receive full payment of
principal from the Bond Insurer, they must surrender their
Bonds (along with an appropriate instrument of assignment in
form satisfactory to the Insurance Trustee to permit
ownership of such Bonds to be registered in the name of the
Bond Insurer) for payment to the Insurance Trustee, and not
the Trustee and (iv) that should they be entitled to receive
partial payment of principal from the Bond Insurer, they
must surrender their Bonds for payment thereon first to the
Trustee who shall note on such Bonds the portion of the
principal paid by the Trustee and then, along with an
appropriate instrument of assignment in form satisfactory to
the Insurance Trustee, to the Insurance Trustee, which will
then pay the unpaid portion of principal.
(e) In the event that the Trustee has notice that any
payment of or interest on a Bond which has become due for
payment and which is made to a Bondholder by or on behalf of
the Issuer has been deemed a preferential transfer and
theretofore recovered from its registered owner pursuant to
the United States Bankruptcy Code by a trustee in bankruptcy
in accordance with the final, nonappealable order of a court
having competent jurisdiction, the Trustee shall, at the
time the Bond Insurer is notified pursuant to (a) above,
notify all registered owners that in the event that any
registered owner's payment is so recovered, such registered
owner will be entitled to payment from the Bond Insurer to
the extent of such recovery if sufficient funds are not
otherwise available, and the Trustee shall furnish to the
Bond Insurer its records evidencing the payments of
principal of and interest on the Bonds which have been made
by the Trustee and subsequently recovered from registered
owners and the dates on which such payments were made.
(f) In addition to those rights granted the Bond
Insurer under this Indenture, the Bond Insurer shall, to the
extent it makes payment of principal of or interest on the
Bonds, become subrogated to the rights of the recipients of
such payments in accordance with the terms of the Bond
Insurance Policy, and to evidence such subrogation (i) in
the case of subrogation as to claims for past due interest,
the Trustee shall note the Bond Insurer's rights as subrogee
on the registration books of the Issuer maintained by the
Trustee upon receipt from the Bond Insurer of proof of the
payment of interest thereon to the registered owners of the
Bonds, and (ii) in the case of subrogation as to claims for
past due principal, the Trustee shall note the Bond
Insurer's rights as subrogee on the registration books of
the Issuer maintained by the Trustee upon surrender of the
Bonds by the registered owners thereof together with proof
of the payment of principal thereof.
SECTION 6.5. Bond Insurer's Right to Sue. If an Event of
Default occurs, the Bond Insurer shall have the right to
institute any suit, action or proceeding at law or in equity
under the same terms as a Bondholder may institute any action
hereunder.
SECTION 6.6. Third Party Beneficiary. To the extent that
this Indenture confers upon or gives or grants to the Bond
Insurer any right, remedy or claim under or by reason of this
Indenture, the Bond Insurer is hereby explicitly recognized as
being a third-party beneficiary hereunder and may enforce any
such right, remedy or claim conferred, given or granted
hereunder.
SECTION 6.7. Provisions With Respect to Bond Insurance. As
long as the Bond Insurance Policy issued by the Bond Insurer is
in full force and effect with respect to the Bonds and the Bond
Insurer is not in default thereunder:
(a) Any provision of this Indenture expressly recognizing
or granting rights in or to the Bond Insurer may not be amended
in any manner which affects the rights of the Bond Insurer
hereunder without the prior written consent of the Bond Insurer.
Any action under this Indenture which requires the consent or
approval of owners of the Bonds shall, in addition to such
approval, be subject to the prior written consent of the Bond
Insurer.
(b) Anything in this Indenture to the contrary
notwithstanding, upon the occurrence and continuance of an Event
of Default, and subject to the indemnification provisions
contained in Sections 11.1(e) of this Indenture, the Bond Insurer
shall be entitled to control and direct the enforcement of all
rights and remedies granted to the Owners or the Trustee for the
benefit of the Owners under this Indenture including, without
limitation, (i) the right to accelerate the principal of the
Bonds as set forth herein and (ii) the right to annul any
declaration of acceleration, and the Bond Insurer shall also be
entitled to approve all waivers of Events of Default.
(c) (i) The Trustee shall furnish to the Bond Insurer a
copy of any notice to be given to the Owners, including,
without limitation, notice of any redemption of or
defeasance of the Bonds, and any certificate rendered
pursuant to this Indenture relating to the security for the
Bonds.
(ii) The Trustee shall notify the Bond Insurer of any
failure of the Company to provide the Trustee notices,
certificates, and other documents required to be furnished
to the Trustee by this Indenture or the Refunding Agreement.
(d) Notwithstanding anything herein to the contrary, in the
event that the principal or interest due on the Bonds shall be
paid by the Bond Insurer pursuant to the Bond Insurance Policy,
the Bonds shall remain outstanding for all purposes, shall not be
defeased or otherwise satisfied and shall not be considered paid
by the Issuer, and the assignment and pledge of the Trust Estate
and all covenants, agreements and other obligations of the Issuer
to the Owners shall continue to exist and shall run to the
benefit of the Bond Insurer, and the Bond Insurer shall be
subrogated to the rights of the Owners.
(e) (i) The Bond Insurer shall receive five days' prior
written notice of any Trustee or Paying Agent resignation
and shall have the right to approve the appointment of any
successor Trustee or Paying Agent appointed by the Issuer
pursuant to Section 11.9 of this Indenture. In the event
that the Trustee shall fail to perform its obligations
hereunder in any material respect, the Bond Insurer may
direct the Company to exercise its rights under Section 11.9
of this Indenture to remove the Trustee and the Company
shall so exercise such rights.
(ii) Notwithstanding any other provision of this
Indenture, in determining whether the rights of the Owners
will be adversely affected by any action taken pursuant to
the terms and provisions of this Indenture, the Trustee
shall consider the effect on the Owners as if there were no
Bond Insurance Policy.
SECTION 6.8. References to the Bond Insurer. All
provisions hereof regarding consents, approvals, directions,
appointments or requests by the Bond Insurer shall be deemed not
to require or permit such consents, approvals, directions,
appointments or requests by the Bond Insurer and shall be read as
if the Bond Insurance Policy was not mentioned therein during any
time in which the Bond Insurer is in default in its obligations
to make payments under the Bond Insurance Policy; provided,
however, that this Section shall not affect the rights of the
Bond Insurer to collect any amounts owed to it.
ARTICLE VII
INVESTMENT OR DEPOSIT OF MONEYS
SECTION 7.1. Deposits. All moneys received by the Trustee
under this Indenture shall be deposited with the Trustee, until
or unless invested or deposited as provided in Section 7.2 or as
otherwise provided herein. All deposits with the Trustee shall
be secured as required by applicable law for such trust deposits.
The Trustee may deposit such moneys with any other depository
which is authorized to receive them and is subject to supervision
by public banking authorities. The moneys on deposit in the Bond
Purchase Fund shall not be invested.
SECTION 7.2. Investment of Moneys in Bond Fund. (a)
Moneys held for the credit of the Bond Fund shall, upon written
direction by the Authorized Company Representative, be invested
and reinvested by the Trustee in any one or more of the following
obligations or securities on which neither the Company nor any of
its subsidiaries is the obligor: (i) Government Securities; (ii)
interest bearing deposit accounts (which may be represented by
certificates of deposit) in national or state banks (which may
include the Trustee, any Paying Agent, and the Bond Registrar)
having a combined capital and surplus of not less than
$10,000,000, or savings and loan associations having total assets
of not less than $40,000,000; (iii) bankers' acceptances drawn on
and accepted by commercial banks (which may include the Trustee,
any Paying Agent, and the Bond Registrar) having a combined
capital and surplus of not less than $10,000,000; (iv) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, any state of the United
States of America, the District of Columbia or the Commonwealth
of Puerto Rico, or any political subdivision of any of the
foregoing, which are rated in any of the three highest rating
categories by a nationally recognized rating agency; (v)
obligations of federal agencies which obligations represent the
full faith and credit of the United States of America; (vi)
commercial or finance company paper which is rated in any of the
three highest rating categories by a nationally recognized rating
agency; (vii) corporate debt securities rated in any of the three
highest rating categories by a nationally recognized rating
agency; (viii) money market funds, including those for which the
Trustee or any affiliate receives compensation with respect to
such investment, which (x) are rated in the highest rating
category by S&P or Moody's or (y) are comprised in their entirety
of U.S. Treasury obligations; and (ix) repurchase agreements with
banking or financial institutions having a combined capital and
surplus of not less than $10,000,000 (which may include the
Trustee, any Paying Agent, and the Bond Registrar) with respect
to any of the foregoing obligations or securities. As used
above, the reference to rating categories shall mean generic
categories which may include numerical or other qualifications of
ratings within each such generic rating category such as "+" or "-
". Such investments shall have maturity dates, or shall be
subject to redemption by the holder at the option of the holder,
on or prior to the dates the moneys invested therein will be
needed as reflected by a statement of the Authorized Company
Representative, which statement must be on file with the Trustee
prior to any investment. Such investments shall not be subject
to redemption by the issuer at the option of the issuer. The
Trustee shall not be responsible for any loss in connection with
making any investments hereunder.
(b) Obligations so purchased as an investment of moneys in
any fund or account shall be deemed at all times a part of such
fund or account. Any profit and income realized from such
investments shall be credited to such fund or account and any
loss shall be charged to such fund or account.
SECTION 7.3. Arbitrage Bond Covenant. With respect to the
authority to invest funds granted in this Indenture, the Issuer
and the Trustee hereby covenant with the holders of the Bonds
that, subject to the Company's written direction of the
investment of funds, they will make no use of the proceeds of the
Bonds, or any other funds which may be deemed to be proceeds of
the Bonds pursuant to Section 148 of the Code, which would cause
the Bonds to be "arbitrage bonds" within the meaning of such
Section.
The Company has agreed in the Refunding Agreement to comply
with the rebate requirements of Section 148(f) of the Code. The
Trustee shall provide the Company with monthly account statements
in connection with its investment of moneys in the Bond Fund
under Section 7.2.
ARTICLE VIII
REDEMPTION OF BONDS
SECTION 8.1. Bonds Subject to Redemption. (a) Optional
Redemption. The Bonds shall be subject to redemption at the
option of the Issuer, in whole or in part, and if in part at the
lowest authorized denomination or any whole multiple thereof, at
the direction of the Company, from funds available for such
purpose in the Bond Fund, as follows:
(i) If the Bonds accrue interest at Commercial Paper,
Daily or Weekly Rates, the Bonds shall be subject to
optional redemption on any Interest Payment Date (with
respect to a Bond bearing interest at the Commercial Paper
Rate, on the Interest Payment Date applicable to that Bond)
at an optional redemption price equal to 100% of the
principal amount thereof, together with accrued interest to
the redemption date.
(ii) If the Bonds accrue interest at a Dutch Auction
Rate, the Bonds shall be subject to optional redemption on
the Business Day immediately preceding any Auction Date, at
an optional redemption price equal to 100% of the principal
amount thereof, together with accrued interest to the
redemption date.
(iii) If the Bonds accrue interest at a Multiannual
Rate, the Bonds shall be subject to optional redemption (A)
at any time on and after the dates and at the optional
redemption prices set forth below, together with accrued
interest, if any, to the redemption date and (B) on the day
after the end of each Multiannual Rate Period at the
redemption price of 100% of the principal amount thereof,
together with accrued interest, if any, to the redemption
date:
Length of Commencement
Multiannual of Multiannual
Rate Period Redemption Period Redemption Price
Greater than or Fifth anniversary of 102%, declining by 1%
equal to 6 years the commencement of on each succeeding
Rate Period anniversary of
the first
day of the redemption
period until
reaching 100% and
thereafter
at 100%
Less than 6 years Bonds not subject to
optional redemption
until commencement
of next Rate Period
(b) Extraordinary Optional Redemption. If the Bonds accrue
interest at a Multiannual Rate, the Bonds shall be subject to
optional redemption by the Issuer, at the direction of the
Company, in whole but not in part, at any time, at a redemption
price equal to the principal amount being redeemed plus accrued
interest to the redemption date, if:
(i) the Company shall have determined that the
continued operation of the Facilities or the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) all or substantially all of the Facilities or the
Plant shall have been condemned or taken by eminent domain;
or
(iii) the operation of the Facilities or the Plant
shall have been enjoined or shall have otherwise been
prohibited by any order, decree, rule or regulation of any
court or of any federal, state or local regulatory body,
administrative agency or other governmental body.
(c) Extraordinary Mandatory Redemption. The Bonds shall be
subject to mandatory redemption, at a redemption price equal to
the principal amount being redeemed plus accrued interest to the
redemption date, on the one hundred eightieth day (or such
earlier date as may be designated by the Company) after a final
determination by a court of competent jurisdiction or an
administrative agency to the effect that solely as a result of a
failure by the Company to perform or observe any covenant,
agreement or representation contained in the Refunding Agreement,
the interest payable on the Bonds is included for federal income
tax purposes in the gross income of the owners thereof, other
than any owner who is a "substantial user" of the Facilities or
a "related person" within the meaning of Section 147(a) of the
Code. No determination by any court or administrative agency
will be considered final unless the Company has participated in
the proceeding which resulted in such determination, either
directly or, at the option of the Company, through a Bondholder,
to a degree it reasonably deems sufficient and until the
conclusion of any appellate review sought by any party to such
proceeding or the expiration of the time for seeking such review.
Subject to the foregoing provisions of this subsection (c), the
Bonds shall be redeemed in whole unless, in the opinion of Bond
Counsel mutually acceptable to the Issuer, the Trustee and the
Company, the redemption of a portion of such Bonds would have the
result that interest payable on the Bonds remaining outstanding
after such redemption would not be includable in the gross income
for federal income tax purposes of any owner of any such Bonds.
Any such partial redemption shall be by lot in such amount as is
necessary to accomplish such result.
SECTION 8.2. Company Direction of Optional Redemption.
The Trustee shall call Bonds for optional redemption when and
only when it shall have been notified by the Company to do so.
The Company will give written notice of any optional redemption
to the Trustee and the Issuer as provided in Section 9.1 of the
Agreement.
SECTION 8.3. Selection of Bonds to be Called for
Redemption. Except as otherwise provided herein or in the Bonds,
if less than all the Bonds are to be redeemed, the particular
Bonds to be called for redemption shall be selected by lot or any
other method determined by the Trustee to be fair and reasonable;
provided, however, that if, as stated in a certificate of the
Company delivered to the Trustee, the Company shall have offered
to purchase all Bonds then Outstanding and less than all of such
Bonds shall have been tendered to the Company for such purchase,
the Trustee, at the direction of the Company, shall select for
redemption all such Bonds which have not been so tendered. If
less than all the Bonds are to be redeemed, the Bonds that remain
outstanding shall be in authorized denominations.
SECTION 8.4. Notice of Redemption. (a) The Company shall
deliver notice to the Trustee and the Issuer of its intention to
prepay the principal of, premium, if any, and interest on the
Bonds and cause the Bonds to be called for optional redemption at
least fifteen (15) Business Days prior to the date on which the
Trustee is required to give notice of redemption of the Bonds to
the Registered Owners thereof (unless a shorter notice shall be
accepted by the Trustee as sufficient). The Trustee shall cause
notice of any redemption of Bonds hereunder to be mailed by first
class mail, postage prepaid (except when DTC is the Registered
Owner of all of the Bonds and except for persons or entities
owning or providing evidence of ownership satisfactory to the
Trustee of a legal or beneficial ownership in at least $1,000,000
aggregate principal amount of Bonds who so request, in which
cases, by certified mail, return receipt requested), to the
Registered Owners of all Bonds to be redeemed at the registered
addresses appearing in the registration books kept for such
purpose pursuant to Article II hereof. Each such notice shall
(i) be mailed at least 15 days prior to the redemption date for
Bonds accruing interest at Dutch Auction, Daily, Weekly and
Commercial Paper Rates and at least 30 days prior to the
redemption date for Bonds accruing interest at Multiannual Rates,
(ii) identify the Bonds to be redeemed if less than all Bonds are
to be redeemed (specifying the CUSIP numbers, if any, assigned to
the Bonds), (iii) specify the redemption date and the redemption
price, (iv) state whether the notice is conditional or not as
permitted by paragraph (b) hereof, and (v) state that on the
redemption date the Bonds called for redemption will be payable
at the principal office of the Trustee, that from that date
interest will cease to accrue and that no representation is made
as to the accuracy or correctness of the CUSIP numbers printed
therein or on the Bonds; provided, however, that so long as DTC
or its nominee is the sole Registered Owner of the Bonds under
the book-entry-only system, redemption notices will be sent to
Cede & Co. Any failure on the part of DTC, a direct participant
or indirect participant to give such notice to the Owner or any
defect therein shall not affect the sufficiency or validity of
any proceedings for the redemption of the Bonds. No defect
affecting any Bond, whether in the notice of redemption or
mailing thereof (including any failure to mail such notice),
shall affect the validity of the redemption proceedings for any
other Bonds.
(b) If at the time of mailing of any 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 conditional, that is, subject
to the deposit of the redemption moneys with the Trustee on or
prior to the redemption date, and such notice shall be of no
effect unless such moneys are so deposited on or prior to the
redemption date. If such redemption is not effectuated, the
Trustee shall, within five days thereafter, give notice in the
manner in which the notice of redemption was given that such
moneys were not so received.
SECTION 8.5. Redemption Payments. Subject to the
provisions of Section 8.4(b), on or prior to the date fixed for
redemption, funds shall be deposited with the Trustee to pay, and
the Trustee is hereby authorized and directed to apply such funds
to the payment of, the Bonds or portions thereof to be redeemed,
together with accrued interest thereon to the redemption date and
any required premium. Upon the giving of notice and the deposit
of funds for redemption, interest on the Bonds or portions
thereof thus redeemed shall no longer accrue after the date fixed
for redemption.
ARTICLE IX
COVENANTS OF THE ISSUER; GENERAL AND REFUNDING BONDS
SECTION 9.1. Payment of Principal of, Premium, if any, and
Interest on Bonds; Appointment of Paying Agent. The Issuer
covenants that it will promptly pay or cause to be paid the
principal of, premium, if any, and interest on every Bond issued
under this Indenture at the place, on the dates and in the manner
provided herein and in the Bond according to the true intent and
meaning thereof; provided, however, that the obligation of the
Issuer hereunder to make or cause to be made any payment to the
Trustee in respect of the principal of, premium, if any, or
interest on the Bonds shall be reduced by the amount of moneys,
if any, on deposit in the Bond Fund and available to be applied
by the Trustee toward the payment of the principal of, premium,
if any, or interest on the Bonds. The principal and interest are
payable solely from the Trust Estate, including Revenues, which
Revenues are specifically pledged and assigned for the payment
thereof in the manner and to the extent herein specified, and
nothing in the Bonds or this Indenture should be considered as
assigning or pledging any funds or assets of the Issuer other
than the Trust Estate in the manner and to the extent herein
specified. Anything in this Indenture to the contrary
notwithstanding, it is understood that whenever the Issuer makes
any covenant involving financial commitments, it pledges no funds
or assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
The Issuer shall, with the approval of the Company, appoint
one or more Paying Agents for such purpose, each such agent to be
a national banking association, a bank and trust company or a
trust company. The Issuer hereby appoints the Trustee as Paying
Agent and designates the office of the Trustee at 1201 Main
Street, 18th Floor, Dallas, Texas 75202, Attention: Registered
Processing, as the place of payment, such appointment and
designation to remain in effect until notice of change is filed
with the Trustee. The Issuer shall give prompt written notice to
the Trustee of the designation of each such Paying Agent and of
its designated office location for purposes of such agency, and
of any change in the Paying Agent or of its designated office
location. Any Paying Agent other than the Trustee shall be a
person which meets the requirements for qualifications of a
paying agent imposed by Section 12.2 hereof.
SECTION 9.2. Compliance with Laws. The Issuer 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 ordinances pertaining thereto.
The Issuer covenants that it is duly authorized under the
Constitution and laws of the State, including particularly and
without limitation the Act, to issue Bonds authorized hereby and
to execute this Indenture and to make the pledge and covenants in
the manner and to the extent herein set forth; that all action on
its part 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 Issuer
according to the import thereof.
SECTION 9.3. Enforcement of Agreement; Prohibition Against
Amendments of Agreement; Notice of Default. The Issuer shall
cooperate with the Trustee in enforcing the payment of all
amounts under the Agreement and shall require the Company to
perform its obligations under the Agreement. So long as no Event
of Default hereunder shall have occurred and be continuing, the
Issuer may exercise all its rights under the Agreement as amended
or supplemented from time to time, including the right to amend
the Agreement; provided that it shall not amend the Agreement
without the consent of the Trustee pursuant to Section 14.3. The
Issuer shall give prompt notice to the Trustee of any default
known to the Issuer under the Agreement.
SECTION 9.4. Further Assurances. Except to the extent
otherwise provided in this Indenture, the Issuer shall not enter
into any contract or take any action by which the rights of the
Trustee, the Bondholders or the Company may be impaired and
shall, from time to time, execute and deliver such further
instruments and take such further action as may be required to
carry out the purposes of this Indenture.
SECTION 9.5. Prohibited Activities. The Issuer covenants
that it shall not 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 covenants 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.
SECTION 9.6. Administration Expenses. It is understood
and agreed that pursuant to the provisions of Section 4.5 of the
Refunding Agreement, the Company agrees to pay the Administration
Expenses.
SECTION 9.7. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee or any
Paying Agent for deposit into the Bond Fund, the Bond Purchase
Fund or the Refunding Fund (until disbursed in accordance with
the provisions of this Indenture) under any provision of this
Indenture and all moneys withdrawn from the Bond Fund and held by
any Paying Agent, shall be held by the Trustee or such Paying
Agent in trust, and except for moneys deposited in the Bond
Purchase Fund, or deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article XV hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement, it will forthwith upon receipt thereof pay the same
over to the Trustee to be held, administered and disbursed by the
Trustee in accordance with the provisions of the Refunding
Agreement pursuant to which the Issuer may have received the
same. Furthermore, if for any reason the Refunding Agreement
ceases to be in force and effect while any Bonds are outstanding,
the Issuer agrees that if it shall receive any moneys derived
from the Facilities, it will forthwith upon receipt thereof pay
the same over to the Trustee to be held, administered and
disbursed by the Trustee in accordance with provisions of the
Refunding Agreement that would be applicable if the Refunding
Agreement were then in force and effect, and if there be no such
provisions which would be so applicable, then the Trustee shall
hold, administer and disburse such moneys solely for the
discharge of the Issuer's obligations under this Indenture.
SECTION 9.8. Rights of Company Under Refunding Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Refunding Agreement.
The Issuer and the Trustee agree that the Company in its own name
or in the name of the Issuer may enforce all of the rights of the
Issuer, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
SECTION 9.9. Recordation and Other Instruments. The
Issuer covenants that it will cooperate with the Company in
causing this Indenture, the Refunding Agreement, such security
agreements, financing statements and all supplements thereto and
other instruments as may be required from time to time to be
kept, to be recorded and filed in such manner and in such places
as may be required by law in order to fully preserve and protect
the security of the holders and owners of the Bonds and the
rights of the Trustee hereunder, and to perfect the security
interest created by this Indenture.
SECTION 9.10. Inspection of Books. The Issuer covenants
and agrees that all books and documents in their possession
relating to the Facilities and the revenues derived from the
Facilities shall be open to inspection at all reasonable times by
such accountants or other agencies as the other party may from
time to time designate and by the Company and by the Bond
Insurer.
SECTION 9.11. Rights of Trustee Under Refunding Agreement.
The Refunding Agreement, a duly executed counterpart of which has
been filed with the Trustee, sets forth covenants and obligations
of the Issuer 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 of the Refunding Agreement may not be effectively
amended, changed, modified, altered or terminated, or any
provision waived without the 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
Issuer agrees that the Trustee in its name or in the name of the
Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Refunding Agreement, for
and on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
SECTION 9.12. No Transfer of General and Refunding Bonds.
The Trustee shall not sell, assign or transfer the General and
Refunding Bonds except to a successor trustee under this
Indenture.
SECTION 9.13. Voting of General and Refunding Bonds. The
Trustee shall, as the holder of the General and Refunding Bonds,
attend such meeting or meetings of holders of general and
refunding mortgage bonds issued under the Company Mortgage or, at
its option, deliver its proxy in connection therewith, as it
relates to matters with respect to which it is entitled to vote
or consent. So long as no Event of Default hereunder shall have
occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the
Company's general and refunding mortgage bonds issued under the
Company Mortgage is sought without a meeting, the Trustee shall
vote as the holder of the General and Refunding Bonds, or shall
consent with respect thereto, proportionately with what the
Trustee reasonably believes will be the vote or consent of the
holders of all other general and refunding mortgage bonds of the
Company then outstanding under the Company Mortgage the holders
of which are eligible to vote or consent; provided, however, that
the Trustee shall not vote as such holder in favor of, or give
its consent to, any amendment or modification of the Company
Mortgage that is correlative to any amendment or modification of
this Indenture referred to in any of clauses (a) through (f) of
Section 14.2 hereof without the prior consent and approval,
obtained in the manner prescribed in said Section 14.2, of
Bondholders which would be required under said Section 14.2 for
such correlative amendment or modification of this Indenture.
For purposes of this Section 9.13, the Trustee may
conclusively rely on a bondholder's certificate delivered to the
Trustee, signed by the temporary chairman, the temporary
secretary, the permanent chairman, the permanent secretary, or an
inspector of votes at any meeting or meetings of bondholders
under the Company Mortgage, or by the Company Mortgage Trustee in
the case of consents of such bondholders which are sought without
a meeting, which states what the signer thereof reasonably
believes will be the proportionate votes or consents of the
holders of all general and refunding mortgage bonds (other than
the General and Refunding Bonds delivered to and held by the
Trustee pursuant to this Indenture) outstanding under the Company
Mortgage and counted for the purposes of determining whether such
bondholders have approved or consented to the matter put before
them.
Any action taken by the Trustee in accordance with the
provisions of this Section 9.13 shall be binding upon the Issuer
and the Bondholders.
SECTION 9.14. Surrender of General and Refunding Bonds.
The Trustee shall surrender General and Refunding Bonds to the
Company Mortgage Trustees in accordance with the provisions of
Section 4.3(d), (e) and (g) of the Refunding Agreement.
SECTION 9.15. Notice to Company Mortgage Trustees. In the
event that a payment on the General and Refunding Bonds shall
have become due and payable and shall not have been fully paid
after the expiration of the applicable grace period, the Trustee
shall immediately give notice thereof to the Company Mortgage
Trustees specifying the amount of funds required to make such
payment. In the event that the Bonds (or any portion thereof)
are to be redeemed pursuant to any provisions of this Indenture
requiring mandatory redemption of such Bonds (other than at the
direction of the Company), the Trustee shall forthwith give
notice thereof to the Company Mortgage Trustees specifying the
principal amount of Bonds so to be redeemed and the redemption
date therefor. Any such notice given by the Trustee shall be
signed by its President, a Vice President or a Trust Officer
thereof. The Trustee shall incur no liability for failure to
give any such notice and such failure shall have no effect on the
obligations of the Company on the General and Refunding Bonds or
on the rights of the Trustee or of the bondholders.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
SECTION 10.1. Events of Default Defined. Each of the
following shall be an "Event of Default" hereunder:
(a) Payment of the principal or redemption price of
any Bond is not made when it becomes due and payable at the
Maturity Date or upon call for redemption or upon a
declaration of acceleration; or
(b) Payment of any interest on any Bond is not made
within two (2) Business Days, if such failure shall occur
with respect to Bonds accruing interest at a Dutch Auction
Rate, or within sixty (60) days if such failure shall occur
with respect to Bonds accruing interest at a Daily,
Commercial Paper, Weekly or Multiannual Rate, after it
becomes due and payable; or
(c) The occurrence and continuance of any "Event of
Default" under Section 8.1(a) of the Agreement; or
(d) 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 Issuer and the Company
by the Trustee, which may give such notice in its discretion
and shall give such notice at the written request of the
holders of not less than ten percent (10%) in aggregate
principal amount of the Bonds then outstanding, unless the
Trustee, or the Trustee and holders of an 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 Issuer, or
the Company on behalf of the Issuer, within such period and
is being diligently pursued; or
(e) If payment of the Purchase Price of any Bond
required to be purchased pursuant to Section 4.3 is not made
when such payment becomes due and payable; or
(f) The occurrence and continuance of any "Event of
Default" under Section 8.1(b), (d) or (e) of the Refunding
Agreement or any Event of Default under Section 8.1(c) of
the Refunding Agreement which arises as the result of the
failure of the Company to observe and perform the provisions
of Section 6.8 of the Refunding Agreement.
SECTION 10.2. Acceleration and Annulment Thereof. If any
Event of Default described in clause (a), (b), (e) or (f) of
Section 10.1 hereof occurs and is continuing, the Trustee may,
and upon request of the owners of at least twenty-five percent
(25%) in aggregate principal amount of all Bonds then Outstanding
shall, by notice in writing to the Issuer and the Company,
declare the principal of all Bonds then Outstanding to be
immediately due and payable; and upon such declaration the said
principal, together with interest accrued thereon to the date of
acceleration, shall become due and payable immediately at the
place of payment provided therein, anything in the Indenture or
in the Bonds to the contrary notwithstanding. Upon the
occurrence of any acceleration hereunder, the Trustee shall
immediately declare all payments under the Agreement pursuant to
Section 4.2 thereof to be due and payable immediately.
Upon the occurrence and continuance of an Event of Default
under Section 10.1(c) hereof, and further upon the condition
that, in accordance with the terms of the Company Mortgage, the
General and Refunding Bonds shall have become immediately due and
payable pursuant to any provision of the Company Mortgage, the
Bonds 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 writing to the Issuer and the Company, and notice to
Bondholders in the same manner as a notice of redemption under
Section 8.4 hereof.
Immediately after any acceleration hereunder, the Trustee,
to the extent it has not already done so, shall notify in writing
the Issuer, the Company, the Paying Agent and the Remarketing
Agent of the occurrence of such acceleration. Upon the
occurrence of any acceleration hereunder, the Trustee shall
notify by first class mail, postage prepaid, the owners of all
Bonds Outstanding of the occurrence of such acceleration.
If, after the principal of the Bonds has become due and
payable, all arrears of interest upon the Bonds are paid by the
Issuer, and the Issuer also performs all other things in respect
to which it may have been in default hereunder and pays all
amounts due the Trustee under Section 11.7 and the Bondholders,
including but not limited to reasonable attorneys' fees, then,
and in every such case, the owners of a majority in principal
amount of the Bonds then Outstanding, by notice to the Issuer and
to the Trustee, may annul such acceleration and its consequences,
and such annulment shall be binding upon the Trustee and upon all
owners of Bonds issued hereunder. 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 any
notice from Bondholders received by it pursuant to this paragraph
to the Company. Immediately upon such annulment, the Trustee
shall cancel, by notice to the Company, any demand for prepayment
of all amounts due under the Agreement made by the Trustee
pursuant to this Section. The Trustee shall promptly give
written notice of such annulment to the Issuer, the Company, the
Paying Agent, the Remarketing Agent, and, if notice of the
acceleration of the Bonds shall have been given to the
Bondholders, shall give notice thereof to the Bondholders.
SECTION 10.3. Other Remedies. If any Event of Default
occurs and is continuing, the Trustee, before or after the
principal of the Bonds becomes immediately due and payable, may
enforce each and every right granted to it under the Agreement
and any supplements or amendments thereto. In exercising such
rights and the rights given the Trustee under this Article, the
Trustee shall take such action as, in the judgment of the Trustee
applying the standards described in Section 11.1, would best
serve the interests of the Bondholders.
SECTION 10.4. 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 Owners of a
majority in principal amount of all Bonds then Outstanding and
receipt of indemnity to its satisfaction shall, in its own name:
(1) 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 Issuer to enforce any
rights under the Agreement and to require the Issuer to
carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under
the Act;
(2) Bring suit to enforce the Bonds;
(3) By action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for
the Bondholders; and
(4) By action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Bondholders.
SECTION 10.5. Discontinuance of Proceedings by Trustee. If
any proceeding commenced by the Trustee on account of any Event
of Default is discontinued or is determined adversely to the
Trustee, then the Company, the Issuer, the Trustee and the
Bondholders shall be restored to their former positions and
rights hereunder as though no such proceedings had been
commenced.
SECTION 10.6. Bondholders May Direct Proceedings. The
Owners of a majority in principal amount of the Bonds Outstanding
shall have the right, after furnishing indemnity satisfactory to
the Trustee, to direct the method and place of conducting all
remedial proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture or any
other proceedings hereunder, provided that such direction shall
not be in conflict with any rule of law or with this Indenture or
unduly prejudice the rights of minority Bondholders.
SECTION 10.7. Limitations on Actions by Bondholders. No
Bondholder shall have any right to pursue any remedy hereunder
unless:
(a) the Trustee shall have been given written notice
of an Event of Default or the Trustee shall, pursuant to
Section 11.6, be deemed to have notice thereof,
(b) the Owners of a majority in principal amount of
all Bonds then Outstanding shall have requested the Trustee,
in writing, to exercise the powers hereinabove granted or to
pursue such remedy in its or their name or names,
(c) the Trustee shall have been offered indemnity
satisfactory to it against costs, expenses and liabilities,
including, without limitation, costs and expenses of its
counsel, to be incurred in compliance with such request, and
(d) the Trustee shall have failed to comply with such
request within 60 days after receipt of such notice, request
and offer of indemnity.
It is understood and intended that no one or more
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders or to obtain
or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit
of all the Holders.
Notwithstanding the foregoing provisions of this Section or
any other provision of this Indenture, the obligation of the
Issuer shall be absolute and unconditional to pay hereunder, but
solely from the Revenues and other funds pledged under this
Indenture, the principal or redemption price of, and interest on,
the Bonds to the respective owners thereof on the respective due
dates thereof, and nothing herein shall affect or impair the
right of action, which is absolute and unconditional, of such
owners to enforce such payment.
SECTION 10.8. Trustee May Enforce Rights Without Possession
of Bonds. All rights under the Indenture and the Bonds may be
enforced by the Trustee without the possession of any Bonds or
the production thereof at the trial or other proceedings relative
thereto, and any proceeding instituted by the Trustee shall be
brought in its name for the ratable benefit of the owners of the
Bonds.
SECTION 10.9. Remedies Not Exclusive. No remedy herein
conferred is intended to be exclusive of any other remedy or
remedies, and each remedy is in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
SECTION 10.10. Delays and Omissions Not to Impair Rights.
No delays or omission in respect of exercising any right or power
accruing upon any default shall impair such right or power or be
a waiver of such default, and every remedy given by this Article
may be exercised from time to time and as often as may be deemed
expedient.
SECTION 10.11. Application of Moneys in Event of Default.
Any moneys received by the Trustee under this Article shall be
applied in the following order:
(1) To the payment of all amounts due and owing the
Trustee under Section 11.7 hereof, including but not limited
to the reasonable costs and expenses of the Trustee,
including reasonable counsel fees, any disbursements of the
Trustee with interest thereon at the prime rate of the
Trustee and its reasonable compensation; and
(2) To the payment of principal or redemption price
(as the case may be) and interest then owing on the Bonds,
and in case such moneys shall be insufficient to pay the
same in full, then to the payment of principal or redemption
price and interest ratably, without preference or priority
of one over another or of any installment of interest over
any other installment of interest; and
(3) To the payment of reasonable costs and expenses of
the Issuer, including reasonable counsel fees, incurred in
connection with the Event of Default.
The surplus, if any, shall be paid to the Company.
Funds on deposit in the Bond Purchase Fund shall be applied
in accordance with Section 4.4 hereof.
SECTION 10.12. Trustee and Bondholders Entitled to All
Remedies Under the Act. It is the purpose of this Article to
provide such remedies to the Trustee and the Bondholders as may
be lawfully granted under the provisions of the Act, but should
any remedy herein granted be held unlawful, the Trustee and the
Bondholders shall nevertheless be entitled to every other remedy
granted hereunder and every remedy provided by the Act. It is
further intended that, insofar as lawfully possible, the
provisions of this Article shall apply to and be binding upon any
trustee or receiver appointed under applicable law.
SECTION 10.13. Waiver. The provisions of this Article X are
subject to the condition that any waiver of any "Default" under
the Company Mortgage and a rescission and annulment of its
consequences shall constitute a waiver of the corresponding Event
or Events of Default under clause (c) of Section 10.1 hereof and
a rescission and annulment of the consequences thereof, but no
such waiver, rescission and annulment shall extend to or affect
any subsequent Event of Default or impair any right or remedy
consequent thereon.
ARTICLE XI
THE TRUSTEE
SECTION 11.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall
exercise its rights and powers and use the same degree of care
and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of
Default,
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and
no others; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act
or its own willful misconduct, except that
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a responsible
officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 10.6 hereof; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to all the paragraphs of
this Section.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense,
but the Trustee may not require indemnity as a condition to
declaring the principal of and interest on the Bonds to be
due immediately under Section 10.2 hereof.
SECTION 11.2. No Responsibility for Recitals, etc. The
recitals, statements and representations in this Indenture or in
the Bonds, save only the Trustee's Certificate of Authentication
upon the Bonds, have been made by the Issuer and not by the
Trustee; and the Trustee shall be under no responsibility for the
correctness thereof, or for the validity, priority, recording or
re-recording, filing or re-filing of this Indenture or the
Agreement or any financing statements, amendments thereto or
continuation statements, or for insuring the Facilities or
collecting any insurance moneys, or for the validity of the
execution by the Issuer of this Indenture or of any supplements
thereto or instruments of further assurance, or for the validity
or sufficiency of the security afforded by this Indenture or the
Bonds issued hereunder or intended to be secured hereby, or as to
the maintenance of the security hereof.
SECTION 11.3. Rights of Trustee. Subject to the foregoing
Section:
(a) The Trustee may rely on any document believed by
it to be genuine and to have been executed or presented by
the proper person. The Trustee need not investigate any
facts or matters stated in such document.
(b) Before the Trustee acts or refrains from acting,
it may require a certificate of an appropriate officer or
officers of the Issuer or the Company or a Favorable Opinion
of Bond Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance
on the certificate or such opinion of counsel.
(c) The Trustee may execute any of its duties
hereunder through agents, attorneys-in-fact or co-trustees,
and shall not be responsible for the misconduct or
negligence of any agent, attorney-in-fact or co-trustee
selected by it with reasonable care.
SECTION 11.4. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or
pledgee of Bonds and may otherwise deal with the Issuer or with
the Company or its affiliates with the same rights it would have
if it were not Trustee. Any Paying Agent may do the same with
like rights.
SECTION 11.5. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture
or the Bonds and it shall not be responsible for any statement in
the Bonds other than its certificate of authentication.
SECTION 11.6. Notice of Defaults. The Trustee shall not be
required to take notice, or be deemed to have notice, of any
Event of Default under this Indenture, other than an Event of
Default under clause (a), (b) or (e) of Section 10.1 hereof (but,
with respect to an Event of Default under Section 10.1(e) hereof,
only to the extent that the Trustee has received notice thereof
from the Paying Agent) concerning which the Trustee shall be
deemed to have notice, unless the Trustee shall have been
specifically notified in writing of such an Event of Default. If
an Event of Default occurs and is continuing and if it is known
to or deemed to be known by the Trustee, the Trustee shall mail
to each Bondholder notice of the event within 90 days after it
occurs. Except in the case of a default in payment or purchase
of any Bonds, the Trustee may withhold the notice if and so long
as a committee of its responsible officers in good faith
determines that withholding the notice is in the interests of
Bondholders. If an Event of Default occurs or if an event occurs
which with the giving of notice or lapse of time or both would be
an Event of Default, the Trustee shall, immediately upon becoming
aware of such Event of Default or such event, give immediate
written notice thereof to the Remarketing Agent.
SECTION 11.7. Compensation of Trustee and Indemnity. (a)
For acting under this Indenture, the Trustee shall be entitled to
payment for its services and reimbursement of advances, counsel
fees and other expenses as shall be agreed to between the Trustee
and the Company or, in the absence of any such agreement, to
payment of such fees and expenses as may be reasonably made or
incurred by the Trustee and reasonable in amount in connection
with its services under this Indenture.
To secure the payment or reimbursement to the Trustee
provided for in this paragraph (a), the Trustee shall have a
prior lien on all money or property held or collected by the
Trustee, except moneys or obligations held in trust to pay
principal of, premium, if any, and interest on particular Bonds.
(b) Pursuant to the terms of Section 4.6 of the Refunding
Agreement, the terms of which are incorporated herein
by reference, the Company will, among other things,
indemnify and hold the Trustee free and harmless from
any loss, claim, damage, tax, penalty, liability
(including but not limited to liability for any patent
infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out
of, or in any way relating to, the execution or
performance of the Refunding Agreement, the issuance or
sale of the Bonds, actions taken under the Indenture,
or any other cause whatsoever pertaining to the
Facilities, including without limitation, recovery
costs arising from the presence of hazardous
substances, except in any case as a result of the
negligence or bad faith of the Trustee.
SECTION 11.8. Eligibility of Trustee. This Indenture shall
always have a Trustee that is a corporation organized and doing
business under the laws of the United States or any state or the
District of Columbia, is authorized under such laws to exercise
corporate trust powers, is subject to supervision or examination
by United States or State authority and has a combined capital
and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition.
SECTION 11.9. Replacement of Trustee. The Trustee may
resign by notifying the Issuer and the Company. The owners of a
majority in principal amount of the Bonds then outstanding may
remove the Trustee by notifying the removed Trustee and may
appoint a successor Trustee with the Issuer's and Company's
consent. The Company may, with the consent of the Issuer (which
consent will not be unreasonably withheld), remove the Trustee so
long as no Event of Default (or any event which, with the passage
of time or the giving of notice or both, will become an Event of
Default) has occurred and is continuing. Notwithstanding the
foregoing, no resignation or removal of the Trustee shall be
effective until a successor is appointed.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Issuer, with the
consent of the Company, shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuer.
Immediately thereafter, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee shall then (but
only then) become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Issuer, the Company or the holders of a majority in
principal amount of the Bonds then outstanding may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee no longer meets the qualifications in Section
11.8 hereof, any Bondholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
SECTION 11.10. Merger of Trustee. Any corporation into
which any Trustee hereunder may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which any Trustee hereunder shall be a party,
shall be the successor trustee under the Indenture, without the
execution or filing of any paper or any further act on the part
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 11.11. Trustee Not Required to Expend or Risk Own
Funds. No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 11.12. Trust Estate may be Vested in Separate or Co-
Trustee. It is the purpose of this Indenture that there shall be
no violation of any law of any jurisdiction (including
particularly the law of the State) denying or restricting the
right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that
in case of litigation under this Indenture or the Agreement, and
in particular in case of the enforcement of either on default, or
in case the Trustee deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the powers,
rights or remedies herein granted to the Trustee or hold title to
the trust estate, in trust, as herein granted, or take any other
action which may be desirable or necessary in connection
therewith, it may be necessary that the Trustee appoint an
additional individual or institution as a separate or co-trustee.
The following provisions of this Section are adapted to these
ends.
In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and
every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended
by this Indenture to be exercised by or vested in or conveyed to
the Trustee with respect thereto shall be exercisable by and
vested in such separate or co-trustee but only to the extent
necessary to enable such separate or co-trustee to exercise such
powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee
shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from
the Issuer be required by the separate trustee or co-trustee so
appointed by the Trustee for more fully and certainly vesting in
and confirming to him such properties, rights, powers, trusts,
duties and obligations, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate
trustee or co-trustee, or a successor to either, shall become
incapable of acting, resign or be removed, all the estate
properties, rights, powers, trusts, duties and obligations of
such separate trustee or co-trustee, so far as permitted by law,
shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate
trustee or co-trustee.
SECTION 11.13. Reliance Upon Counsel. The Trustee may
consult with counsel satisfactory to it, and the written opinion
of such counsel selected by the Trustee or any Favorable Opinion
of Bond Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by such
Trustee hereunder in good faith and in accordance with the
opinion of such counsel.
ARTICLE XII
THE REMARKETING AGENT; THE PAYING AGENT;
THE AUCTION AGENT AND THE MARKET AGENT
SECTION 12.1. The Remarketing Agent. (a) The initial
Remarketing Agent under this Indenture shall be Morgan Stanley &
Co. Incorporated. The Remarketing Agent shall accept the duties
and obligations imposed on it under this Indenture pursuant to
the Remarketing Agreement.
(b) In addition to the other obligations imposed on the
Remarketing Agent hereunder, the Remarketing Agent shall agree to
keep such books and records as shall be consistent with prudent
industry practice and make such books and records available for
inspection by the Issuer, the Trustee and the Company at all
reasonable times.
(c) If at any time the Remarketing Agent is unable or
unwilling to act as Remarketing Agent, the Remarketing Agent,
upon 30 days' prior written notice to the Issuer, the Trustee,
the Paying Agent, the Bond Insurer and the Company, may resign.
The Remarketing Agent may be removed at any time upon 5 days
prior written notice by the Company, by written notice signed by
the Company delivered to the Trustee and the Remarketing Agent,
with a copy to the Issuer. Upon resignation or removal of the
Remarketing Agent, the Company shall appoint a successor
Remarketing Agent to act in such capacity, and the Remarketing
Agent shall assign and deliver the Remarketing Agreement to the
successor Remarketing Agent. No resignation or removal will be
effective until the successor has delivered an acceptance of its
appointment and the terms of the Remarketing Agreement to the
Trustee. Any successor Remarketing Agent shall be a nationally
recognized broker-dealer who engages in the remarketing of
securities similar to the Bonds and has outstanding debt
obligations assigned ratings no lower than Baa3/P-3 or better by
Moody's, if the Bonds are then rated by Moody's, or BBB- by S&P,
if the Bonds are then rated by S&P, or be otherwise acceptable to
Moody's, if the Bonds are then rated by Moody's, and S&P, if the
Bonds are then rated by S&P.
(d) In the event that the Company shall fail to appoint a
successor Remarketing Agent, upon the resignation or removal of
the Remarketing Agent or upon its dissolution, insolvency or
bankruptcy, the Trustee may either appoint a Remarketing Agent or
itself act as Remarketing Agent until the appointment of a
successor Remarketing Agent in accordance with this Section;
provided, however, that the Trustee, in its capacity as
Remarketing Agent, shall not be required to sell Bonds.
SECTION 12.2. The Paying Agent. (a) The Paying Agent
shall agree to
(i) hold all sums held by it for the payment of the
principal or redemption price of, or interest on, Bonds in
trust for the benefit of the owners of such Bonds until such
sums shall be paid to such owners or otherwise disposed of
as herein provided,
(ii) at any time during the continuance of any default
in the payment of principal or redemption price of or
interest on the Bonds, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent,
(iii) hold all Bonds delivered to it pursuant to
Sections 4.1 and 4.2, as agent and bailee of, and in escrow
for the benefit of, the respective owners thereof until
moneys representing the Purchase Price of such Bonds shall
have been delivered to or for the account of or to the order
of such owners;
(iv) hold all moneys (without investment thereof)
delivered to it hereunder for the purchase of Bonds pursuant
to Sections 4.1 and 4.2, as agent and bailee of, and in
escrow for, and for the benefit of, the person or entity
which shall have so delivered such moneys until the Bonds
purchased with such moneys shall have been delivered to or
for the account of such person or entity;
(v) hold Bonds for the account of the Company as
contemplated by Section 4.3 hereof; and
(vi) keep such books and records as shall be consistent
with prudent industry practice and to make such books and
records available for inspection by the Issuer, the Trustee
and the Company at all reasonable times.
(b) The Paying Agent shall be a corporation duly organized
under the laws of the United States of America or any state or
territory thereof, or a bank or trust company having a combined
capital stock, surplus and undivided profits of at least
$50,000,000 and authorized by law to perform all the duties
imposed upon it by this Indenture. The Paying Agent may at any
time resign and be discharged of the duties and obligations
created by this Indenture by giving at least 60 days' notice to
the Issuer, the Trustee, the Company and the Remarketing Agent.
In the event that the Issuer, at the request of the Company,
shall fail to appoint a successor Paying Agent, upon the
resignation or removal of the Paying Agent, the Trustee shall
either appoint a Paying Agent or itself act as Paying Agent until
the appointment of a successor Paying Agent. The Paying Agent
may be removed at any time by an instrument signed by the
Company, filed with the Issuer, the Trustee and the Remarketing
Agent.
In the event of the resignation or removal of the Paying
Agent, the Paying Agent shall deliver any Bonds and moneys held
by it in such capacity to its successor or, if there is no
successor, to the Trustee.
(c) The Paying Agent in performing its duties hereunder
shall be entitled to the same protective provisions in the
performance of its duties as are specified in Article XI of this
Indenture with respect to the Trustee hereunder to the same
extent and as fully for all intents and purposes as though the
Paying Agent had been expressly named therein in place of such
Trustee and as though the applicable provisions of Article XI of
this Indenture had been set forth herein at length.
SECTION 12.3. Notices. The Trustee shall, within 30 days
of the resignation or removal of the Remarketing Agent or the
Paying Agent or the appointment of a successor Remarketing Agent
or Paying Agent, give notice thereof by first class mail, postage
prepaid, to the owners of the Bonds.
SECTION 12.4. Appointment of Auction Agent; Qualifications
of Auction Agent; Resignation; Removal. The Chase Manhattan Bank
is hereby appointed as the initial Auction Agent. On or before
the effective date of a subsequent conversion to a Dutch Auction
Rate Period, an Auction Agent shall be appointed by the Company.
The Auction Agent shall evidence its acceptance of such
appointment by entering into an Auction Agent Agreement with the
Company. The Auction Agent shall be (a) a bank or trust company
duly organized under the laws of the United States of America or
any state or territory thereof having its principal place of
business in the Borough of Manhattan, in the City of New York and
having a combined capital stock, surplus and undivided profits of
at least $15,000,000 or (b) a member of the National Association
of Securities Dealers, Inc., having a capitalization of at least
$15,000,000 and, in either case, authorized by law to perform all
the duties imposed upon it under the Auction Agent Agreement.
The Auction Agent may at any time resign and be discharged of the
duties and obligations created by this Indenture by giving at
least 45 days' notice to the Trustee, the Company, the Market
Agent and the Issuer. The Auction Agent may be removed at any
time by the Company upon at least 45 days' notice; provided that,
the Company shall have entered into an agreement in substantially
the form of the Auction Agent Agreement with a successor Auction
Agent.
SECTION 12.5. Several Capacities. Anything herein to the
contrary notwithstanding, the same entity may serve hereunder as
the Trustee, the Paying Agent or a Co-Paying Agent, the Bond
Registrar, the Tender Agent, the Auction Agent, the Remarketing
Agent and the Market Agent, and in any combination of such
capacities to the extent permitted by law.
SECTION 12.6. Market Agent. Morgan Stanley & Co.
Incorporated is hereby appointed as the initial Market Agent. On
or before the effective date of a subsequent conversion to an
Auction Period, a Market Agent shall be appointed by the Company.
Any such Market Agent shall be a Broker-Dealer, and shall signify
its acceptance of the duties and obligations imposed on it
hereunder as Market Agent by the execution of the Broker-Dealer
Agreement. During an Auction Period, all references in this
Indenture to the Remarketing Agent shall, to the extent not
inconsistent with the rights, duties and obligations of the
Market Agent per se, be deemed to refer to the Market Agent.
ARTICLE XIII
ACTS OF BONDHOLDERS; EVIDENCE OF OWNERSHIP
SECTION 13.1. Acts of Bondholders; Evidence of Ownership.
Except as otherwise stated herein, any action to be taken by
Bondholders may be evidenced by one or more concurrent written
instruments of similar tenor signed or executed by such
Bondholders in person or by an agent appointed in writing. The
fact and date of the execution by any person of any such
instrument may be proved by any manner which the Trustee deems
sufficient. The ownership of the Bonds shall be proved by the
Bond Register. Any action by the owner of any Bond shall bind
all future owners of the same Bond in respect of anything done or
suffered by the Issuer or the Trustee in pursuance thereof.
ARTICLE XIV
AMENDMENTS AND SUPPLEMENTS
SECTION 14.1. Amendments and Supplements Without
Bondholders' Consent. This Indenture may be amended or
supplemented at any time and from time to time, without the
consent of the Bondholders, but with the consent of the
Remarketing Agent, the Auction Agent, the Market Agent or the
Paying Agent, as the case may be, if the amendment or supplement
would materially adversely affect or alter the duties or
obligations of the Remarketing Agent, the Auction Agent, the
Market Agent or the Paying Agent under this Indenture, by a
supplemental indenture authorized by an ordinance of the Issuer
and filed with the Trustee, for one or more of the following
purposes:
(a) to add additional covenants of the Issuer or to
surrender any right or power herein conferred upon the
Issuer;
(b) for any purpose not inconsistent with the terms of
this Indenture or to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in
any supplemental indenture;
(c) to permit the Bonds to be converted to
certificateless securities or vice versa or securities
represented by a master certificate held in trust, ownership
of which, in either case, is evidenced by book entries on
the books of the Bond Registrar, for any period of time;
(d) to permit the appointment of a co-trustee under
this Indenture;
(e) to authorize different authorized denominations of
the Bonds and to make correlative amendments and modifica
tions to this Indenture regarding exchangeability of Bonds
of different authorized denominations, redemptions of
portions of Bonds of particular authorized denominations and
similar amendments and modifications of a technical nature;
(f) to modify, alter, supplement or amend this
Indenture in such manner as shall permit the qualification
hereof under the Trust Indenture Act of 1939, as from time
to time amended;
(g) to modify, alter, amend, supplement or restate the
Indenture in any and all respects necessary, desirable or
appropriate in connection with the delivery to the Trustee
of a letter of credit, liquidity facility, standby bond
purchase agreement or other security arrangement or credit
enhancement obtained or provided by the Company;
(h) to modify the provisions for optional redemption
set forth in Section 8.1(a)(iii) at the commencement of a
Multiannual Rate Period; or
(i) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clauses (a) through (f) of Section 14.2.
Before the Issuer and the Trustee shall enter into any
supplemental indenture pursuant to this Section, there shall have
been delivered to the Trustee a Favorable Opinion of Bond Counsel
stating the requirements of such opinion and also stating that
such supplemental indenture will, upon the execution and delivery
thereof, be valid and binding upon the Issuer in accordance with
its terms.
SECTION 14.2. Amendments With Bondholders' Consent. This
Indenture may be amended from time to time, except with respect
to (a) the principal, redemption price, Purchase Price and
interest payable upon any Bonds, (b) the Interest Payment Dates,
the Maturity Date or the redemption or purchase provisions of any
Bonds (except as provided in Section 14.1(h)), (c) this Article,
(d) the creation of any lien ranking prior to or on a parity with
the lien of this Indenture on the Trust Estate or any part
thereof, except as expressly permitted hereby, (e) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, and
(f) depriving the holder of any Bond then outstanding of the lien
hereby created in the Trust Estate, by a supplemental indenture
consented to by the Company, and if the amendment or supplement
would materially adversely affect or alter the duties or
obligations of the Remarketing Agent, the Auction Agent, the
Market Agent or the Paying Agent under this Indenture, with the
consent of the Remarketing Agent, the Auction Agent, the Market
Agent or the Paying Agent, as the case may be, and approved by
the owners of a majority in aggregate principal amount of the
Bonds then Outstanding which would be affected by the action
proposed to be taken. This Indenture may be amended with respect
to the matters enumerated in clauses (a) through (f) of the
preceding sentence with the unanimous consent of all Bondholders,
the Company and the Paying Agent or Remarketing Agent if required
by the preceding sentence of this Section.
Before the Issuer and the Trustee shall enter into any
supplemental indenture pursuant to this Section, there shall have
been delivered to the Trustee a Favorable Opinion of Bond Counsel
stating the requirements of such opinion and also stating that
such supplemental indenture will, upon the execution and delivery
thereof, be valid and binding upon the Issuer in accordance with
its terms.
Anything herein to the contrary notwithstanding, so long as
the Company is not in default under the Agreement, a supplemental
indenture under this Article which affects any right of the
Company shall not become effective unless and until the Company
shall have consented in writing to the execution and delivery of
such supplemental indenture.
SECTION 14.3. Amendment of Agreement. The Issuer and the
Company may enter into, with the consent of the Trustee but
without the consent of the holders of the Bonds, any amendment,
change or modification of the Agreement to cure any ambiguity,
formal defect, omission or inconsistent provisions or to make any
other change that does not adversely affect the interest of the
Bondholders. If the Issuer and the Company propose to amend the
Agreement in such a manner as would adversely affect the
interests of the Bondholders, the Trustee shall notify
Bondholders of the proposed amendment and may consent thereto
with the consent of a majority in aggregate principal amount of
the Bonds then Outstanding which would be affected by the action
proposed to be taken; provided, that the Trustee shall not,
without the unanimous consent of the owners of all Bonds then
Outstanding, consent to any amendment which would (a) decrease
the payments payable, or change the date payments are so payable,
under Section 4.2 of the Agreement, consent to any amendment
which would change the obligations of the Company under Section
4.3 of the Agreement or the nature of the obligations of the
Company on the General and Refunding Bonds as provided in Section
4.3 of the Agreement, (b) reduce the stated term of the
Agreement, (c) reduce the Company's obligations under Section 4.2
of the Agreement, or (d) reduce the aforesaid aggregate principal
amount of the Bonds, the owners of which are required to consent
to such an amendment.
Before the Issuer and the Company enter into, or otherwise
agree to, any amendment, change or modification of the Agreement
pursuant to this Section, there shall have been delivered to the
Trustee a Favorable Opinion of Bond Counsel stating the
requirements of such opinion and also stating that such
amendment, change or modification will, upon the execution and
delivery thereof, be valid and binding upon the Issuer in
accordance with its terms.
SECTION 14.4. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to
join with the Issuer in the execution and delivery of any supple
mental indenture or amendment permitted by this Article and in so
doing shall be fully protected by a Favorable Opinion of Bond
Counsel that such supplemental indenture or amendment is so
permitted and has been duly authorized by the Issuer and that all
things necessary to make it a valid and binding agreement have
been done.
ARTICLE XV
DEFEASANCE
SECTION 15.1. Defeasance. (a) If the Issuer shall pay or
cause to be paid to the holders and owners of the Bonds the
principal of and interest to become due thereon at the times and
in the manner stipulated therein, and if the Issuer shall keep,
perform and observe all and singular the covenants and promises
in the Bonds and in this Indenture expressed as to be kept,
performed and observed by it on its part and shall pay or cause
to be paid or provide for the payment of all other sums payable
hereunder by the Issuer, then these presents and the estate and
rights hereby granted shall cease, terminate and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the Issuer such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the Issuer the estate hereby conveyed, and assign and
deliver to the Issuer any property at the time subject to the
lien of this Indenture which may then be in its possession,
except moneys or Government Securities held by it for the payment
of the principal of and interest on the Bonds. Notwithstanding
the satisfaction and discharge of this Indenture, the obligations
of the Company under Section 11.7 shall survive.
(b) Provision for the payment of Bonds shall be deemed to
have been made when the Trustee holds in the Bond Fund, in trust
and irrevocably set aside exclusively for such payment, (i)
moneys sufficient to make such payment and any payment of the
Purchase Price of Bonds pursuant to Sections 4.1 and 4.2; and/or
(ii) noncallable, nonprepayable Government Securities (provided
that in either case the Trustee and the Bond Insurer shall have
received a Favorable Opinion of Bond Counsel) maturing as to
principal and interest in such amounts and at such times as will
provide sufficient moneys (without consideration of any reinvest
ment thereof) to make such payment and any payment of the
Purchase Price of Bonds pursuant to Sections 4.1 and 4.2, and
which are not subject to prepayment, redemption or call prior to
their stated maturity; provided that the Trustee, the Bond
Insurer, S&P and Moody's shall have received a Favorable Opinion
of Bond Counsel to the effect that the Bonds are defeased in
accordance with the requirements of this Article.
No Bonds in respect of which a deposit under clause (i) or
(ii) above has been made shall be deemed paid within the meaning
of this Article unless the Trustee is satisfied that the amounts
deposited are sufficient to make all payments that might become
due on the Bonds, with respect to which the Trustee may rely on a
certificate of independent certified public accountants, a copy
of which certificate shall also be furnished to Moody's and the
Bond Insurer, if the Bonds are then rated by Moody's; provided
that, notwithstanding any other provision of this Indenture, any
Bonds purchased with such moneys pursuant to Section 4.3 shall be
surrendered to the Trustee for cancellation and shall not be
remarketed, and provided further that the Issuer shall, as a
condition to defeasance, obtain written evidence from S&P, if the
Bonds are then rated by S&P, and Moody's, if the Bonds are then
rated by Moody's, that such defeasance will not result in a
reduction or withdrawal of the then current rating on the Bonds.
Neither the obligations nor moneys deposited with the Trustee
pursuant to this Section shall be withdrawn or used for any
purpose other than, and shall be segregated and held in trust
for, the payment of the principal, redemption price or purchase
price of and interest on the Bonds with respect to which such
deposit has been made. In the event that such moneys or
obligations are to be applied to the payment of principal or
redemption price of any Bonds more than 60 days following the
deposit thereof with the Trustee, the Trustee shall mail a notice
to the owners of the Bonds to be redeemed or deemed paid or
redeemed, stating that such moneys or obligations have been
deposited and identifying the Bonds for the payment of which such
moneys or obligations are being held to all owners of Bonds for
the payment of which such moneys or obligations are being held at
their registered addresses and to the Bond Insurer and to S&P, if
the Bonds are then rated by S&P, and Moody's, if the Bonds are
then rated by Moody's.
(c) Anything in Article XV to the contrary notwithstanding,
if moneys or Government Securities have been deposited or set
aside with the Trustee pursuant to this Article for the payment
of the principal or redemption price of the Bonds and the
interest thereon and the principal or redemption price of such
Bonds and the interest thereon shall not have in fact been
actually paid in full, no amendment to the provisions of this
Article shall be made without the consent of the owner of each of
the Bonds affected thereby.
The Issuer or the Company may at any time surrender to the
Trustee for cancellation by it any Bonds previously authenticated
and delivered hereunder, which the Issuer or the Company may have
acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and
retired.
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1. No Personal Recourse. No recourse shall be
had for any claim based on the Agreement, the Indenture or the
Bonds against any member, officer or employee, past, present or
future, of the Issuer or of any successor body as such, either
directly or through the Issuer or any such successor body, under
any constitutional provision, statute or rule of law or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
SECTION 16.2. Deposit of Funds for Payment of Bonds. If
the principal or redemption price of any Bonds becoming due,
either at the Maturity Date or by call for redemption or
otherwise, together with all interest accruing thereon to the due
date, has been paid or provision therefor made in accordance with
Section 15.1, all interest on such Bonds shall cease to accrue on
the due date and all liability of the Issuer with respect to such
Bonds shall likewise cease, except as hereinafter provided.
Thereafter the owners of such Bonds shall be restricted
exclusively to the funds so deposited for any claim of whatsoever
nature with respect to such Bonds, and the Trustee shall hold
such funds in trust for such owners.
Moneys which remain unclaimed two years after the due date
shall, at the written request of the Company, and if the Issuer
is not, at the time, to the knowledge of the Trustee, in default
with respect to any covenant in the Indenture or the Bonds, be
paid to the Company, and the owners of the Bonds for which the
deposit was made shall thereafter be limited to a claim against
the Company. Such moneys shall be held in trust uninvested or
invested in Government Securities maturing the next day.
SECTION 16.3. Effect of Purchase of Bonds. No purchase of
Bonds pursuant to Article IV shall be deemed to be a payment or
redemption of such Bonds or any portion thereof and such purchase
will not operate to extinguish or discharge the indebtedness
evidenced by such Bonds unless such Bonds are purchased by the
Company and delivered to the Trustee for cancellation.
SECTION 16.4. No Rights Conferred on Others. Nothing
herein contained shall confer any right upon any person other
than the parties hereto, the Company, the Bond Insurer and the
owners of the Bonds.
SECTION 16.5. Severability. If any term or provision of
this Indenture or the Bonds or the application thereof for any
reason or circumstance shall to any extent be held invalid or
unenforceable, the remaining provisions or the application of
such term or provision to persons and situations other than those
as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision hereof and thereof
shall be valid and enforced to the fullest extent permitted by
law.
SECTION 16.6. Notices. Unless otherwise provided hereunder
or in the Agreement, all notices, certificates or other
communications hereunder to be given by any of the following
parties to any of the other following parties shall be deemed to
have been sufficiently given and received by such parties only
upon actual receipt thereof and if sent by registered mail, by
Electronic Notice, by telephone, confirmed in writing, to the
relevant party as follows:
Company: Entergy Mississippi, Inc.
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Telephone number: (504) 576-4363
FAX number: (504) 576-4455
Issuer: Independence County, Arkansas
Independence County Courthouse
192 East Main Street
Batesville, Arkansas 72501
Attention: County Judge
Telephone number: (870) 793-8800
FAX number: (870) 793-8803
Bond Insurer: Ambac Assurance Corporation
One State Street Plaza
New York, NY 10004
Attention: Manager - Utilities Department
Telephone number: (212) 208-3411
Fax number: (212) 797-5725
Trustee, Paying Chase Bank of Texas, National Association
Agent, Bond 600 Travis Street.
Registrar: Suite 1150
Houston, Texas 77002
Attention: Corporate Trust Department
Telephone number: (713) 216-5447
FAX number: (713) 216-5476
Any Paying
Agent other
than the
Trustee: At the address designated to the
Issuer and the Trustee
Remarketing
Agent: Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas, 30th Floor
New York, NY 10020
Attention: Municipal Bond Department
Telephone number: (212) 712-8290
FAX number: (212) 762-8505
All notices or other communications by the Trustee to any
Bondholder hereunder shall be deemed to have been sufficiently
given and received by such Bondholder upon the mailing thereof by
first class mail.
The Issuer, the Company, the Trustee, the Paying Agent, the
Remarketing Agent and the Bond Registrar may, by notice given
hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be
sent.
SECTION 16.7. Successors and Assigns. All the covenants,
promises and agreements in this Indenture contained by or on
behalf of the Issuer, or by or on behalf of the Trustee, shall
bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
SECTION 16.8. Headings for Convenience Only. The
descriptive headings in this Indenture are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 16.9. Counterparts. The Indenture may be executed
in any number of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 16.10. Applicable Law. This Indenture shall be
governed by and construed in accordance with the laws of the
State, provided however, that, unless the law of another
jurisdiction is mandatorily applicable, the duties, liabilities,
rights, privileges and immunities of the Trustee in relation to
the Indenture and the Bonds shall be governed exclusively by the
laws of the State of Texas.
SECTION 16.11. Notice of Change. The Trustee shall give
notice to Moody's (if the Bonds are then rated by Moody's) at 99
Church Street, New York, NY 10007, Attention: Structured Transac
tions Group, Corporate Department, and S&P (if the Bonds are then
rated by S&P) at 25 Broadway, New York, NY 10004, of any of the
following events:
(a) a change in the Trustee or Paying Agent;
(b) a change in the Remarketing Agent;
(c) an amendment to the Indenture or the Agreement;
and
(d) payment or provision therefor of all the Bonds.
SECTION 16.12. Payments Due on non-Business Days. In any
case where the date of payment of interest on or principal of any
Bonds or the date fixed for redemption of any Bonds or any
Purchase Date shall not be a Business Day, then payment of such
interest or principal and any premium or Purchase Price need not
be made by such Paying Agent 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 or
the Purchase Date, and no interest shall accrue for the period
after such date.
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the County Judge and its
corporate seal to be hereunto affixed and attested by the County
Clerk of the Issuer, and, to evidence its acceptance of the trust
hereby created, the Trustee has caused these presents to be
signed in its behalf by one of its Agents and its corporate seal
to be hereto affixed.
INDEPENDENCE COUNTY, ARKANSAS
By:___________________________________
ATTEST: County Judge
By: __________________________________ [SEAL]
County Clerk
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Agent
[SEAL]
Exhibit B-6(a)
Refunding Agreement
between
Independence County, Arkansas
and
Entergy Mississippi, Inc.
Dated as of May 1, 1999
$30,000,000
Independence County, Arkansas
Pollution Control Revenue Refunding Bonds
(Entergy Mississippi, Inc. Project)
Series 1999
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of May 1, 1999 by and
between Independence County, Arkansas, a political subdivision of
the State of Arkansas (the "Issuer"), and Entergy Mississippi,
Inc., a corporation organized under the laws of the State of
Mississippi (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Arkansas, authorized and empowered by law, including
particularly the provisions of Title 14, Chapter 267 of the
Arkansas Code of 1987 Annotated, as amended (the "Act"), to issue
its revenue bonds for the purpose of using the funds derived from
the sale thereof to finance and refinance the acquisition,
construction, reconstruction, extension, equipment or improvement
of pollution control facilities for the disposal or control of
sewage, solid waste, water pollution, air pollution, or any
combination thereof; and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of July 1, 1982 (the "1982 Indenture") by and
between the Issuer and The Bank of New York (successor to Deposit
Guaranty National Bank), as trustee (the "Prior Trustee"), the
Issuer issued its Pollution Control Revenue Bonds, 1982 Series A,
B and C (Mississippi Power & Light Company Project) (the "1982
Bonds") in the aggregate principal amount of $15,000,000 for the
purpose of providing funds to finance the cost of acquiring,
constructing and equipping the Company's interest in certain
pollution control facilities (collectively, the "Facilities") at
the electric generating plant jointly owned by the Company and
others located within the boundaries of the Issuer near Newark,
Arkansas and known as the Independence Steam Electric Station
(the "Plant"); and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of December 1, 1982 (the "1982-A Indenture")
by and between the Issuer and the Prior Trustee, the Issuer
issued its Pollution Control Revenue Bonds, 1982-A Series A and B
(Mississippi Power & Light Company Project) (the "1982-A Bonds")
in the aggregate principal amount of $15,000,000 for the purpose
of providing funds to finance the cost of acquiring, constructing
and equipping the Company's interest in the Facilities at the
Plant; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds are herein
collectively called the "Prior Bonds"; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds were initially
issued as adjustable rate bonds but were converted to fixed rate
bonds pursuant to the provisions of the 1982 Indenture and the
1982-A Indenture, respectively; and
WHEREAS, in furtherance of the statutory purposes of the
Act, the Issuer entered into separate Installment Sale Agreements
pertaining to the 1982 Bonds and the 1982-A Bonds, dated as of
July 1, 1982 and December 1, 1982, respectively, with the
Company, pursuant to which the Issuer acquired the Facilities
from the Company and resold the Facilities to the Company, as
more fully described therein; and
WHEREAS, $15,000,000 of the 1982 Bonds and $15,000,000 of
the 1982-A Bonds are outstanding, and the Company has requested
that the Issuer refund such outstanding 1982 Bonds and 1982-A
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $30,000,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Mississippi, Inc. Project) Series 1999 (the "Bonds"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to this Refunding
Agreement, said Bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Refunding Agreement and any moneys held under the hereinafter
defined Indenture, and said Bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Arkansas, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by order of the County Court of the Issuer,
duly entered;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words and
terms elsewhere defined in this Refunding Agreement or in the
Indenture, the following words and terms as used in this
Refunding Agreement shall have the following meanings unless the
context or use indicates another or different meaning:
"Act" means Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended, and all future acts supplemental
thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding Agreement or the Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent, the
Market Agent, the Auction Agent, the Broker-Dealers and the Bond
Registrar under the Indenture.
"Bonds" means the $30,000,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Mississippi,
Inc. Project) Series 1999 authorized to be issued under the
Indenture. "Bond" means any one of such Bonds.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Mississippi, Inc., a Mississippi
corporation, and its permitted successors and assigns.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust dated as of February 1, 1988, to Bank of Montreal
Trust Company, as corporate trustee, and Mark F. McLaughlin
(successor to Z. George Klodnicki), as co-trustee, as heretofore
and hereafter amended and supplemented, including the Fourteenth
Supplemental Indenture dated as of May 1, 1999, pursuant to which
the General and Refunding Bonds will be issued.
"Company Mortgage Trustees" means the trustees under the
Company Mortgage.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds and the General and Refunding
Bonds, including, without limitation, financial, legal and
accounting fees, expenses and disbursements, rating agency fees,
the Issuer's expenses attributable to the issuance of the Bonds,
the cost of printing, engraving and reproduction services, the
costs of obtaining the Bond Insurance Policy, including the
premium and other fees and expenses charged by the Bond Insurer,
the initial fees and expenses of the Broker-Dealers and the
Auction Agent as provided in the Broker-Dealer Agreement or the
Auction Agent Agreement, respectively, and the initial or
acceptance fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means, collectively, the Company's interest in
certain pollution control facilities at the Plant, financed in
part with the proceeds of the Prior Bonds.
"General and Refunding Bonds" shall mean the series of bonds
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of May 1,
1999 between the Issuer and the Trustee securing the Bonds, and
any amendments and supplements thereto.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means Independence County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 of the Indenture;
(b) Bonds which are deemed to have been paid in accordance
with Article XV of the Indenture;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II of the Indenture;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV of the Indenture, all Bonds (or portions of Bonds)
which are tendered or deemed to have been tendered for purchase
on such date, provided that funds sufficient for such purchase
are on deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions of the Indenture, Bonds which are
held by or on behalf of the Company or any affiliates thereof
(unless all of the outstanding Bonds are then owned by said
parties) shall be disregarded for the purpose of any such
determination. Notwithstanding the foregoing, Bonds so owned
which have been pledged in good faith shall not be disregarded as
aforesaid if the pledge has established to the satisfaction of
the Bond Registrar the pledge's right so to act with respect to
such Bonds and that the pledge is not the Company or an affiliate
thereof.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 of the Indenture.
The Trustee is the original Paying Agent.
"Plant" means the electric generating plant jointly owned by
the Company and others located within the boundaries of the
County near Newark, Arkansas and known as the Independence Steam
Electric Station.
"Prior Bonds" means, collectively, the 1982 Bonds and the
1982-A Bonds referred to in the preamble hereof.
"Prior Indenture" means, collectively, the 1982 Indenture
and the 1982-A Indenture referred to in the preamble hereof.
"Prior Trustee" means The Bank of New York (successor to
Deposit Guaranty National Bank), and its successors and assigns,
referred to in the preamble hereof.
"Purchase Price" for any Bond shall equal 100% of the
principal amount of such Bond plus accrued interest, if any, plus
in the case of a Bond converted from a Multiannual Rate Period on
a date when such Bond is also subject to optional redemption at a
premium, an amount equal to the premium that would be payable on
such Bond if redeemed on such date.
"Refunding Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Refunding Date" means July 1, 1999, or such later date as
may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of delivery of the Bonds to the Underwriters.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Release Date" means the date, if any, on which the General
and Refunding Bonds are surrendered by the Trustee pursuant to
Section 4.3(g) hereof.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means Chase Bank of Texas, National Association,
as trustee under the Indenture, and its successors as trustee.
SECTION 1.2. Use of Words and Phrases. The words
"herein", "hereby", "hereunder", "hereto", "hereof",
"hereinabove", "hereinafter", and other equivalent words and
phrases refer to this Refunding Agreement and not solely to the
particular portion thereof in which any such word is used. The
definitions set forth in Section 1.1 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
SECTION 1.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the ordinance of the
governing authority of the Issuer relating to the Bonds, and that
the interest on the Bonds be excluded from the gross income of
the recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Arkansas, duly existing pursuant to the constitution and
laws of such State and is authorized and empowered by the
provisions of the Act and other constitutional and statutory
authority supplemental thereto, to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, Purchase Price and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding Agreement or the Indenture, results or will result
in the violation of any governmental order applicable to the
Issuer, or conflicts or will conflict with or results or
will result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which the
Issuer is now a party or by which it is bound, or
constitutes or will constitute a default under any of the
foregoing.
SECTION 2.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Mississippi,
is in good standing and duly qualified to do business in the
State of Arkansas, is not in violation of any provision of
its Restated Articles of Incorporation or its Bylaws, has
power to enter into this Refunding Agreement and to perform
and observe the agreements and covenants on its part
contained herein, including, without limitation, the power
to issue the General and Refunding as contemplated herein
and in the Company Mortgage, and has duly authorized the
execution and delivery of this Refunding Agreement by proper
corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement,
including, without limitation, the issuance and delivery of
the General and Refunding, conflicts with or results in a
breach of the terms, conditions or provisions of any
restriction or any agreement or instrument to which the
Company is now a party or by which the Company is bound, or
constitutes a default under any of the foregoing, or results
in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of
the Company except any interests created therein under the
Indenture or under the Company Mortgage.
(c) This Refunding Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, (1) would
materially adversely affect the consummation of the
transactions contemplated by this Refunding Agreement, (2)
would adversely affect the validity of this Refunding
Agreement or (3) could have a material adverse effect upon
the financial condition, assets, properties or operations of
the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding Agreement
which require said approval, and no other 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.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $30,000,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund in accordance with the Indenture.
SECTION 3.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund shall be invested,
reinvested or applied by the Trustee in accordance with and
subject to the conditions of Article VII of the Indenture. The
Company and the Issuer shall make no use of the proceeds of the
Bonds, or any funds which may be deemed to be proceeds of the
Bonds pursuant to Section 148 of the Code and the applicable
regulations thereunder, which would cause the Bonds to be
"arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
SECTION 3.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the respective bond funds 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 Prior Bonds in
the principal amounts set forth in Section 5.2 of the Indenture,
together with the premium, if any, and accrued interest due
thereon on the Refunding Date, to the extent that the amount
delivered by the Issuer pursuant to Section 3.1 hereof is
insufficient for such purpose.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS;
GENERAL AND REFUNDING BONDS
SECTION 4.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Refunding Agreement, deposit
all of the proceeds thereof with the Trustee for deposit into the
Refunding Fund in accordance with the Indenture for application
as provided in Article V hereof and Section 5.2 of the Indenture
to refund on the Refunding Date a like principal amount of the
Prior Bonds. The Company shall pay out of its own money and not
out of proceeds of the Bonds all reasonable Costs of Issuance
with respect to the Bonds.
SECTION 4.2. Payments. (a) The Company shall pay to the
Trustee or the Paying Agent for the account of the Issuer on each
date on which the principal of, premium, if any, Purchase Price
or interest on the Bonds comes due, whether at the maturity
thereof or upon acceleration, redemption, purchase or otherwise
in accordance with the provisions of the Indenture, an amount
equal to the sum of (i) all interest due and payable on the Bonds
on such date, (ii) the principal amount of Bonds, if any, due and
payable on such date, (iii) amounts, if any, required to effect
the redemption of Bonds upon unconditional call thereof on such
date pursuant to the Indenture, together with accrued interest
and any applicable redemption premium, (iv) amounts necessary to
pay the Purchase Price of the Bonds which is due and payable on
such date, and (v) all amounts due on such date to the Trustee or
the Issuer under this Refunding Agreement, the Indenture or any
other agreements entered into in connection with the issuance of
the Bonds and any other Administration Expenses. The Company
directs the Trustee and the Paying Agent to apply such amounts to
the purpose for which they are paid. The payments required under
this Section 4.2(a)(i), (ii), (iii) and (iv) shall be paid by
check, draft, wire transfer or other means acceptable to the
Trustee directly to the Trustee or the Paying Agent in funds
immediately available to the Trustee or the Paying Agent on the
payment date, and shall be immediately deposited in accordance
with the provisions of the Indenture. In any event, the Company
agrees to make payments to the Trustee or the Paying Agent at
such times and in such amounts and manner so as to enable the
Trustee or the Paying Agent to make payment of the principal of,
redemption premium, if any, Purchase Price and accrued interest
on the Bonds as the same shall become due and payable whether by
acceleration, redemption or otherwise in accordance with the
terms of the Indenture; provided, however, that the obligation of
the Company to make any payments hereunder shall be reduced by
the amount of any reduction under the Indenture of the amount of
the corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or interest on the
Bonds or by the amount derived from remarketing proceeds
available to pay the Purchase Price of the Bonds in accordance
with the provisions of Section 4.3(b) of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all of
the amounts due hereunder. The making of any prepayments by the
Company shall not require the Company to make any further
prepayments. The Issuer shall direct the Trustee to apply such
prepayments in such manner, consistent with the provisions of the
Indenture, as may be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION 4.3. Issuance, Delivery and Surrender of General
and Refunding Bonds. (a) The obligation of the Company set
forth in Section 4.2 hereof to make the payments required therein
may be evidenced, in whole or in part, prior to the Release Date,
by the General and Refunding Bonds. The Company shall issue and
deliver to the Issuer General and Refunding Bonds as provided in
subsection (b) of this Section 4.3.
(b) Concurrently with the issuance and delivery by the
Issuer of the Bonds, and, prior to the Release Date, in order to
evidence the obligation of the Company under clauses (i) and (ii)
of the first sentence of Section 4.2(a) hereof to make payments
pursuant thereto, the excess of the principal amount of the
General and Refunding Bonds to be applied to the payment of
accrued interest on the Bonds, the Company shall issue and
deliver to the Issuer a series of General and Refunding Bonds (i)
maturing on the stated maturity date of the Bonds, (ii) in a
principal amount equal to 109.5% of the principal amount of the
Bonds, (iii) containing redemption provisions correlative to any
provisions of the Indenture relating to the Bonds requiring
mandatory redemption thereof, (iv) requiring payments to be made
to the Trustee for the account of the Issuer, and (v) bearing no
interest.
(c) The obligation of the Company to make any payment of
the principal of the General and Refunding Bonds, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Indenture of the amount of the
corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or premium, if any, or
interest on the Bonds, all in accordance with the provisions of
the Company Mortgage.
(d) The Issuer shall not sell, assign or transfer the
General and Refunding Bonds, except to the extent provided in
Section 4.4 hereof. In view of the pledge and assignment
referred to in said Section 4.4, the Issuer agrees that (i) in
satisfaction of the obligations of the Company set forth in
paragraph (b) of this Section 4.3 with respect to the Bonds, the
General and Refunding Bonds shall be issued and delivered to,
registered in the name of, and held by the Trustee for the
benefit of the owners and holders from time to time of the Bonds;
(ii) the Indenture shall provide that the Trustee shall not sell,
assign or transfer the General and Refunding Bonds except to a
successor trustee under the Indenture, and shall surrender
General and Refunding Bonds to the Company Mortgage Trustees in
accordance with the provisions of subsections (e) and (g) of this
Section 4.3; and (iii) the Company may take such actions as it
shall deem to be desirable to effect compliance with such
restrictions on transfer, including the placing of an appropriate
legend on each General and Refunding Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustees or
any other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
9.13 of the Indenture shall be binding upon the Company.
(e) At the time any Bonds cease to be outstanding (other
than by reason of the payment or redemption of General and
Refunding Bonds and other than by reason of the applicability of
clause (c) in the definition of "Outstanding" herein), the Issuer
shall cause the Trustee to surrender for cancellation to the
Company Mortgage Trustees General and Refunding Bonds in an
aggregate principal amount equal to 109.5% of the aggregate
principal amount of the Bonds which so cease to be outstanding.
(f) For the purpose of determining whether or not any
payment of the principal of or premium, if any, or interest on
the General and Refunding Bonds shall have been made in full, any
moneys paid by the Company in respect of the General and
Refunding Bonds which shall have been withdrawn by the Trustee
from the Bond Fund pursuant to Section 6.1 of the Indenture shall
be deemed to have been paid by the Company to the Trustee
pursuant to Section 4.5 hereof and not to have been paid by the
Company in respect of the General and Refunding Bonds.
(g) The Issuer shall cause the Trustee to surrender for
cancellation to the Company Mortgage Trustees all General and
Refunding Bonds delivered to and then held by the Trustee upon
receipt by the Trustee of:
(i) a written request signed in the name of the
Company by an Authorized Company Representative
requesting such surrender for cancellation of such
General and Refunding Bonds; and
(ii) (A) a written consent to such request signed
by the Bond Insurer, or
(B) an officer's certificate signed by an
Authorized Company Representative to the effect that:
(I) no general and refunding
mortgage bonds are outstanding under the
Company Mortgage other than (a) the General
and Refunding Bonds delivered to and held by
the Trustee pursuant to this Refunding
Agreement and the Indenture, and (b) general
and refunding mortgage bonds held by Persons
other than the Trustee under provisions which
provide for the surrender for cancellation of
such bonds in a manner corresponding in all
material respects to this Section 4.3(g); and
(II) concurrently with the delivery
of the request to the Trustee for the
surrender for cancellation of the General and
Refunding Bonds held by it, the Company is
requesting the surrender for cancellation of
all general and refunding bonds held as
described in clause (I)(b) of such
certificate.
SECTION 4.4. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii), (iii) and (iv) to be made by the Company are
pledged by the Issuer to the Trustee pursuant to the Indenture,
and that all rights and interest of the Issuer hereunder (except
for the Issuer's rights under Sections 4.5, 4.6, 4.7 and 8.5
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder), including the right to receive the
General and Refunding Bonds and the General and Refunding Bonds,
are pledged and assigned to the Trustee. The Company assents to
such pledge and assignment and agrees that the obligation of the
Company to make payments under Section 4.2(a)(i), (ii), (iii) and
(iv) shall be absolute, irrevocable and unconditional and shall
not be subject to cancellation, termination or abatement, or to
any defense other than payment or to any right of set-off,
counterclaim or recoupment arising out of any breach under this
Refunding Agreement, the Indenture or otherwise by the Issuer or
the Trustee or any other party, or out of any obligation or
liability at any time owing to the Company by the Issuer, the
Trustee or any other party, and, further, that the payments under
Section 4.2(a)(i), (ii), (iii) and (iv) and the other payments
due hereunder shall continue to be payable at the times and in
the amounts specified herein, whether or not the Facilities, or
any portion thereof, 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 Facilities shall be used or
useful, and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Facilities, or
for any other reason.
SECTION 4.5. Payment of Administration Expenses. The
Company shall pay or cause to be paid all Administration
Expenses, including those of the Issuer, the Trustee, any Paying
Agent, any Co-Paying Agent, any Authenticating Agent, the
Remarketing Agent, the Market Agent, the Auction Agent, the
Broker-Dealers and the Bond Registrar under the Indenture, such
payments to be made directly to such entities.
SECTION 4.6. Indemnification. The Company releases the
Issuer , the Trustee, the Market Agent, the Auction Agent and the
Remarketing Agent from, agrees that the Issuer shall not be
liable for, and agrees to indemnify and hold the Issuer, the
Trustee, the Market Agent, the Auction Agent and the Remarketing
Agent free and harmless from, any liability for any loss or
damage to property or any injury to or death of any person that
may be occasioned by any cause whatsoever pertaining to the
Facilities, including, without limitation, the financing or
refinancing of the Facilities and the Prior Bonds or Bonds issued
with respect thereto, except in any case as a result of the
negligence, willful misconduct or bad faith of the party to be
indemnified.
The Company will indemnify and hold the Issuer, the Trustee,
the Market Agent, the Auction Agent and the Remarketing Agent
free and harmless from any loss, claim, damage, tax, penalty,
liability (including but not limited to liability for any patent
infringement), disbursement, litigation expenses, attorneys' fees
and expenses or court costs arising out of, or in any way
relating to, the execution or performance of this Refunding
Agreement, the issuance or sale of the Prior Bonds or the Bonds,
actions taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence, willful
misconduct or bad faith of the Trustee, the Market Agent, the
Auction Agent or the Remarketing Agent, or as a result of the
gross negligence, willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer, the Trustee, the Market Agent,
the Auction Agent and the Remarketing Agent to the same extent as
such entities.
SECTION 4.7. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii), (iii) or (iv) hereof prior
to or on a parity with the charge under the Indenture thereon and
the pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii), (iii) and (iv) hereof; provided,
however, that nothing herein shall require the payment of any
such tax or charge or the making of provision for the payment
thereof, so long as the validity thereof shall be contested in
good faith by the Company by appropriate legal proceedings;
further provided, that with respect to special assessments or
other governmental charges that may lawfully be paid in
installments over a period of years, the Company shall be
obligated to pay only such installments as are required to be
paid during the term of this Refunding Agreement.
SECTION 4.8. Early Deposit of Payments. If an early
deposit of payments is required pursuant to Section 3.5 of the
Indenture, the Company agrees to make the corresponding payment
under Section 4.2 hereof at such time as to permit compliance
with such Section 3.5.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds on the date of issuance thereof to the Prior Trustee
for disbursement and investment in accordance with the Prior
Indenture in order to redeem, together with moneys of the Company
deposited therein, the Prior Bonds on the Refunding Date in the
principal amounts set forth in Section 5.2 of the Indenture.
SECTION 5.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture to effect the redemption of
the Prior Bonds in the principal amounts set forth in Section 5.2
of the Indenture on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, however, that the
Company may, without violating the agreements contained in this
Section 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
the District of Columbia or under the laws of the United States
of America) or permit one or more such domestic 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 that (i)
both immediately prior to such consolidation, merger, sale or
transfer and after giving effect thereto, no Event of Default (or
event which, with the giving of notice or the passage of time, or
both, would become an Event of Default) shall have occurred and
be continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein and on
the General and Refunding Bonds.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION 6.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding Agreement
and the Indenture, and in certain events, amounts obtained
through the exercise of certain remedies provided in the
Indenture). The Bonds shall never be general obligations of the
Issuer nor constitute an indebtedness or pledge of the general
credit of the Issuer within the meaning of any constitutional or
statutory provision or limitation of indebtedness, and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
SECTION 6.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain, and shall refrain from taking any action that impairs,
the exclusion of the interest on the Bonds from gross income for
federal income tax purposes under federal tax law existing on the
date of delivery of the Bonds. In furtherance of the foregoing,
the Company also agrees on behalf of the Issuer to comply with
all rebate requirements and procedures as may become applicable
to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of air or water pollution control facilities or
sewerage or solid waste disposal facilities within the
meaning of Section 103(b)(4) of the Internal Revenue Code of
1954, as amended. All of the proceeds of the Prior Bonds
have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the reasonably expected economic life of
the Facilities financed with the proceeds of the Prior
Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds being
refunded from the proceeds of the Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box, or
health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(g) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and the information statement
pursuant to Section 149(e) of the Code, is accurate and
complete as of the date of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code.
SECTION 6.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such shall be paid
directly to the Company.
SECTION 6.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION 6.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
Notwithstanding the foregoing, the Company shall have the right
to contest the legality of any such law, ordinance, order, rule,
regulation or requirement as applied to the Facilities provided
that in the opinion of counsel to the Company such contest shall
not in any way materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION 6.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Refunding Agreement, as to the condition of the Facilities or as
to the suitability thereof for the Company's purposes or needs or
as to compliance of the Facilities with applicable laws and
regulations or the ability of the Company to discharge the Bonds.
The Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Refunding
Agreement.
SECTION 6.8. Limitation on Secured Debt. (a) On and
after the Release Date and so long as any Bonds shall remain
Outstanding, the Company shall not create, issue, incur or assume
any Secured Debt other than Permitted Secured Debt without the
consent of the Bond Insurer or the owners of a majority in
principal amount of the Outstanding Bonds if the Bond Insurer is
in default as provided in Section 10.16 hereof.
(b) The provisions of clause (a) above shall not prohibit
the creation, issuance, incurrence or assumption of any Secured
Debt if either
(i) the Company shall make effective provision whereby
all Bonds then Outstanding shall be secured equally and
ratably with such Secured Debt; or
(ii) the Company shall deliver to the Trustee bonds,
notes or other evidences of indebtedness secured by the Lien
which secures such Secured Debt (hereinafter called "Secured
Obligations") (A) in an aggregate principal amount equal to
the aggregate principal amount of the Bonds then
Outstanding, (B) maturing (or being subject to mandatory
redemption) on such dates and in such principal amounts
that, at the Maturity Date, there shall mature (or be
redeemed) Secured Obligations equal in principal amount to
the Bonds and (C) containing, in addition to any mandatory
redemption provisions applicable to all Secured Obligations
outstanding under such Lien and any mandatory redemption
provisions contained therein pursuant to clause (B) above,
mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant
to a sinking fund or otherwise) of the Bonds or for the
redemption thereof at the option of the Owner, as well as a
provision for mandatory redemption upon an acceleration of
the maturity of all Outstanding Bonds following an Event of
Default (such mandatory redemption to be rescinded upon the
rescission of such acceleration); it being expressly
understood that such Secured Obligations (x) may, but need
not, bear interest, (y) may, but need not, contain
provisions for the redemption thereof at the option of the
issuer, any such redemption to be made at a redemption price
or prices not less than the principal amount thereof and (z)
shall be held by the Trustee for the benefit of the Owners
of all Bonds from time to time Outstanding subject to such
terms and conditions relating to surrender to the Company,
transfer restrictions, voting, application of payments of
principal and interest and other matters as shall be set
forth in an indenture supplemental hereto specifically
providing for the delivery to the Trustee of such Secured
Obligations.
(c) If the Company shall elect either of the alternatives
described in clause (b) above, the Company shall deliver to the
Trustee and to the Bond Insurer:
(i) an indenture supplemental to the Indenture (A)
together with appropriate inter-creditor arrangements,
whereby all Bonds then Outstanding shall be secured by the
Lien referred to in clause (b) above equally and ratably
with all other indebtedness secured by such Lien or (B)
providing for the delivery to the Trustee of Secured
Obligations;
(ii) an officer's certificate signed by an Authorized
Company Representative (A) stating that, to the knowledge of
the signer, (1) no Event of Default has occurred and is
continuing and (2) no event has occurred and is continuing
which entitles the secured party under such Lien to
accelerate the maturity of the indebtedness outstanding
thereunder and (B) stating the aggregate principal amount of
indebtedness issuable, and then proposed to be issued, under
and secured by such Lien;
(iii) an opinion of counsel (A) if the Bonds then
Outstanding are to be secured by such Lien, to the effect
that all such Bonds then Outstanding are entitled to the
benefit of such Lien equally and ratably with all other
indebtedness outstanding under such Lien or (B) if Secured
Obligations are to be delivered to the Trustee, to the
effect that such Secured Obligations have been duly issued
under such Lien and constitute valid obligations, entitled
to the benefit of such Lien equally and ratably with all
other indebtedness then outstanding under such Lien.
(d) For all purposes of this Refunding Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
"Consolidated Tangible Net Worth" means (i) common
stock equity minus (ii) the aggregate amount of all
intangible assets (other than intangible assets the cost of
which is expected by the Company to be recovered through
revenues from the sale of electrical capacity and/or energy
or the provision of related services), all as determined in
accordance with generally accepted accounting principles as
applied to entities conducting the same businesses as the
Company.
"Debt", with respect to any Person, means (i)
indebtedness of such Person for borrowed money evidenced by
a bond, debenture, note or other written instrument or
agreement by which such Person is obligated to repay such
borrowed money and (ii) any guarantee by such Person of any
such indebtedness of another Person. "Debt" does not
include, among other things, (x) indebtedness of such Person
under any installment sale or conditional sale agreement or
any other agreement relating to indebtedness for the
deferred purchase price of property or services, (y)
obligations of such Person under any lease agreement
(including any lease intended as security), whether or not
such obligations are required to be capitalized on the
balance sheet of such Person under generally accepted
accounting principles, or (z) liabilities secured by any
Lien on any property owned by such Person if and to the
extent that such Person has not assumed or otherwise become
liable for the payment thereof.
"Excepted Property" means:
(i) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests
in general or limited partnerships, bonds, notes, other
evidences of indebtedness and other securities, of
whatsoever kind and nature, not hereafter paid or delivered
to, deposited with or held by the Trustee hereunder or
required so to be;
(ii) all contracts, leases, operating agreements and
other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute
securities, in which case they are separately excepted under
clause (i) above); all revenues, income and earnings, all
accounts, accounts receivable and unbilled revenues, and all
rents, tolls, issues, products and profits, claims, credits,
demands and judgments; all governmental and other licenses,
permits, franchises, consents and allowances; and all
patents, patent licenses and other patent rights, patent
applications, trade names, trademarks, copyrights, claims,
credits, choses in action and other intangible property and
general intangibles including, but not limited to, computer
software;
(iii) all automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable
equipment; all rolling stock, rail cars and other railroad
equipment; all vessels, boats, barges and other marine
equipment; all airplanes, helicopters, aircraft engines and
other flight equipment; all parts, accessories and supplies
used in connection with any of the foregoing; and all
personal property of such character that the perfection of a
security interest therein or other Lien thereon is not
governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;
(iv) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the
ordinary course of business; all materials, supplies,
inventory and other items of personal property which are
consumable (otherwise than by ordinary wear and tear) in
their use in the operation of any property of the Company;
all fuel, including nuclear fuel, whether or not any such
fuel is in a form consumable in the operation of any
property of the Company, including separate components of
any fuel in the forms in which such components exist at any
time before, during or after the period of the use thereof
as fuel; all hand and other portable tools and equipment;
all furniture and furnishings; and computers and data
processing, data storage, data transmission,
telecommunications and other facilities, equipment and
apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not
necessary for the operation or maintenance of the
facilities, machinery, equipment or fixtures of the Company
for (A) the generation, transmission or distribution of
electric energy, (B) the transmission, storage or
distribution of gas or (C) the appropriation, storage,
transmission or distribution of water;
(v) all coal, ore, gas, oil and other minerals and all
timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have
been mined or extracted or otherwise separated from the
land; and all electric energy, gas (natural or artificial),
steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the
Company;
(vi) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment
or apparatus, in any case used or to be used primarily for
the production or gathering of natural gas; and
(vii) all property which is the subject of a lease
agreement designating the Company as lessee and all right,
title and interest of the Company in and to such property
and in, to and under such lease agreement, whether or not
such lease agreement is intended as security.
"Lien" means any mortgage, deed of trust, pledge, lien,
security interest, conditional sale or other title retention
agreement or any lease in the nature thereof.
"Permitted Secured Debt" means, as of any particular
time, any of the following:
(i) Secured Debt secured by Purchase Money Liens or
any other Liens existing or placed upon property at the time
of, or within one hundred eighty (180) days after, the
acquisition thereof by the Company, and any refundings,
refinancings and/or replacements of any such Secured Debt;
provided, however, that no such Purchase Money Lien or other
Lien shall extend to or cover any property of the Company
other than (A) the property so acquired and improvements,
extensions and additions to such property and renewals,
replacements and substitutions of or for such property or
any part or parts thereof and (B) with respect to Purchase
Money Liens, other property subsequently acquired by the
Company;
(ii) Secured Debt relating to governmental obligations
the interest on which is not included in gross income for
purposes of federal income taxation pursuant to Section 103
of the Internal Revenue Code of 1986, as amended (or any
successor provision of law), for the purpose of financing or
refinancing, in whole or in part, costs of acquisition or
construction of property to be used by the Company, to the
extent that the Lien which secures such Secured Debt is
required either by applicable law or by the issuer of such
governmental obligations or is otherwise necessary in order
to establish or maintain such exclusion from gross income;
and any refundings, refinancings and/or replacements of any
such Secured Debt by or with similar Secured Debt;
(iii) Secured Debt (A) which is related to the
construction or acquisition of property not previously owned
by the Company or (B) which is related to the financing of a
project involving the development or expansion of property
of the Company and (C) in either case, the obligee in
respect of which has no recourse to the Company or any
property of the Company other than the property constructed
or acquired with the proceeds of such transaction or the
project financed with the proceeds of such transaction (or
the proceeds of such property or such project); and any
refundings, refinancings and/or replacements of any such
Secured Debt by or with Secured Debt described in clause (C)
above;
(iv) Secured Debt permitted under clause (b) above; and
(v) in addition to the Permitted Secured Debt
described in clauses (i) through (iv) above, Secured Debt
not otherwise permitted in this Section 6.8 in an aggregate
principal amount not exceeding 10% of the Consolidated
Tangible Net Worth of the Company, as shown on the latest
annual or quarterly consolidated balance sheet of the
Company prepared by the Company, dated prior to the date of
the creation, issuance, incurrence or assumption of such
Secured Debt.
"Purchase Money Lien" means, with respect to any
property being acquired by the Company, a Lien on such
property which
(i) is taken or retained by the transferor of such
property to secure all or part of the purchase price
thereof;
(ii) is granted to one or more Persons other than the
transferor which, by making advances or incurring an
obligation, give value to enable the grantor of such Lien to
acquire rights in or the use of such property;
(iii) is held by a trustee or agent for the benefit
of one or more Persons described in clause (i) or
(ii) above, provided that such Lien may be held, in
addition, for the benefit of one or more other Persons which
shall have theretofore given, or may thereafter give, value
to or for the benefit or account of the grantor of such Lien
for one or more other purposes; or
(iv) otherwise constitutes a purchase money mortgage or
a purchase money security interest under applicable law;
and, without limiting the generality of the foregoing, for
purposes of this Indenture, the term Purchase Money Lien
shall be deemed to include any Lien described above whether
or not such Lien (A) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien
on such property, (B) shall permit the subjection to such
Lien of additional property and the issuance or other
incurrence of additional indebtedness on the basis thereof
and/or (C) shall have been granted prior to the acquisition
of such property, shall attach to or otherwise cover
property other than the property being acquired and/or shall
secure obligations issued prior and/or subsequent to the
issuance of the obligations delivered in connection with
such acquisition.
"Secured Debt", with respect to any Person, means Debt
created, issued, incurred or assumed by such Person which is
secured by a Lien upon any property (other than Excepted
Property) of the Company, real, personal or mixed, of
whatever kind or nature and wherever located, whether owned
at the date of the initial authentication and delivery of
the Bonds hereunder, or thereafter acquired.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Company. The Company's interest in
this Refunding Agreement may be assigned in whole or in part, and
the Facilities may be leased or sold as a whole or in part
(whether a specific element or unit or an undivided interest), by
the Company, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 6.1
hereof) shall relieve the Company from primary liability for its
obligations (including its obligations on the General and
Refunding Bonds) under Section 4.2 and 4.3 hereof to pay the
payments required thereunder, or for any other of its obligations
hereunder, other than those obligations relating to the
operation, maintenance and insurance of the Facilities, which
obligations (to the extent of the interest assigned, leased or
sold and to the extent assumed by the assignee, lessee or
purchaser) shall be deemed to be satisfied and discharged.
Further, upon any such lease or sale the Company shall comply
with the requirements of the Code and the regulations promulgated
thereunder (including, without limitation, the taking of remedial
action with respect to the Bonds) as the same may then be
applicable.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
SECTION 7.2. Limitation. This Refunding Agreement shall
not be assigned nor shall the Facilities be leased or sold, in
whole or in part, except as provided in this Article VII,
Sections 4.4 or 6.1 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default. Each of the following
events shall constitute and is referred to in this Refunding
Agreement as an "Event of Default":
(a) prior to the Release Date, a "Default" as such
term is defined in Section 12.01 of the Company Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a), (b) or (e) of Section 10.1 of the
Indenture;
(c) a failure by the Company to pay when due any other
amount required to be paid under this Refunding Agreement or
to observe and perform any covenant, condition or agreement
on its part to be observed or performed, which failure shall
continue 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 Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(d) on and after the Release Date, the expiration of a
period of ninety (90) days following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a petition
seeking reorganization or arrangement of the Company
under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(e) on and after the Release Date, the filing by the
Company of a voluntary petition in bankruptcy or the making
of an assignment for the benefit of creditors; the
consenting by the Company to the appointment of a receiver
or trustee of all or any part of its property; the filing by
the Company of a petition or answer seeking reorganization
or arrangement under the federal bankruptcy laws, or any
other applicable law or statute of the United States of
America, or of any state thereof; or the filing by the
Company of a petition to take advantage of any insolvency
act.
SECTION 8.2. Force Majeure. The provisions of Section 8.1
hereof are subject to the following limitations: If by reason of
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or other acts of any kind of the
government of the United States or of the State of Arkansas, or
any other sovereign entity or body politic, or any department,
agency, political subdivision, court or official of any of them,
or any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; volcanoes; fires;
hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(i), (ii), (iii) or (iv) hereof and its
obligations under Sections 4.7, 6.1, 7.1 and 9.1 hereof, the
Company shall not be deemed in default by reason of not carrying
out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The
Company agrees, however, to use its best efforts to remedy with
all reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is, in the judgment of
the Company, unfavorable to the Company.
SECTION 8.3. Remedies on Default. (a) Upon the occurrence
and continuance of any Event of Default described in clause (a)
of Section 8.1 hereof, the Trustee, as the holder of the General
and Refunding Bonds, shall, subject to the provisions of the
Indenture, have the rights provided in the Company Mortgage.
(b) Upon the occurrence and continuance of any Event of
Default described in Section 8.1 hereof, and further upon the
condition that, in accordance with the terms of the Indenture,
the Bonds shall have become immediately due and payable pursuant
to any provision of the Indenture, the payments required to be
paid pursuant to Section 4.2 hereof shall, without further
action, become and be immediately due and payable.
(c) Upon the occurrence and continuance of any Event of
Default, the Issuer, with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Refunding
Agreement.
(d) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(e) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case, the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.4. No Remedy Exclusive. No remedy conferred
upon or reserved to the Issuer by this Refunding Agreement 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
Refunding 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 any event of 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. In order to entitle the
Issuer or the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required, or as may
be required by applicable law.
SECTION 8.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding Agreement
or on the General and Refunding Bonds, or for the enforcement of
performance or observance of any obligation or agreement on the
part of the Company contained in this Refunding Agreement, the
Company agrees that it will on demand therefor reimburse the
reasonable fees of such attorneys and such other reasonable
expenses so incurred.
SECTION 8.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be 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 Refunding 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. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences, and
any waiver of any "Default" under the Company Mortgage and a
recission and annulment of its consequences shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, whether such notice shall be unconditional,
and the applicable redemption provision of the Indenture. Unless
otherwise stated therein or otherwise required by the Indenture,
such notice shall be revocable by the Company at any time prior
to the time at which the Trustee shall have given notice to the
holders of the Bonds to be redeemed. The Company shall furnish,
as a prepayment of the sums due hereunder, any moneys or
Government Securities required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection
with a defeasance of Bonds pursuant to Article XV of the
Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the Issue Date
until the right, title and interest of the Trustee in and to the
Trust Estate (as defined in the Indenture) shall have ceased,
terminated and become void in accordance with Article XV of the
Indenture and until all payments required under this Refunding
Agreement shall have been made.
SECTION 10.2. Notices. Except as otherwise provided in
this Refunding Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when given in accordance with the provisions of Section
16.6 of the Indenture.
SECTION 10.3. Successors. This Refunding Agreement shall
inure to the benefit of the Issuer, the governing authority of
the Issuer, its members, officers or employees, the Company, the
Trustee and the holders from time to time of the Bonds, and shall
be binding upon the Issuer, the Company and their respective
successors and assigns.
SECTION 10.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION 10.5. Counterparts. This Refunding Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same
Agreement.
SECTION 10.6. Severability. If any clause, provision or
section of this Refunding Agreement shall be held illegal or
invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions
or sections hereof and this Refunding Agreement shall be
construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Refunding Agreement
shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of
the Issuer or the Company, as the case may be, to the full extent
permitted by law.
SECTION 10.7. Applicable Law. The laws of the State of
Arkansas shall govern the construction of this Refunding
Agreement.
SECTION 10.8. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall not be a Business
Day, such payment may be made or act performed or right exercised
on the next succeeding Business Day, with the same force and
effect as if done on the nominal date provided in this Refunding
Agreement, and no interest on the amount so payable shall accrue
for the period after such nominal date.
SECTION 10.9. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding Agreement as herein provided, after payment in
full of the Bonds (or provision therefor) in accordance with the
Indenture, all other costs and expenses to be paid by the Company
hereunder, all Administration Expenses, and all amounts owing the
Issuer and the Trustee under this Refunding Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION 10.10. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding Agreement, acknowledges
and agrees that it has participated in the drafting of the
Indenture and agrees that it has approved the Indenture and
agrees that it is bound by and shall have the rights set forth by
the terms and conditions thereof and covenants and agrees to
perform all obligations required of the Company pursuant to the
terms of the Indenture.
SECTION 10.11. Binding Effect. This Refunding Agreement
shall be binding upon the parties hereto and upon their
respective successors and assigns, and the words "Issuer" and
"Company" shall include the parties hereto and their respective
successors and assigns and include any gender, singular and
plural, and individuals, partnerships or corporations.
SECTION 10.12. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION 10.13. No Personal Liability. No covenant or
agreement contained in this Refunding Agreement shall be deemed
to be the covenant or agreement of any official, officer, agent,
or employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION 10.14. Parties in Interest. This Refunding
Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company, the Trustee and the Paying Agent and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Refunding Agreement; provided, however, that
any monetary obligation of the Issuer created by or arising out
of this Refunding Agreement shall be payable solely out of the
revenues derived from this Refunding Agreement or the sale of the
Bonds or income earned on invested funds as provided in the
Indenture and shall not constitute, and no breach of this
Refunding Agreement by the Issuer shall impose, a pecuniary
liability upon the Issuer or a charge upon the Issuer's general
credit or against its taxing powers.
SECTION 10.15. Consent of the Bond Insurer. All provisions
hereof regarding consents, approvals, directions, appointments or
requests by the Bond Insurer shall be deemed not to require or
permit such consents, approvals, directions, appointments or
requests by the Bond Insurer and shall be read as if the Bond
Insurance Policy was not mentioned therein during any time in
which the Bond Insurer is in default in its obligations to make
payments under the Bond Insurance Policy; provided, however, that
this Section shall not affect the rights of the Bond Insurer to
collect any amounts owed to it.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
INDEPENDENCE COUNTY, ARKANSAS
By: ______________________________
County Judge
ATTEST:
By: _______________________________ [SEAL]
County Clerk
ENTERGY MISSISSIPPI, INC.
By: _____________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
Exhibit F-2(d)
[Letterhead of Thelen Reid & Priest LLP]
June 7, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are familiar with (A) the Application-Declaration on Form
U-1 (File No. 70-8719), as amended, filed with the Securities and
Exchange Commission under the Public Utility Holding Company Act,
as amended, by Entergy Mississippi, Inc. (the "Company")
contemplating, among other things, the entering into arrangements
for the issuance and sale of one or more series of tax-exempt
bonds (the "Tax-Exempt Bonds") and in order to provide additional
security for the Tax-Exempt Bonds, the issuance and delivery of
one or more new series of the Company's General and Refunding
Mortgage Bonds (the "Collateral Bonds"), (B) the Securities and
Exchange Commission's Order, dated January 30, 1996, granting and
permitting to become effective the Application-Declaration, as
amended, with respect to the foregoing matters, and (C) the
subsequent consummation, on May 28, 1999, of the entry by the
Company into a Refunding Agreement with Independence County,
Arkansas (the "Issuer"), and the related refinancing of
outstanding pollution control revenue bonds through the issuance
by the Issuer of a series of its Tax-Exempt Bonds and the related
issuance by the Company of a new series of Collateral 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 Order of the 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 Collateral Bonds are valid and binding
obligations of the Company in accordance with their
terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyence,
reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights
and by general equitable principles (whether considered
in a proceeding in equity or at law).
(5) 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, for purposes of this
opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the United
States of America. In giving this opinion, we have relied, as to
all matters governed by the laws any other state, upon an opinion
of even date herewith of Ann G. Roy, Senior Counsel -- Corporate
and Securities of Entergy Services, Inc., 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/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit F-3(c)
June 7, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
With respect to (1) the Application-Declaration
("Application-Declaration") on Form U-1, as amended (File No.
70-8719), filed by Entergy Mississippi, Inc. (the "Company")
with the Securities and Exchange Commission ("Commission")
under the Public Utility Holding Company Act of 1935, as
amended, contemplating, among other things, the entering into
arrangements for the issuance and sale of one or more new
series of tax-exempt bonds (the "Tax-Exempt Bonds") and in
order to provide additional security for the Tax-Exempt Bonds,
the issuance and delivery of one or more new series of the
Company's General and Refunding Mortgage Bonds (the
"Collateral Bonds"); (2) the Commission's order dated January
30, 1996 ("Order") permitting the Application-Declaration, as
amended, to become effective with respect to the issuance and
sale of said Tax-Exempt Bonds and Collateral Bonds; and (3)
the subsequent consummation on May 28, 1999 of the entry by
the Company into a Refunding Agreement with Independence
County, Arkansas (the "Issuer") and the related issuance and
sale by the Issuer of a series of Tax-Exempt Bonds and the
related issuance by the Company of a new series of Collateral
Bonds (the "Transactions"), I advise you that in my opinion:
(a) the Company is a corporation duly
organized and validly existing under the laws of the
State of Mississippi;
(b) the Transactions have been consummated in
accordance with the Application-Declaration, as
amended, and the Order;
(c) all state laws that relate or are applicable
to the Company's Participation in the Transactions
(other than so-called "blue sky" or similar laws, upon
which I do not pass herein) have been complied with;
(d) the Collateral Bonds are valid and binding
obligations of the Company in accordance with their
terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting
enforcement of mortgagees' and other creditors' rights
and by general equitable principles (whether considered
in a proceeding in equity or at law); and
(e) the consummation of the Transactions has not
violated the legal rights of the holders of any
securities issued by the Company.
I am a member of the Mississippi State Bar and for
purposes of this opinion do not hold myself out as an expert on
the laws of any state other than Mississippi and of the United
States.
My consent is hereby given to the use of this opinion
as an exhibit to the Certificate pursuant to Rule 24.
Very truly yours,
/s/ Ann G. Roy
Ann G. Roy
Senior Counsel -
Corporate and Securities
