UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
- -----------------------------------------------------X
:
In the Matter of :
:
Arkansas Power & Light Company : CERTIFICATE
: PURSUANT TO
File No. 70-8405 : RULE 24
:
(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 proposed by Arkansas Power & Light Company (Company)
as described in the Application-Declaration on Form U-1, as
amended, in the above File (Application-Declaration), have been
carried out in accordance with the terms and conditions of, and
for the purposes represented by, the Application-Declaration and
pursuant to the order of the Securities and Exchange Commission
dated June 15, 1994 with respect thereto (Release No. 35-26067).
Attached hereto and incorporated by reference are:
Exhibit B-1(a) Conformed copy of Loan Agreement between
the Company and Jefferson County,
Arkansas (Jefferson County).
Exhibit B-1(b) Conformed copy of Loan Agreement between
the Company and Pope County, Arkansas
(Pope County).
Exhibit B-3(a) Conformed copy of Trust Indenture
between Jefferson County and the
Trustee.
Exhibit B-3(b) Conformed copy of Trust Indenture
between Pope County and the Trustee.
Exhibit F-1(a) Post-effective opinion of Reid & Priest.
Exhibit F-2(a) Post-effective opinion of Friday,
Eldredge & Clark.
IN WITNESS WHEREOF, the Company has caused this certificate
to be executed this 30th day of June, 1994.
ARKANSAS POWER & LIGHT COMPANY
By /s/ Glenn E. Harder
Glenn E. Harder
Vice President-Financial
Strategies and Treasurer
Exhibit B-1(a)
_________________________________________________________________
JEFFERSON COUNTY, ARKANSAS
and
ARKANSAS POWER & LIGHT COMPANY
______________
LOAN AGREEMENT
______________
Dated as of June 15, 1994
_________________________________________________________________
$9,200,000 Jefferson County, Arkansas Pollution Control Revenue
Refunding Bonds, Series 1994 (Arkansas Power & Light Company
Project)
<PAGE>
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of June 15, 1994, by and
between JEFFERSON COUNTY, ARKANSAS, a political subdivision under
the Constitution and laws of the State of Arkansas (hereinafter
referred to as the "County"), and ARKANSAS POWER & LIGHT COMPANY,
a corporation organized and existing under and by virtue of the
laws of the State of Arkansas (hereinafter referred to as the
"Company").
W I T N E S S E T H:
WHEREAS, the County is authorized and empowered under
the laws of the State of Arkansas, including particularly Title
14, Chapter 267 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds 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, certain pollution control facilities
(hereinafter referred to as the "Facilities") have been acquired,
constructed and equipped at Units 1 and 2 of the electric
generating plant jointly owned by the Company and others located
within the boundaries of the County near Redfield, Arkansas and
known as the White Bluff Steam Electric Station (hereinafter
referred to as the "Plant"); and
WHEREAS, pursuant to and in accordance with the
provisions of the Act, the County has heretofore issued and
delivered its Pollution Control Revenue Bonds, Series 1978
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $9,200,000 (the "Prior Bonds"), for the
purpose of financing and refinancing the cost of acquiring,
constructing and equipping all or part of the Company's interest
in the Facilities, and paying the expenses of authorizing and
issuing the Prior Bonds; and
WHEREAS, the County proposes to issue $9,200,000
aggregate principal amount of its revenue bonds under the Act
(the "Series 1994 Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, in connection with the issuance of the Series
1994 Bonds the proceeds of the Series 1994 Bonds will be loaned
by the County to the Company upon the terms and conditions set
forth herein; and
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants herein made, and subject to the
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to the words
and terms elsewhere defined in this Agreement or in the
Indenture, the following words and terms as used in this
Agreement shall have the following meanings unless the context or
use indicates another or different meaning:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- Bonds in addition to the Series
1994 Bonds, which are issued under the provisions of Section 211
of the Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to this
Agreement, the Indenture and any transaction or event
contemplated by this Agreement or the Indenture including the
compensation and reimbursement of expenses and advances payable
to the Trustee, any paying agent, any co-paying agent, and the
registrar under the Indenture.
"Agreement" -- This Loan Agreement and any amendments
and supplements hereto.
"Authorized Company Representative" -- The person or
persons at the time designated to act on behalf of the Company,
such designation in each case to be evidenced by a certificate
furnished to the County and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Senior Vice President, any Vice
President, or the Treasurer.
"Bonds" -- The Series 1994 Bonds and all Additional
Bonds issued by the County pursuant to the Indenture.
"Bond Counsel" -- Any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the County and the Trustee.
"Bond Fund" -- The fund by that name created and
established in Section 501 of the Indenture.
"Clearing Fund" -- The fund by that name created and
established in Section 601 of the Indenture.
"Code" -- The Internal Revenue Code of 1954, as
heretofore amended (the "1954 Code"), and the Internal Revenue
Code of 1986, as heretofore or hereafter amended (the "1986
Code"), as applicable.
"Company" -- Arkansas Power & Light Company, a
corporation organized and operating under the laws of the State
of Arkansas, and its permitted successors and assigns.
"Company Mortgage" -- The Mortgage and Deed of Trust,
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (Morgan Guaranty Trust Company of New
York, successor) and Henry A. Theis (John W. Flaherty,
successor), and, as to property, real or personal, situated or
being in Missouri, Marvin A. Mueller (The Boatmen's National Bank
of St. Louis, successor), as trustees, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustees" -- The trustees under the
Company Mortgage.
"County" -- Jefferson County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Event of Default" -- Any event of default specified in
Section 8.01 hereof.
"Facilities" -- The pollution control facilities at the
Plant which were financed and refinanced, in whole or in part,
with the proceeds of the Prior Bonds, which facilities are
generally described in Exhibit A hereto.
"First Mortgage Bonds" -- The bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.03 hereof.
"Indenture" -- The Trust Indenture dated as of June 15,
1994, between the County and the Trustee, securing the Bonds, and
any amendments and supplements thereto.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date for
cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to the Indenture.
"Plant" -- The electric generating plant jointly owned
by the Company and others located within the boundaries of the
Countynear Redfield, Arkansas and known as the White Bluff Steam
Electric Station.
"Plant Agreements" -- All of the contracts relating to
the ownership, construction and operation of the Plant, as from
time to time amended or supplemented.
"Pope County Bonds" -- The Pope County, Arkansas
Pollution Control Revenue Bonds, Series 1994 (Arkansas Power &
Light Company Project), in the aggregate principal amount of
$19,500,000, being issued and delivered simultaneously with the
issuance and delivery of the Series 1994 Bonds.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series 1978 (Arkansas Power & Light Company Project), in
the aggregate principal amount of $9,200,000.
"Series 1994 Bonds" -- The initial issue of Bonds under
and secured by the Indenture in the aggregate principal amount of
$9,200,000.
"Trustee" -- The banking corporation or association
designated as Trustee in the Indenture, and its successor or
successors as such Trustee. The original Trustee is Simmons
First National Bank, Pine Bluff, Arkansas.
Section 1.02. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Agreement
and not solely to the particular portion thereof in which any
such word is used. The definitions set forth in Section 1.01
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.
ARTICLE II
REPRESENTATIONS
Section 2.01. Representations and Warranties of the
County. The County makes the following representations and
warranties as the basis for the undertakings on the part of the
Company herein contained:
(a) The County is a political subdivision duly
existing under the Constitution and laws of the State of
Arkansas.
(b) The County has the power to enter into the trans
actions contemplated by this Agreement and to carry out its
obligations hereunder. By proper action of the governing body of
the County, the County has been duly authorized to execute and
deliver this Agreement.
(c) The County has not, and will not, except as
otherwise required by mandatory provisions of law, assign its
interest in this Agreement other than to secure the Bonds.
(d) The Facilities and their operation promote the
securing and developing of industry and the health, safety and
physical and economic welfare of the County and its inhabitants,
and thereby further the public purposes of the Act.
Section 2.02. Representations and Warranties of the
Company. The Company makes the following representations and
warranties as the basis for the undertakings on the part of the
County herein contained:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Arkansas, is not
in violation of any provision of its Articles of Incorporation,
or its Bylaws, has power to enter into this Agreement and to
perform and observe the agreements and covenants on its part
contained herein, including without limitation the power to issue
the First Mortgage Bonds as contemplated herein and in the
Company Mortgage, and has duly authorized the execution and
delivery of this Agreement by proper corporate action.
(b) The Facilities constitute a pollution control
project of the type authorized and permitted by the Act.
(c) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, including, without limitation, the
issuance and delivery of the First Mortgage Bonds, conflicts with
or results in a breach of the terms, conditions or provisions of
any restriction or any agreement or instrument to which the
Companyis now a party or by which the Company is bound, or con
stitutes 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 herein and under the Company
Mortgage.
(d) The Securities and Exchange Commission, the
Arkansas Public Service Commission, and the Tennessee Public
Service Commission have each approved all matters relating to the
Company's participation in the transactions contemplated by this
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 or in connection with the issuance of series of
Additional Bonds.
ARTICLE III
THE FACILITIES
Section 3.01. Construction of the Facilities. The
Company, in the exercise of its rights, powers, elections and
options under the Plant Agreements, has caused the Facilities to
be constructed in order to effectuate the purposes of the Act.
Section 3.02. Maintenance of Facilities; Remodeling.
The Company shall, at its expense, exercise all of its rights,
powers, elections and options under the Plant Agreements to cause
the Facilities, and every element and unit thereof, to be main
tained, preserved and kept in good repair, working order and
condition, and from time to time to cause all needful and proper
repairs, replacements, additions, betterments and improvements to
be made thereto; provided, however, that the Company may exercise
all of such rights, powers, elections and options to cause the
discontinuance of the operation of, or reduce the capacity of,
the Facilities, or any element or unit thereof, if, in the
judgment of the Company, any such action is necessary or
desirable in the conduct of the business of the Company, or if
the Company is ordered so to do by any regulatory authority
having jurisdiction in the premises, or if the Company intends to
sell or dispose of the same and within a reasonable time shall
endeavor to effectuate such sale. The Company shall notify the
County as to the nature and extent of any material damage or loss
to the Facilities and of the discontinuance of the operation of
the Facilities, or any material element or unit thereof.
The Company may at its own expense cause the Facilities
to be remodeled or cause substitutions, modifications and
improvements to be made to the Facilities from time to time as
it, in its discretion, may deem to be desirable for its uses and
purposes, which remodeling, substitutions, modifications and
improvements shall be included under the terms of this Agreement
as part of the Facilities.
Section 3.03. Insurance. The Company shall, at its
expense, exercise all of its rights, powers, elections and
options under the Plant Agreements to cause the Facilities to be
kept insured against fire to the extent that property of similar
character is usually so insured by companies similarly situated
and operating like properties, to a reasonable amount, by
reputable insurance companies or, in lieu of or supplementing
such insurance in whole or in part, adopt some other method or
plan of protection against loss by fire at least equal in
protection to the method or plan of protection against such loss
of companies similarly situated and operating like properties.
All proceeds of such insurance, or such other method or plan,
shall be for the account of the Company.
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
Section 4.01. Issuance of the Series 1994 Bonds. The
County shall issue the Series 1994 Bonds under and in accordance
with the Indenture, subject to the provisions of any bond
purchase agreement between the County and the original purchaser
or purchasers of the Series 1994 Bonds. The Company hereby
approves the issuance of the Series 1994 Bonds and all terms and
conditions thereof.
Section 4.02. Additional Bonds. So long as the
Company shall not be in default hereunder, and at the request of
the Company, the County may authorize and issue Additional Bonds
in aggregate principal amounts specified from time to time by the
Company in order to provide funds for the purpose of refunding
the Series 1994 Bonds or any series of Additional Bonds, in whole
or in part, or any combination thereof.
The right to issue Additional Bonds set forth in this
Agreement and the Indenture shall not imply that the County and
the Company may not enter into, and the County and the Company
expressly reserve the right to enter into, to the extent
permitted by law, another agreement or agreements with respect to
the issuance by the County, under an indenture or indentures
other than the Indenture, of refunding bonds to refund all or any
principal amount of any series of Bonds, and the provisions of
this Agreement and the Indenture governing the issuance of
Additional Bonds shall not apply thereto.
Section 4.03. Disposition of Bond Proceeds. The
proceeds of the issuance and sale of the Series 1994 Bonds and
any Additional Bonds, other than accrued interest, if any, paid
by the initial purchaser or purchasers thereof, shall be
deposited into the Clearing Fund, and any such accrued interest
shall be deposited into the Bond Fund, all in accordance with the
provisions of the Indenture.
ARTICLE V
LOAN PROVISIONS; FIRST MORTGAGE BONDS;
OTHER OBLIGATIONS
Section 5.01. Loan of Bond Proceeds. Concurrently
with the sale and delivery of each series of the Bonds, the
County covenants and agrees that it will, upon the terms and
conditions in this Agreement, lend to the Company an amount equal
to the proceeds (other than accrued interest) of such series.
Pursuant to said covenant and agreement, the County will issue
the Bonds upon the terms and conditions contained in this
Agreement and the Indenture and will cause the Bond proceeds to
be applied as provided in Article IV hereof. The Bonds may be
sold by the County, with the consent of the Company, at a
discount from their principal amount. If the County does sell
Bonds at a discount, the amount of such discount shall be deemed
to have been loaned to the Company pursuant to the terms and
conditions hereof.
Section 5.02. Repayment of Loan. On or before any
date that principal of or interest on the Bonds is due as set
forth in the Indenture, or any date fixed for the redemption of
any or all of the Bonds pursuant to the Indenture, the Company
covenants and agrees to pay or to cause to be paid in lawful
money of the United States of America to the Trustee for deposit
in the Bond Fund, as a repayment of the loan made to the Company
pursuant to Section 5.01 hereof, a sum equal to the amount
payable on such payment date as principal (whether at maturity,
upon redemption or otherwise) of and premium, if any, and
interest on the Bonds as provided in the Indenture. Each payment
made pursuant to this Section shall be made in immediately
available funds at the principal corporate trust office of the
Trustee during normal banking hours.
In the event that the payment of the principal of and
accrued interest on the Bonds is accelerated under Section 1002
of the Indenture, the Company covenants and agrees to pay, or
cause to be paid, to the Trustee as provided above a sum equal to
all the principal of and interest on the Bonds then outstanding.
Each payment pursuant to this Section shall at all
times be sufficient to pay the amount of principal (whether at
maturity, upon redemption or otherwise) of and premium, if any,
and interest payable on the Bonds on the date that such payment
is due; provided that the obligation of the Company to make any
payment of the principal of or premium, if any, or interest on
the 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 County thereunder in respect of the principal of
or premium, if any, or interest on the Bonds.
Section 5.03. Issuance, Delivery and Surrender of
First Mortgage Bonds. (a) The obligation of the Company set
forth in Section 5.02 hereof to repay the Bonds may be evidenced,
in whole or in part, by the First Mortgage Bonds. With respect
to the Series 1994 Bonds, the Company shall issue and deliver to
the County First Mortgage Bonds as provided in subsection (b) of
this Section 5.03. With respect to any series of Additional
Bonds, the Company shall issue and deliver to the County First
Mortgage Bonds as provided in any amendment of or supplement to
this Agreement.
(b) Concurrently with the issuance and delivery by the
County of the Series 1994 Bonds, and in order to evidence the
obligation of the Company under Section 5.02 hereof to repay
those installments of the loan from the County which correspond
to payment of the principal of the Series 1994 Bonds, the excess
of the principal amount thereof to be applied to the payment of
accrued interest on the Series 1994 Bonds, the Company shall
issue and deliver to the County a series of First Mortgage Bonds
(i) maturing on the stated maturity date of the Series 1994
Bonds, (ii) in a principal amount equal to the principal of the
Series 1994 Bonds plus eight months (8/12) of the annual interest
on the Series 1994 Bonds, (iii) containing redemption provisions
correlative to any provisions of the Indenture relating to the
Series 1994 Bonds requiring mandatory redemption thereof, (iv)
requiring payments to be made to the Trustee for the account of
the County, and (v) bearing no interest.
(c) The obligation of the Company to make any payment
of the principal of or premium, if any, or interest on the First
Mortgage 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 County thereunder in respect of the principal
of or premium, if any, or interest on the Bonds.
(d) The County shall not sell, assign or transfer the
First Mortgage Bonds, except to the extent provided in Section
5.04 hereof. In view of the pledge and assignment referred to in
said Section 5.04, the County agrees that (i) in satisfaction of
the obligations of the Company set forth in paragraph (b) of this
Section 5.03 with respect to the Series 1994 Bonds, or in any
amendment of or supplement to this Agreement with respect to any
series of Additional Bonds, the First Mortgage 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 First Mortgage
Bonds except to a successor trustee under the Indenture, and
shall surrender First Mortgage Bonds to the Company Mortgage
Trustees in accordance with the provisions of subsection (e) of
this Section 5.03; 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 First Mortgage 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
410 of the Indenture shall be binding upon the Company.
(e) At the time any Bonds of any series cease to be
outstanding (other than by reason of the payment or redemption of
First Mortgage Bonds of the corresponding series and other than
by reason of the applicability of clause (c) in the definition of
"outstanding" herein):
(i) in the event that such Bonds were not subject
to redemption pursuant to a sinking fund therefor, the
County shall cause the Trustee to surrender to the
Company Mortgage Trustees a corresponding principal
amount of First Mortgage Bonds, plus, in the case of
the Series 1994 Bonds, a principal amount of such First
Mortgage Bonds equal to eight months (8/12) of the
annual interest payable in respect of such series, of
the series corresponding to such series of Bonds,
maturing on the same date as such Bonds; or
(ii) in the event that such Bonds were subject to
redemption pursuant to a sinking fund therefor, the
County shall cause the Trustee to surrender to the
Company Mortgage Trustees a corresponding principal
amount of First Mortgage Bonds, of the series
corresponding to such series of Bonds, maturing, at the
election of the Company:
(A) on the same date as such Bonds; or
(B) on any sinking fund redemption date relating
to outstanding Bonds of such series; provided,
however, that the Company shall have delivered to
the Trustee pursuant to the Indenture an
irrevocable certificate specifying that such Bonds
are to be credited against the sinking fund
payment or payments to be made on the maturity
date, and in the principal amount, of the First
Mortgage Bonds so to be surrendered.
(f) For the purpose of determining whether or not any
payment of the principal of or premium, if any, or interest on
the First Mortgage Bonds shall have been made in full, any moneys
paid by the Company in respect of the First Mortgage Bonds which
shall have been withdrawn by the Trustee from the Bond Fund
pursuant to Section 1102 of the Indenture shall be deemed to have
been paid by the Company to the Trustee pursuant to Section 5.05
hereof and notto have been paid by the Company in respect of the
First Mortgage Bonds.
Section 5.04. Payments Assigned; Obligation Absolute.
It is understood and agreed that all payments to be made by the
Company of the loan by the County are, by the Indenture, to be
pledged by the County to the Trustee, and that all rights and
interest of the County hereunder (except for the County's rights
under Sections 5.05, 5.06, 5.07, 6.03 and 8.05 hereof and any
rights of the County to receive notices, certificates, requests,
requisitions, directions and other communications hereunder),
including the right to receive the First Mortgage Bonds and the
First Mortgage Bonds, are to be pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make the payments of
the purchase price of the Facilities 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 Agreement, the
Indenture or otherwise by the County or the Trustee or any other
party, or out of any obligation or liability at any time owing to
the Company by the County, the Trustee or any other party, and,
further, that the payments of the loan from the County to the
Company and the other payments due hereunder shall continue to be
payable at the times and in the amounts specified herein and in
the First Mortgage Bonds, whether or not the Facilities or the
Plant, or any portion thereof, shall have been completed or shall
have been destroyed by fire or other casualty, or title thereto,
or the use thereof, shall have been taken by the exercise of the
power of eminent domain, and that there shall be no abatement of
or diminution in any such payments by reason thereof, whether or
not the Facilities or the Plant 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 the Plant,
or for any other reason.
Section 5.05. Payment of Expenses. The Company shall
pay, or cause to be paid, all of the Administration Expenses of
the County, the payment of the compensation and the reimbursement
of expenses and advances of the Trustee, any paying agent, any
co-paying agent, and the registrar under the Indenture to be made
directly to such entity.
Section 5.06. Indemnification. The Company releases
the County and the Trustee from, agrees that the County and the
Trustee shall not be liable for, and agrees to indemnify and hold
the County and the Trustee 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, except in any case as a result of
the negligence or bad faith of the County or the Trustee.
The Company will indemnify and hold the County and 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 this
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, or as a
result of the gross negligence or bad faith of the County.
Under this Section 5.06, the Company shall also be
deemed to release, indemnify and agree to hold harmless each
employee, official or officer of the County and the Trustee to
the same extent as the County and the Trustee.
Section 5.07. Payment of Taxes; Discharge of Liens.
The Company shall: (a) pay, or make provision for payment of, all
lawful taxes and assessments, including income, profits, property
or excise taxes, if any, or other municipal or governmental
charges, levied or assessed by any federal, state or municipal
government or political body upon the County with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts; provided that if the
Company shall first notify the County and the Trustee of its
intention so to do, the Company may in good faith contest any
such lien or charge or claims or demands in appropriate legal
proceedings, and in such event may permit the items so contested
to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the County or the
Trustee shall notify the Company in writing that, in the opinion
of counsel to the County or the Trustee, by nonpayment of any
such items the lien of the Indenture as to the amounts payable
hereunder will be materially endangered, in which event the
Company shall promptly pay and cause to be satisfied and
discharged all such unpaid items. The County shall cooperate
fully with the Company in any such contest.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
Section 6.01. 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; provided, however, that the Company may consolidate
with or merge with or into, or sell or otherwise transfer all or
substantially all of its assets (and may thereafter dissolve) to,
another corporation, incorporated under the laws of the United
States, one of the states thereof or the District of Columbia, if
the surviving, resulting or transferee corporation, as the case
may be (if other than the Company), prior to or simultaneously
with such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder and on the First Mortgage Bonds.
If consolidation, merger or sale or other transfer is
made as permitted by this Section 6.01, the provisions of this
Section 6.01 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
6.01.
Section 6.02. Permits or Licenses. In the event that
it may be necessary for the proper performance of this Agreement
on the part of the Company or the County that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the County, the Company and the County each shall,
upon the request of either, execute such application or
applications.
Section 6.03. County's and Trustee's Access to
Facilities. The County and the Trustee shall have the right,
upon appropriate prior notice to the Company, to have reasonable
access to the Facilities during normal business hours for the
purpose of making examinations and inspections of the same.
Section 6.04. Arbitrage Covenant. The County and the
Company covenant that 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. The Company further covenants that: (a)
all actions with respect to the Bonds required by Section 148(f)
of the Code shall be taken; (b) it shall make the determinations
required by paragraph (b) of Section 702 of the Indenture and
promptly notify the Trustee of the same, together with
supportingcalculations; and (c) it shall within twenty-five (25)
days after (i) the calendar date which corresponds to the final
maturity of the respective series of Bonds and each anniversary
thereof falling on or after the date of initial authentication
and delivery thereof up to and including the final maturity of
such series of the Bonds, unless the final payment, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by an Authorized Company
Representive to the effect that the Company is then in compliance
with its covenants contained in clauses (a) and (b) of this
sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
Section 6.05. Use of Facilities. The Company shall
exercise all of its rights, powers, elections and options under
the Plant Agreements to cause the Facilities to be used for the
abatement or control of pollution or for the disposal of sewage
or solid waste.
Section 6.06. Tax Exempt Status of Bonds. The County
and the Company mutually covenant and agree that neither of them
shall take or authorize or permit any action to be taken, and
have not taken or authorized or permitted any action to be taken,
which results in interest paid on the Bonds being included in
gross income for purposes of federal income taxes. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
(a) Not less than 90% of the proceeds (within the
meaning of Section 103(b)(4) of the 1954 Code and
regulations thereunder) from the sale of the Prior
Bonds was expended (or was used to retire bonds not
less than 90% of the proceeds from the sale of which
was expended) (i) for proper costs of land or property
of a character subject to the allowance for
depreciation under Section 167 of the Code, or which
will be, for federal income tax purposes, chargeable to
capital account or would have been so chargeable either
with a proper election by the Company (for example
under Section 266 of the Code) or but for a proper
election by the Company to deduct such amounts, and
(ii) to provide sewage or solid waste disposal
facilities within the meaning of Section 103(b)(4)(E)
or (F) of the Code and regulations thereunder.
(b) Except for the Pope County Bonds, within
thirty-one (31) days of the date of issuance of
theSeries 1994 Bonds, there neither have been nor will
be any private activity bonds (within the meaning of
Section 141(a) of the 1986 Code) sold to finance
facilities of the Company or any related person within
the meaning of Section 147(a)(2) of the Code, under a
common plan of marketing, at substantially the same
rate of interest, and for which a common or pooled
security will be used or available to pay debt service.
(c) The average maturity of the Series 1994 Bonds
(within the meaning of Section 147(b) of the 1986 Code
and regulations thereunder) does not exceed 120% of the
average reasonably expected economic life of the
Facilities (within the meaning of Section 147(b) of the
1986 Code and regulations thereunder); and the average
maturity of the Pope County Bonds (within the meaning
of Section 147(b) of the 1986 Code and regulations
thereunder) does not exceed 120% of the average
reasonably expected economic life of the facilities
being refinanced with the proceeds of the Pope County
Bonds (within the meaning of Section 147(b) of the 1986
Code and regulations thereunder).
(d) No changes will be made in the Facilities
which in any way impairs the exclusion of interest on
any of the Bonds from gross income for purposes of
federal income taxation.
(e) No action shall be taken that will cause the
Series 1994 Bonds to be "federally guaranteed" as
defined in Section 149(b) of the Code.
(f) No portion of the proceeds of the Series 1994
Bonds in excess of 2% of the proceeds thereof (within
the meaning of Section 147(g) of the Code and
regulations thereunder) will be used to finance costs
of issuance of the Series 1994 Bonds.
(g) (i) The Facilities being refinanced out of
the proceeds of the Series 1994 Bonds are part of the
facilities described in the Memorandum of Agreement
dated May 29, 1974, between the County and the Company;
(ii) acquisition and construction of each of such
Facilities commenced on or after May 29, 1974, and
(iii) none of such Facilities was placed in service or
acquired (whichever occurred last) more than one year
prior to the date of issuance of the Prior Bonds.
The covenants and agreements contained in this Section 6.06 shall
survive any termination of this Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
Section 7.01. By the County. Except as provided in
Article V of this Agreement, the County will not sell, lease,
assign, transfer, convey or otherwise dispose of its interest in
the Facilities or any portion thereof or interest therein or in
the revenues therefrom without the written consent of the
Company, nor will it create or suffer to be created any debt,
lien or charge thereon, not consented to by the Company, except
Permitted Encumbrances.
Section 7.02. By the Company. The Company's interest
in this 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 6.01 hereof)
shall relieve the Company from primary liability for its
obligations under Section 5.02 and 5.03 hereof (including its
obligations on the First Mortgage Bonds) to repay the loan from
the County to the Company, 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.
After any lease or sale of any element or unit of the
Facilities, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Facilities for the purposes of this Agreement.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the County and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
Section 7.03. Limitation. This 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 or in Section
6.01 or in the Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Each of the
following events shall constitute and is referred to in this
Agreement as an "Event of Default":
(a) a "Default" as such term is defined in Section 65
of the Company Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 5.02 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 1001 of the Indenture; or
(c) a failure by the Company to pay when due any other
amount required to be paid under this 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 County
or the Trustee, unless the County and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the County 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.
Section 8.02. Force Majeure. The provisions of
Section 8.01 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 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 obligations under
Section 5.02 hereof to repay the loan made to the Company and its
obligations under Sections 5.06, 6.01, 6.04, 6.06 and 9.01
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 causeor 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 8.03. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
clause (a) of Section 8.01 hereof, the Trustee, as the holder of
the First Mortgage 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 clause (b) of Section 8.01 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 5.02 hereof shall,
without further action, become and be immediately due and
payable.
(c) Upon the occurrence and continuance of any Event
of Default, the County 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 come due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this 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 County 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 County or the Trustee, then and in
every case the County and the Trustee shall be restored to their
former positions and rights hereunder, respectively, and all
rights, remedies and powers of the County and the Trustee shall
continue as though no such proceeding had been taken.
Section 8.04. No Remedy Exclusive. No remedy
conferred upon or reserved to the County or the Trustee by this
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 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 or power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the County
or the Trustee toexercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice other than
such notice as may be required in this Article.
Section 8.05. Agreement to Pay Attorneys' Fees and
Expenses. In the event the Company should default under any of
the provisions of this Agreement and the County or the Trustee
should employ attorneys or incur other expenses for the
collection of payments due hereunder or on the First Mortgage
Bonds or for the enforcement of performance or observance of any
obligation or agreement on the part of the Company contained
herein, the Company agrees that it will on demand therefor pay to
the County or the Trustee, as the case may be, the reasonable
fees of such attorneys and such other expenses so incurred.
Section 8.06. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the County 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
County's rights in and under this Agreement to the Trustee under
the Indenture, the County 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
rescission and annulment of its consequences, shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequence thereof.
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
Section 9.01. Redemption of Bonds. The County 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 County and
the Trustee from the Company of a notice designating the
principal amounts, series and maturities 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, which shall not be
less than forty-five (45) days from the date such notice is
given, 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 Bonds to be redeemed, or for
the payment or redemption of which provision is to be made, are
first deemed to be paid in accordance with Article IX of the
Indenture. The Company shall furnish, as a prepayment of the
amounts due under Section 5.02 hereof, any moneys or Government
Securities (as defined in the Indenture) required by the
Indenture to be deposited with the Trustee or otherwise paid by
the County in connection with any of the foregoing purposes.
Section 9.02. 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 and of the series and maturities specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
Section 10.01. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 404 of the Indenture.
Section 10.02. Photocopies and Reproductions. A
photocopy or other reproduction of this Agreement may be filed as
a financing statement pursuant to the Uniform Commercial Code,
although the signatures of the Company and the County on such
reproduction are not original manual signatures.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. Except as otherwise provided
in this Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the County, the Company or the Trustee. Copies of
each notice, certificate or other communication given hereunder
by or to the Company shall be mailed by registered or certified
mail, postage prepaid, to the Trustee; provided, however, that
the effectiveness of any such notice shall not be affected by the
failure to send any such copies. Notices, certificates or other
communications shall be sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 551
Little Rock, Arkansas 72203
Attention: Treasurer
County: Jefferson County, Arkansas
Jefferson County Courthouse
Barraque & Main Street
Pine Bluff, Arkansas 71601
Attention: County Judge
Trustee: Simmons First National Bank
P.O. Box 7009
Pine Bluff, Arkansas 71611
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 11.02. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
Section 11.03. Execution of Counterparts. This
Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.04. Amounts Remaining in Bond Fund. It is
agreed by the parties hereto that after payment in full of (i)
the Bonds (or the provision for payment thereof having been made
in accordance with the provisions of the Indenture), (ii) the
Administration Expenses of the County, and (iii) all other
amountsrequired to be paid under this Agreement and the
Indenture, any amounts remaining in the Bond Fund shall belong to
and be paid by the Trustee to the Company.
Section 11.05. Amendments, Changes and Modifications.
Except as otherwise provided in this Agreement or the Indenture,
subsequent to the initial issuance of Bonds and prior to payment
in full of the Bonds (or the provision for payment thereof having
been made in accordance with the provisions of the Indenture),
this Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived, without the
written consent of the Trustee which shall not be unreasonably
withheld.
Section 11.06. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable laws of the State of Arkansas.
Section 11.07. Authorized Company Representatives. An
Authorized Company Representative shall act on behalf of the
Company whenever the approval of the Company is required or the
Company requests the County to take some action, and the County
and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint
against the other or against the Trustee as a result of any such
action taken.
Section 11.08. Term of the Agreement. This Agreement
shall be in full force and effect from the date hereof until the
right, title and interest of the Trustee in and to the Trust
Estate (as defined in the Indenture) shall have ceased,
determined and become void in accordance with Article IX of the
Indenture and until all payments required under this Agreement
shall have been made.
Section 11.09. No Personal Liability. No covenant or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any official, officer, agent, or
employee of the County in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
Section 11.10. Parties in Interest. This Agreement
shall inure to the benefit of and shall be binding upon the
County, the Company 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 Agreement; provided,
however, that any obligation of the County created by or arising
out of this Agreement shall be payable solely out of the revenues
derived from this 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 Agreement by the County
shallimpose, a pecuniary liability upon the County or a charge
upon the County's general credit or against its taxing powers.
<PAGE>
IN WITNESS WHEREOF, the County and the Company have
caused this 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.
JEFFERSON COUNTY, ARKANSAS
ATTEST:
By _____________________________
___________________________ County Judge
County Clerk
(SEAL)
ARKANSAS POWER & LIGHT COMPANY
ATTEST:
By _____________________________
___________________________
_____________________________
___________________________ (title)
(title)
(SEAL)
<PAGE>
EXHIBIT A
DESCRIPTION OF FACILITIES
I. Ash Disposal Facilities. These facilities are designed
to remove and dispose of bottom ash and fly ash from each
generating unit of the Plant, and include the following
components:
(a) Two dewatering bins per unit;
(b) One conveyor blower per unit;
(c) Two silo fluidizing blowers per unit;
(d) One fly ash bin per unit;
(e) Two rotary unloaders per unit; and
(f) Two water ponds which function in conjunction with the
dewatering bins.
II. Condenser Cooling Water Facilities. Separate condenser
cooling water facilities are provided for each generating unit of
the Plant and are designed to supply the cooling water required
to remove the heat loads developed in the main condenser, as
follows:
(a) Two 50% capacity circulating water pumps per unit;
(b) One hyperbolic, natural draft cooling tower per unit;
and
(c) Circulating water piping from the cooling tower of each
unit to the turbine condensers of each unit, and return
piping.
Excluded herefrom are the special intake structures, low pressure
service water pumps, river intake pumps, clean water holding pond
and special discharge structures, clean water intake canal,
blowdown water pipe, and makeup water pipe with respect to each
generating unit.
III. Sewage Treatment and Disposal System. This system
consists of a package sewage treatment plant and necessary piping
to process the sanitary sewage from the Plant.
IV. Electrostatic Precipitators. There are four
electrostatic precipitators per unit, designed to remove
particulate matter from flue gases prior to being released to the
environment.
V. Coagulation and Sedimentation Ponds. There are two
coagulation and sedimentation ponds to chemically
treatcontaminated water derived from the ash disposal area, the
Plant site, and the coal handling area.
Exhibit B-1(b)
_________________________________________________________________
POPE COUNTY, ARKANSAS
and
ARKANSAS POWER & LIGHT COMPANY
______________
LOAN AGREEMENT
______________
Dated as of June 15, 1994
_________________________________________________________________
$19,500,000 Pope County, Arkansas Pollution Control Revenue
Refunding Bonds, Series 1994 (Arkansas Power & Light Company
Project)
<PAGE>
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of June 15, 1994, by and
between POPE COUNTY, ARKANSAS, a political subdivision under the
Constitution and laws of the State of Arkansas (hereinafter
referred to as the "County"), and ARKANSAS POWER & LIGHT COMPANY,
a corporation organized and existing under and by virtue of the
laws of the State of Arkansas (hereinafter referred to as the
"Company").
W I T N E S S E T H:
WHEREAS, the County is authorized and empowered under
the laws of the State of Arkansas, including particularly Title
14, Chapter 267 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds 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, certain pollution control facilities
(hereinafter referred to as the "Facilities") have been acquired,
constructed and equipped at the Company's electric generating
plant located within the boundaries of the County near
Russellville, Arkansas and known as Arkansas Nuclear One
(hereinafter referred to as the "Plant"); and
WHEREAS, pursuant to and in accordance with the
provisions of the Act, the County has heretofore issued and
delivered its Pollution Control Revenue Bonds, Series 1976
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $16,600,000, its Pollution Control Revenue
Bonds, Series 1978 (Arkansas Power & Light Company Project), in
the aggregate principal amount of $1,900,000, and its Pollution
Control Revenue Bonds, Special Industrial Series (Arkansas Power
& Light Company Project), in the aggregate principal amount of
$1,000,000 (collectively,(the "Prior Bonds"), for the purpose of
financing the cost of acquiring, constructing and equipping the
Facilities and paying the expenses of authorizing and issuing the
Prior Bonds; and
WHEREAS, the County proposes to issue $19,500,000
aggregate principal amount of its revenue bonds under the Act
(the "Series 1994 Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, in connection with the issuance of the Series
1994 Bonds the proceeds of the Series 1994 Bonds will be loaned
by the County to the Company upon the terms and conditions set
forth herein; and
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants herein made, and subject to the
conditions herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to the words
and terms elsewhere defined in this Agreement or in the
Indenture, the following words and terms as used in this
Agreement shall have the following meanings unless the context or
use indicates another or different meaning:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- Bonds in addition to the Series
1994 Bonds, which are issued under the provisions of Section 211
of the Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to this
Agreement, the Indenture and any transaction or event
contemplated by this Agreement or the Indenture including the
compensation and reimbursement of expenses and advances payable
to the Trustee, any paying agent, any co-paying agent, and the
registrar under the Indenture.
"Agreement" -- This Loan Agreement and any amendments
and supplements hereto.
"Authorized Company Representative" -- The person or
persons at the time designated to act on behalf of the Company,
such designation in each case to be evidenced by a certificate
furnished to the County and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Senior Vice President, any Vice
President, or the Treasurer.
"Bonds" -- The Series 1994 Bonds and all Additional
Bonds issued by the County pursuant to the Indenture.
"Bond Counsel" -- Any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the County and the Trustee.
"Bond Fund" -- The fund by that name created and
established in Section 501 of the Indenture.
"Clearing Fund" -- The fund by that name created and
established in Section 601 of the Indenture.
"Code" -- The Internal Revenue Code of 1954, as
heretofore amended (the "1954 Code"), and the Internal Revenue
Code of 1986, as heretofore or hereafter amended (the "1986
Code"), as applicable.
"Company" -- Arkansas Power & Light Company, a
corporation organized and operating under the laws of the State
of Arkansas, and its permitted successors and assigns.
"Company Mortgage" -- The Mortgage and Deed of Trust,
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (Morgan Guaranty Trust Company of New
York, successor) and Henry A. Theis (John W. Flaherty,
successor), and, as to property, real or personal, situated or
being in Missouri, Marvin A. Mueller (The Boatmen's National Bank
of St. Louis, successor), as trustees, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustees" -- The trustees under the
Company Mortgage.
"County" -- Pope County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Event of Default" -- Any event of default specified in
Section 8.01 hereof.
"Facilities" -- The pollution control facilities at the
Plant which were financed and refinanced, in whole or in part,
with the proceeds of the Prior Bonds, which facilities are
generally described in Exhibit A hereto.
"First Mortgage Bonds" -- The bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.03 hereof.
"Indenture" -- The Trust Indenture dated as of June 15,
1994, between the County and the Trustee, securing the Bonds, and
any amendments and supplements thereto.
"Jefferson County Bonds" -- The Jefferson County,
Arkansas Pollution Control Revenue Bonds, Series 1994 (Arkansas
Power & Light Company Project), in the aggregate principal amount
of $9,200,000, being issued and delivered simultaneously with the
issuance and delivery of the Series 1994 Bonds.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date for
cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to the Indenture.
"Plant" -- The Company's electric generating plant
located within the boundaries of the County near Russellville,
Arkansas and known as Arkansas Nuclear One.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series 1976, in the aggregate principal amount of
$16,600,000, the County's Pollution Control Revenue Bonds, Series
1978, in the aggregate principal amount of $1,900,000, and the
County's Pollution Control Revenue Bonds, Special Industrial
Series, in the aggregate principal amount of $1,000,000.
"Series 1994 Bonds" -- The initial issue of Bonds under
and secured by the Indenture in the aggregate principal amount of
$19,500,000.
"Trustee" -- The banking corporation or association
designated as Trustee in the Indenture, and its successor or
successors as such Trustee. The original Trustee is Simmons
First National Bank, Pine Bluff, Arkansas.
Section 1.02. Use of Words and Phrases. "Herein",
"hereby", "hereunder", "hereof", "hereinabove", "hereinafter",
and other equivalent words and phrases refer to this Agreement
and not solely to the particular portion thereof in which any
such word is used. The definitions set forth in Section 1.01
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.
ARTICLE II
REPRESENTATIONS
Section 2.01. Representations and Warranties of the
County. The County makes the following representations and
warranties as the basis for the undertakings on the part of the
Company herein contained:
(a) The County is a political subdivision duly
existing under the Constitution and laws of the State of
Arkansas.
(b) The County has the power to enter into the trans
actions contemplated by this Agreement and to carry out its
obligations hereunder. By proper action of the governing body of
the County, the County has been duly authorized to execute and
deliver this Agreement.
(c) The County has not, and will not, except as
otherwise required by mandatory provisions of law, assign its
interest in this Agreement other than to secure the Bonds.
(d) The Facilities and their operation promote the
securing and developing of industry and the health, safety and
physical and economic welfare of the County and its inhabitants,
and thereby further the public purposes of the Act.
Section 2.02. Representations and Warranties of the
Company. The Company makes the following representations and
warranties as the basis for the undertakings on the part of the
County herein contained:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Arkansas, is not
in violation of any provision of its Articles of Incorporation,
or its Bylaws, has power to enter into this Agreement and to
perform and observe the agreements and covenants on its part
contained herein, including without limitation the power to issue
the First Mortgage Bonds as contemplated herein and in the
Company Mortgage, and has duly authorized the execution and
delivery of this Agreement by proper corporate action.
(b) The Facilities constitute a pollution control
project of the type authorized and permitted by the Act.
(c) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, including, without limitation, the
issuance and delivery of the First Mortgage Bonds, conflicts with
or results in a breach of the terms, conditions or provisions of
any restriction or any agreement or instrument to which the
Companyis now a party or by which the Company is bound, or con
stitutes 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 herein and under the Company
Mortgage.
(d) The Securities and Exchange Commission, the
Arkansas Public Service Commission, and the Tennessee Public
Service Commission have each approved all matters relating to the
Company's participation in the transactions contemplated by this
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 or in connection with the issuance of series of
Additional Bonds.
ARTICLE III
THE FACILITIES
Section 3.01. Construction of the Facilities. The
Company has caused the Facilities to be constructed in order to
effectuate the purposes of the Act.
Section 3.02. Maintenance of Facilities; Remodeling.
The Company shall, at its expense, cause the Facilities, and
every element and unit thereof, to be maintained, preserved and
kept in good repair, working order and condition, and from time
to time to cause all needful and proper repairs, replacements,
additions, betterments and improvements to be made thereto;
provided, however, that the Company may discontinue the operation
of, or reduce the capacity of, the Facilities, or any element or
unit thereof, if, in the judgment of the Company, any such action
is necessary or desirable in the conduct of the business of the
Company, or if the Company is ordered so to do by any regulatory
authority having jurisdiction in the premises, or if the Company
intends to sell or dispose of the same and within a reasonable
time shall endeavor to effectuate such sale. The Company shall
notify the County as to the nature and extent of any material
damage or loss to the Facilities and of the discontinuance of the
operation of the Facilities, or any material element or unit
thereof.
The Company may at its own expense cause the Facilities
to be remodeled or cause substitutions, modifications and
improvements to be made to the Facilities from time to time as
it, in its discretion, may deem to be desirable for its uses and
purposes, which remodeling, substitutions, modifications and
improvements shall be included under the terms of this Agreement
as part of the Facilities.
Section 3.03. Insurance. The Company shall, at its
expense, cause the Facilities to be kept insured against fire to
the extent that property of similar character is usually so
insured by companies similarly situated and operating like
properties, to a reasonable amount, by reputable insurance
companies or, in lieu of or supplementing such insurance in whole
or in part, adopt some other method or plan of protection against
loss by fire at least equal in protection to the method or plan
of protection against such loss of companies similarly situated
and operating like properties. All proceeds of such insurance,
or such other method or plan, shall be for the account of the
Company.
ARTICLE IV
ISSUANCE OF BONDS; DISPOSITION OF PROCEEDS OF BONDS
Section 4.01. Issuance of the Series 1994 Bonds. The
County shall issue the Series 1994 Bonds under and in accordance
with the Indenture, subject to the provisions of any bond
purchase agreement between the County and the original purchaser
or purchasers of the Series 1994 Bonds. The Company hereby
approves the issuance of the Series 1994 Bonds and all terms and
conditions thereof.
Section 4.02. Additional Bonds. So long as the
Company shall not be in default hereunder, and at the request of
the Company, the County may authorize and issue Additional Bonds
in aggregate principal amounts specified from time to time by the
Company in order to provide funds for the purpose of refunding
the Series 1994 Bonds or any series of Additional Bonds, in whole
or in part, or any combination thereof.
The right to issue Additional Bonds set forth in this
Agreement and the Indenture shall not imply that the County and
the Company may not enter into, and the County and the Company
expressly reserve the right to enter into, to the extent
permitted by law, another agreement or agreements with respect to
the issuance by the County, under an indenture or indentures
other than the Indenture, of refunding bonds to refund all or any
principal amount of any series of Bonds, and the provisions of
this Agreement and the Indenture governing the issuance of
Additional Bonds shall not apply thereto.
Section 4.03. Disposition of Bond Proceeds. The
proceeds of the issuance and sale of the Series 1994 Bonds and
any Additional Bonds, other than accrued interest, if any, paid
by the initial purchaser or purchasers thereof, shall be
deposited into the Clearing Fund, and any such accrued interest
shall be deposited into the Bond Fund, all in accordance with the
provisions of the Indenture.
ARTICLE V
LOAN PROVISIONS; FIRST MORTGAGE BONDS;
OTHER OBLIGATIONS
Section 5.01. Loan of Bond Proceeds. Concurrently
with the sale and delivery of each series of the Bonds, the
County covenants and agrees that it will, upon the terms and
conditions in this Agreement, lend to the Company an amount equal
to the proceeds (other than accrued interest) of such series.
Pursuant to said covenant and agreement, the County will issue
the Bonds upon the terms and conditions contained in this
Agreement and the Indenture and will cause the Bond proceeds to
be applied as provided in Article IV hereof. The Bonds may be
sold by the County, with the consent of the Company, at a
discount from their principal amount. If the County does sell
Bonds at a discount, the amount of such discount shall be deemed
to have been loaned to the Company pursuant to the terms and
conditions hereof.
Section 5.02. Repayment of Loan. On or before any
date that principal of or interest on the Bonds is due as set
forth in the Indenture, or any date fixed for the redemption of
any or all of the Bonds pursuant to the Indenture, the Company
covenants and agrees to pay or to cause to be paid in lawful
money of the United States of America to the Trustee for deposit
in the Bond Fund, as a repayment of the loan made to the Company
pursuant to Section 5.01 hereof, a sum equal to the amount
payable on such payment date as principal (whether at maturity,
upon redemption or otherwise) of and premium, if any, and
interest on the Bonds as provided in the Indenture. Each payment
made pursuant to this Section shall be made in immediately
available funds at the principal corporate trust office of the
Trustee during normal banking hours.
In the event that the payment of the principal of and
accrued interest on the Bonds is accelerated under Section 1002
of the Indenture, the Company covenants and agrees to pay, or
cause to be paid, to the Trustee as provided above a sum equal to
all the principal of and interest on the Bonds then outstanding.
Each payment pursuant to this Section shall at all
times be sufficient to pay the amount of principal (whether at
maturity, upon redemption or otherwise) of and premium, if any,
and interest payable on the Bonds on the date that such payment
is due; provided that the obligation of the Company to make any
payment of the principal of or premium, if any, or interest on
the 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 County thereunder in respect of the principal of
or premium, if any, or interest on the Bonds.
Section 5.03. Issuance, Delivery and Surrender of
First Mortgage Bonds. (a) The obligation of the Company set
forth in Section 5.02 hereof to repay the Bonds may be evidenced,
in whole or in part, by the First Mortgage Bonds. With respect
to the Series 1994 Bonds, the Company shall issue and deliver to
the County First Mortgage Bonds as provided in subsection (b) of
this Section 5.03. With respect to any series of Additional
Bonds, the Company shall issue and deliver to the County First
Mortgage Bonds as provided in any amendment of or supplement to
this Agreement.
(b) Concurrently with the issuance and delivery by the
County of the Series 1994 Bonds, and in order to evidence the
obligation of the Company under Section 5.02 hereof to repay
those installments of the loan from the County which correspond
to payment of the principal of the Series 1994 Bonds, the excess
of the principal amount thereof to be applied to the payment of
accrued interest on the Series 1994 Bonds, the Company shall
issue and deliver to the County a series of First Mortgage Bonds
(i) maturing on the stated maturity date of the Series 1994
Bonds, (ii) in a principal amount equal to the principal of the
Series 1994 Bonds plus eight months (8/12) of the annual interest
on the Series 1994 Bonds, (iii) containing redemption provisions
correlative to any provisions of the Indenture relating to the
Series 1994 Bonds requiring mandatory redemption thereof, (iv)
requiring payments to be made to the Trustee for the account of
the County, and (v) bearing no interest.
(c) The obligation of the Company to make any payment
of the principal of or premium, if any, or interest on the First
Mortgage 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 County thereunder in respect of the principal
of or premium, if any, or interest on the Bonds.
(d) The County shall not sell, assign or transfer the
First Mortgage Bonds, except to the extent provided in Section
5.04 hereof. In view of the pledge and assignment referred to in
said Section 5.04, the County agrees that (i) in satisfaction of
the obligations of the Company set forth in paragraph (b) of this
Section 5.03 with respect to the Series 1994 Bonds, or in any
amendment of or supplement to this Agreement with respect to any
series of Additional Bonds, the First Mortgage 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 First Mortgage
Bonds except to a successor trustee under the Indenture, and
shall surrender First Mortgage Bonds to the Company Mortgage
Trustees in accordance with the provisions of subsection (e) of
this Section 5.03; 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 First Mortgage 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
410 of the Indenture shall be binding upon the Company.
(e) At the time any Bonds of any series cease to be
outstanding (other than by reason of the payment or redemption of
First Mortgage Bonds of the corresponding series and other than
by reason of the applicability of clause (c) in the definition of
"outstanding" herein):
(i) in the event that such Bonds were not subject
to redemption pursuant to a sinking fund therefor, the
County shall cause the Trustee to surrender to the
Company Mortgage Trustees a corresponding principal
amount of First Mortgage Bonds, plus, in the case of
the Series 1994 Bonds, a principal amount of such First
Mortgage Bonds equal to eight months (8/12) of the
annual interest payable in respect of such series, of
the series corresponding to such series of Bonds,
maturing on the same date as such Bonds; or
(ii) in the event that such Bonds were subject to
redemption pursuant to a sinking fund therefor, the
County shall cause the Trustee to surrender to the
Company Mortgage Trustees a corresponding principal
amount of First Mortgage Bonds, of the series
corresponding to such series of Bonds, maturing, at the
election of the Company:
(A) on the same date as such Bonds; or
(B) on any sinking fund redemption date relating
to outstanding Bonds of such series; provided,
however, that the Company shall have delivered to
the Trustee pursuant to the Indenture an
irrevocable certificate specifying that such Bonds
are to be credited against the sinking fund
payment or payments to be made on the maturity
date, and in the principal amount, of the First
Mortgage Bonds so to be surrendered.
(f) For the purpose of determining whether or not any
payment of the principal of or premium, if any, or interest on
the First Mortgage Bonds shall have been made in full, any moneys
paid by the Company in respect of the First Mortgage Bonds which
shall have been withdrawn by the Trustee from the Bond Fund
pursuant to Section 1102 of the Indenture shall be deemed to have
been paid by the Company to the Trustee pursuant to Section 5.05
hereof and notto have been paid by the Company in respect of the
First Mortgage Bonds.
Section 5.04. Payments Assigned; Obligation Absolute.
It is understood and agreed that all payments to be made by the
Company of the loan by the County are, by the Indenture, to be
pledged by the County to the Trustee, and that all rights and
interest of the County hereunder (except for the County's rights
under Sections 5.05, 5.06, 5.07, 6.03 and 8.05 hereof and any
rights of the County to receive notices, certificates, requests,
requisitions, directions and other communications hereunder),
including the right to receive the First Mortgage Bonds and the
First Mortgage Bonds, are to be pledged and assigned to the
Trustee. The Company assents to such pledge and assignment and
agrees that the obligation of the Company to make the payments of
the purchase price of the Facilities 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 Agreement, the
Indenture or otherwise by the County or the Trustee or any other
party, or out of any obligation or liability at any time owing to
the Company by the County, the Trustee or any other party, and,
further, that the payments of the loan from the County to the
Company and the other payments due hereunder shall continue to be
payable at the times and in the amounts specified herein and in
the First Mortgage Bonds, whether or not the Facilities or the
Plant, or any portion thereof, shall have been completed or shall
have been destroyed by fire or other casualty, or title thereto,
or the use thereof, shall have been taken by the exercise of the
power of eminent domain, and that there shall be no abatement of
or diminution in any such payments by reason thereof, whether or
not the Facilities or the Plant 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 the Plant,
or for any other reason.
Section 5.05. Payment of Expenses. The Company shall
pay, or cause to be paid, all of the Administration Expenses of
the County, the payment of the compensation and the reimbursement
of expenses and advances of the Trustee, any paying agent, any
co-paying agent, and the registrar under the Indenture to be made
directly to such entity.
Section 5.06. Indemnification. The Company releases
the County and the Trustee from, agrees that the County and the
Trustee shall not be liable for, and agrees to indemnify and hold
the County and the Trustee 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, except in any case as a result of
the negligence or bad faith of the County or the Trustee.
The Company will indemnify and hold the County and 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 this
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, or as a
result of the gross negligence or bad faith of the County.
Under this Section 5.06, the Company shall also be
deemed to release, indemnify and agree to hold harmless each
employee, official or officer of the County and the Trustee to
the same extent as the County and the Trustee.
Section 5.07. Payment of Taxes; Discharge of Liens.
The Company shall: (a) pay, or make provision for payment of, all
lawful taxes and assessments, including income, profits, property
or excise taxes, if any, or other municipal or governmental
charges, levied or assessed by any federal, state or municipal
government or political body upon the County with respect to the
Facilities or any part thereof or upon any amounts payable
hereunder; and (b) pay or cause to be satisfied and discharged or
make adequate provision to satisfy and discharge, within sixty
(60) days after the same shall accrue, any lien or charge upon
any amounts payable hereunder, and all lawful claims or demands
for labor, materials, supplies or other charges which, if unpaid,
might be or become a lien upon such amounts; provided that if the
Company shall first notify the County and the Trustee of its
intention so to do, the Company may in good faith contest any
such lien or charge or claims or demands in appropriate legal
proceedings, and in such event may permit the items so contested
to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom, unless the County or the
Trustee shall notify the Company in writing that, in the opinion
of counsel to the County or the Trustee, by nonpayment of any
such items the lien of the Indenture as to the amounts payable
hereunder will be materially endangered, in which event the
Company shall promptly pay and cause to be satisfied and
discharged all such unpaid items. The County shall cooperate
fully with the Company in any such contest.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
Section 6.01. 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; provided, however, that the Company may consolidate
with or merge with or into, or sell or otherwise transfer all or
substantially all of its assets (and may thereafter dissolve) to,
another corporation, incorporated under the laws of the United
States, one of the states thereof or the District of Columbia, if
the surviving, resulting or transferee corporation, as the case
may be (if other than the Company), prior to or simultaneously
with such consolidation, merger, sale or transfer, assumes, by
delivery to the Trustee of an instrument in writing satisfactory
in form and substance to the Trustee, all the obligations of the
Company hereunder and on the First Mortgage Bonds.
If consolidation, merger or sale or other transfer is
made as permitted by this Section 6.01, the provisions of this
Section 6.01 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
6.01.
Section 6.02. Permits or Licenses. In the event that
it may be necessary for the proper performance of this Agreement
on the part of the Company or the County that any application or
applications for any permit or license to do or to perform
certain things be made to any governmental or other agency by the
Company or the County, the Company and the County each shall,
upon the request of either, execute such application or
applications.
Section 6.03. County's and Trustee's Access to
Facilities. The County and the Trustee shall have the right,
upon appropriate prior notice to the Company, to have reasonable
access to the Facilities during normal business hours for the
purpose of making examinations and inspections of the same.
Section 6.04. Arbitrage Covenant. The County and the
Company covenant that 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. The Company further covenants that: (a)
all actions with respect to the Bonds required by Section 148(f)
of the Code shall be taken; (b) it shall make the determinations
required by paragraph (b) of Section 702 of the Indenture and
promptly notify the Trustee of the same, together with
supportingcalculations; and (c) it shall within twenty-five (25)
days after (i) the calendar date which corresponds to the final
maturity of the respective series of Bonds and each anniversary
thereof falling on or after the date of initial authentication
and delivery thereof up to and including the final maturity of
such series of the Bonds, unless the final payment, whether upon
redemption in whole or at maturity, of such Bonds shall have
occurred prior to such anniversary, and (ii) such final payment,
file with the Trustee a statement signed by an Authorized Company
Representive to the effect that the Company is then in compliance
with its covenants contained in clauses (a) and (b) of this
sentence, together with supporting calculations; provided,
however, that if the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that no further action by
the Company is required for such compliance with respect to the
Bonds, the Company shall not thereafter be required to deliver
any such statements or calculations.
Section 6.05. Use of Facilities. The Company shall
cause the Facilities to be used for the abatement or control of
pollution or for the disposal of sewage or solid waste.
Section 6.06. Tax Exempt Status of Bonds. The County
and the Company mutually covenant and agree that neither of them
shall take or authorize or permit any action to be taken, and
have not taken or authorized or permitted any action to be taken,
which results in interest paid on the Bonds being included in
gross income for purposes of federal income taxes. Without
limiting the generality of the foregoing, the Company further
covenants and agrees as follows:
(a) Not less than 90% of the proceeds (within the
meaning of Section 103(b)(4) of the 1954 Code and
regulations thereunder) from the sale of the Prior
Bonds was expended (or was used to retire bonds not
less than 90% of the proceeds from the sale of which
was expended) (i) for proper costs of land or property
of a character subject to the allowance for
depreciation under Section 167 of the Code, or which
will be, for federal income tax purposes, chargeable to
capital account or would have been so chargeable either
with a proper election by the Company (for example
under Section 266 of the Code) or but for a proper
election by the Company to deduct such amounts, and
(ii) to provide sewage or solid waste disposal
facilities within the meaning of Section 103(b)(4)(E)
or (F) of the Code and regulations thereunder.
(b) Except for the Jefferson County Bonds, within
thirty-one (31) days of the date of issuance of the
Series 1994 Bonds, there neither have been nor will be
any private activity bonds (within the meaning of
Section141(a) of the 1986 Code) sold to finance
facilities of the Company or any related person within
the meaning of Section 147(a)(2) of the Code, under a
common plan of marketing, at substantially the same
rate of interest, and for which a common or pooled
security will be used or available to pay debt service.
(c) The average maturity of the Series 1994 Bonds
(within the meaning of Section 147(b) of the 1986 Code
and regulations thereunder) does not exceed 120% of the
average reasonably expected economic life of the
Facilities (within the meaning of Section 147(b) of the
1986 Code and regulations thereunder); and the average
maturity of the Jefferson County Bonds (within the
meaning of Section 147(b) of the 1986 Code and
regulations thereunder) does not exceed 120% of the
average reasonably expected economic life of the
facilities being refinanced with the proceeds of the
Jefferson County Bonds (within the meaning of Section
147(b) of the 1986 Code and regulations thereunder).
(d) No changes will be made in the Facilities
which in any way impairs the exclusion of interest on
any of the Bonds from gross income for purposes of
federal income taxation.
(e) No action shall be taken that will cause the
Series 1994 Bonds to be "federally guaranteed" as
defined in Section 149(b) of the Code.
(f) No portion of the proceeds of the Series 1994
Bonds in excess of 2% of the proceeds thereof (within
the meaning of Section 147(g) of the Code and
regulations thereunder) will be used to finance costs
of issuance of the Series 1994 Bonds.
(g) (i) The Facilities being refinanced out of
the proceeds of the Series 1994 Bonds are part of the
facilities described in the Memorandum of Agreement
dated September 23, 1974, between the County and the
Company (authorized by Order of the County Court
entered as of August 1, 1974); (ii) acquisition and
construction of each of such Facilities commenced prior
to September 2, 1972; and (iii) on August 1, 1974, none
of such Facilities had been placed in service (in that
they were not operating at substantially the level for
which they were designed).
The covenants and agreements contained in this Section 6.06 shall
survive any termination of this Agreement.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
Section 7.01. By the County. Except as provided in
Article V of this Agreement, the County will not sell, lease,
assign, transfer, convey or otherwise dispose of its interest in
the Facilities or any portion thereof or interest therein or in
the revenues therefrom without the written consent of the
Company, nor will it create or suffer to be created any debt,
lien or charge thereon, not consented to by the Company, except
Permitted Encumbrances.
Section 7.02. By the Company. The Company's interest
in this 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 6.01 hereof)
shall relieve the Company from primary liability for its
obligations under Section 5.02 and 5.03 hereof (including its
obligations on the First Mortgage Bonds) to repay the loan from
the County to the Company, 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.
After any lease or sale of any element or unit of the
Facilities, or any interest therein, such element or unit, or
interest therein, shall no longer be deemed to be part of the
Facilities for the purposes of this Agreement.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the County and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
Section 7.03. Limitation. This 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 or in Section
6.01 or in the Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Each of the
following events shall constitute and is referred to in this
Agreement as an "Event of Default":
(a) a "Default" as such term is defined in Section 65
of the Company Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 5.02 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a) or (b) of Section 1001 of the Indenture; or
(c) a failure by the Company to pay when due any other
amount required to be paid under this 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 County
or the Trustee, unless the County and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the County 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.
Section 8.02. Force Majeure. The provisions of
Section 8.01 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 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 obligations under
Section 5.02 hereof to repay the loan made to the Company and its
obligations under Sections 5.06, 6.01, 6.04, 6.06 and 9.01
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 causeor 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 8.03. Remedies on Default. (a) Upon the
occurrence and continuance of any Event of Default described in
clause (a) of Section 8.01 hereof, the Trustee, as the holder of
the First Mortgage 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 clause (b) of Section 8.01 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 5.02 hereof shall,
without further action, become and be immediately due and
payable.
(c) Upon the occurrence and continuance of any Event
of Default, the County 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 come due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this 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 County 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 County or the Trustee, then and in
every case the County and the Trustee shall be restored to their
former positions and rights hereunder, respectively, and all
rights, remedies and powers of the County and the Trustee shall
continue as though no such proceeding had been taken.
Section 8.04. No Remedy Exclusive. No remedy
conferred upon or reserved to the County or the Trustee by this
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 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 or power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the County
or the Trustee toexercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice other than
such notice as may be required in this Article.
Section 8.05. Agreement to Pay Attorneys' Fees and
Expenses. In the event the Company should default under any of
the provisions of this Agreement and the County or the Trustee
should employ attorneys or incur other expenses for the
collection of payments due hereunder or on the First Mortgage
Bonds or for the enforcement of performance or observance of any
obligation or agreement on the part of the Company contained
herein, the Company agrees that it will on demand therefor pay to
the County or the Trustee, as the case may be, the reasonable
fees of such attorneys and such other expenses so incurred.
Section 8.06. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the County 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
County's rights in and under this Agreement to the Trustee under
the Indenture, the County 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
rescission and annulment of its consequences, shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequence thereof.
ARTICLE IX
REDEMPTION OR PURCHASE OF BONDS
Section 9.01. Redemption of Bonds. The County 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 County and
the Trustee from the Company of a notice designating the
principal amounts, series and maturities 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, which shall not be
less than forty-five (45) days from the date such notice is
given, 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 Bonds to be redeemed, or for
the payment or redemption of which provision is to be made, are
first deemed to be paid in accordance with Article IX of the
Indenture. The Company shall furnish, as a prepayment of the
amounts due under Section 5.02 hereof, any moneys or Government
Securities (as defined in the Indenture) required by the
Indenture to be deposited with the Trustee or otherwise paid by
the County in connection with any of the foregoing purposes.
Section 9.02. 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 and of the series and maturities specified in
such notice, and any Bonds so purchased shall thereupon be
canceled by the Trustee.
ARTICLE X
RECORDATION AND OTHER INSTRUMENTS
Section 10.01. Recording and Filing. The Company shall
record and file, or cause to be recorded and filed, all documents
and statements referred to in Section 404 of the Indenture.
Section 10.02. Photocopies and Reproductions. A
photocopy or other reproduction of this Agreement may be filed as
a financing statement pursuant to the Uniform Commercial Code,
although the signatures of the Company and the County on such
reproduction are not original manual signatures.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. Except as otherwise provided
in this Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the County, the Company or the Trustee. Copies of
each notice, certificate or other communication given hereunder
by or to the Company shall be mailed by registered or certified
mail, postage prepaid, to the Trustee; provided, however, that
the effectiveness of any such notice shall not be affected by the
failure to send any such copies. Notices, certificates or other
communications shall be sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 551
Little Rock, Arkansas 72203
Attention: Treasurer
County: Pope County, Arkansas
Pope County Courthouse
100 West Main Street
Russellville, Arkansas 72801
Attention: County Judge
Trustee: Simmons First National Bank
P.O. Box 7009
Pine Bluff, Arkansas 71611
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 11.02. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
Section 11.03. Execution of Counterparts. This
Agreement may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.04. Amounts Remaining in Bond Fund. It is
agreed by the parties hereto that after payment in full of (i)
the Bonds (or the provision for payment thereof having been made
in accordance with the provisions of the Indenture), (ii) the
Administration Expenses of the County, and (iii) all other
amountsrequired to be paid under this Agreement and the
Indenture, any amounts remaining in the Bond Fund shall belong to
and be paid by the Trustee to the Company.
Section 11.05. Amendments, Changes and Modifications.
Except as otherwise provided in this Agreement or the Indenture,
subsequent to the initial issuance of Bonds and prior to payment
in full of the Bonds (or the provision for payment thereof having
been made in accordance with the provisions of the Indenture),
this Agreement may not be effectively amended, changed, modified,
altered or terminated nor any provision waived, without the
written consent of the Trustee which shall not be unreasonably
withheld.
Section 11.06. Governing Law. This Agreement shall be
governed exclusively by and construed in accordance with the
applicable laws of the State of Arkansas.
Section 11.07. Authorized Company Representatives. An
Authorized Company Representative shall act on behalf of the
Company whenever the approval of the Company is required or the
Company requests the County to take some action, and the County
and the Trustee shall be authorized to act on any such approval
or request and neither party hereto shall have any complaint
against the other or against the Trustee as a result of any such
action taken.
Section 11.08. Term of the Agreement. This Agreement
shall be in full force and effect from the date hereof until the
right, title and interest of the Trustee in and to the Trust
Estate (as defined in the Indenture) shall have ceased,
determined and become void in accordance with Article IX of the
Indenture and until all payments required under this Agreement
shall have been made.
Section 11.09. No Personal Liability. No covenant or
agreement contained in this Agreement shall be deemed to be the
covenant or agreement of any official, officer, agent, or
employee of the County in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
Section 11.10. Parties in Interest. This Agreement
shall inure to the benefit of and shall be binding upon the
County, the Company 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 Agreement; provided,
however, that any obligation of the County created by or arising
out of this Agreement shall be payable solely out of the revenues
derived from this 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 Agreement by the County
shallimpose, a pecuniary liability upon the County or a charge
upon the County's general credit or against its taxing powers.
<PAGE>
IN WITNESS WHEREOF, the County and the Company have
caused this 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.
POPE COUNTY, ARKANSAS
ATTEST:
By _____________________________
___________________________ County Judge
County Clerk
(SEAL)
ARKANSAS POWER & LIGHT COMPANY
ATTEST:
By _____________________________
___________________________
_____________________________
___________________________ (title)
(title)
(SEAL)
<PAGE>
EXHIBIT A
DESCRIPTION OF FACILITIES
I. An Undivided Interest in Circulating Water System (Unit
2). Major components of the Circulating Water System include the
following equipment on Unit 2, which together are designed to
supply the cooling water required to remove the heat loads
developed in the main condenser and the main circulating water
pump motor coolers:
(a) Two 50% capacity, vertical mixed flow type, circulating
water pumps;
(b) One hyperbolic, natural draft cooling tower;
(c) Two 100% capacity, positive displacement type, cooling
tower acid pumps;
(d) One chlorine booster pump;
(e) One condenser tube cleaning system including strainer
with motor operated screens, recirculation and
reinjection pumps, collectors and distributors; and
(f) Piping, valves, expansion joints and
instrumentation.
The system is a closed loop system installed in excess of a
simple open loop river-to-river cooling system (used on Unit 1)
so as to avoid excessive thermal discharges to the Dardanelle
Reservoir. Excluded herein are facilities shared with the Unit 1
open loop system, such as intake and discharge canals, and
emergency cooling pond and raw water storage. The undivided
interest in the Circulating Water System included herein
(expressed as a percentage) is 56.29%.
II. Portions of the Gaseous Radwaste Systems (Units 1 and
2). Included herein are those portions of the gaseous Radwaste
Systems which function to abate or control atmospheric pollution
by removing, altering, disposing or storing radioactive
pollutants or contaminants in the gaseous effluent prior to being
released to the environment. Major components of the Unit 1
system include four gas decay tanks, compressors and heat
exchangers, and discharge filters. Major components of the Unit
2 system include three gas decay tanks, compressors, heat
exchanges and discharge filters.
III. Fuel Handling Area Exhaust Systems (Units 1 and 2).
Major components in each system include exhaust fans, prefilters,
HEPA filters, and charcoal absorbers, which function to treat or
filter radioactively charged vapors prior to their release to the
atmosphere.
IV. Sewage System. Major components include septic tanks,
distribution box, sand filter, chlorination equipment,
chlorination contact chamber and associated piping, to process
the sewage waste from the Plant.
V. Portion of the Makeup Water Systems (Units 1 and 2).
Included herein are those portions of the Makeup Water Systems
which function to collect and neutralize chemical waste from each
generating unit before any discharge to the Dardanelle Reservoir.
Major components of each system include a neutralization tank,
pumps, interconnecting piping, valves and controls.
Exhibit B-3(a)
_________________________________________________________________
JEFFERSON COUNTY, ARKANSAS
to
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
_______________
TRUST INDENTURE
_______________
Dated as of June 15, 1994
________________________________________________________________
$9,200,000 Jefferson County, Arkansas Pollution Control Revenue
Refunding Bonds, Series 1994 (Arkansas Power & Light Company
Project)
<PAGE>
TRUST INDENTURE
This TRUST INDENTURE dated as of June 15, 1994, by and
between JEFFERSON COUNTY, ARKANSAS, a political subdivision under
the Constitution and laws of the State of Arkansas (hereinafter
referred to as the "County"), as party of the first part, and
SIMMONS FIRST NATIONAL BANK, an institution organized under and
existing by virtue of the laws of the United States of America
with its principal office, domicile and post office address in
Pine Bluff, Arkansas (hereinafter referred to as the "Trustee"),
as party of the second part;
W I T N E S E T H:
WHEREAS, the County is authorized and empowered under
the laws of the State of Arkansas, including particularly Title
14, Chapter 267 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds 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, certain pollution control facilities
(hereinafter referred to as the "Facilities") have been acquired,
constructed and equipped at the electric generating plant jointly
owned by Arkansas Power & Light Company, an Arkansas corporation
(the "Company") and others located within the boundaries of the
County near Redfield, Arkansas and known as the White Bluff Steam
Electric Station (hereinafter referred to as the "Plant"); and
WHEREAS, pursuant to and in accordance with the
provisions of the Act, the County has heretofore issued and
delivered its Pollution Control Revenue Bonds, Series 1978
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $9,200,000 (the "Prior Bonds"), for the
purpose of financing the cost of acquiring, constructing and
equipping all or part of the Company's interest in the Facilities
(hereinafter referred to as the "Project"), and paying the
expenses of authorizing and issuing the Prior Bonds; and
WHEREAS, the County proposes to issue $9,200,000
aggregate principal amount of its revenue bonds under the Act
(identified in Article I hereof and referred to herein as the
"Series 1994 Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, the Series 1994 Bonds bear interest, mature
and are subject to redemption as hereinafter in this Trust
Indenture set forth in detail; and
WHEREAS, all things necessary to make the Series 1994
Bonds and any Additional Bonds (hereinafter defined) which may be
hereafter issued under this Trust Indenture
(hereinaftercollectively referred to as the "Bonds"), when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the County according to the import thereof, and to constitute
this Trust Indenture a valid assignment and pledge of revenues to
the payment of the principal of and premium, if any, and interest
on the Bonds, in accordance with the provisions hereof, have or
will have been done and performed, and the creation, execution
and delivery of this Trust Indenture and the creation, execution
and issuance of the Bonds, subject to the terms hereof, have in
all respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
TRUST INDENTURE WITNESSETH:
That the County 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 the sum of One Dollar ($1.00), lawful money
of the United States of America, to it duly paid by the Trustee,
at or before the execution and delivery of these presents, and
for other good and valuable considerations, the receipt of which
is hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the County of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the County
hereinafter set forth:
1.
All the rights and interest of the County in and to the
Loan Agreement (as hereinafter defined) (except for the rights of
the County under Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the
Loan Agreement and any rights of the County to receive notices,
certificates, requests, requisitions, directions and other
communications under the Loan Agreement), including, without
limitation, its right to receive the First Mortgage Bonds (as
hereinafter defined); all Revenues (as hereinafter defined) and
the proceeds of all thereof; and the First Mortgage Bonds issued
and delivered by the Company pursuant to the Loan Agreement.
2.
All the rights and interest of the County in and to the
Bond Fund and the Clearing Fund (as hereinafter defined), and all
moneys and investments therein, but subject to the provisions of
this Trust Indenture pertaining thereto, including those
pertaining to the making of disbursements therefrom.
3.
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 County 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 are deemed to have been paid in accordance with
Article IX hereof and funds held pursuant to Section 505 hereof,
which shall be held by the Trustee in accordance with the
provisions of said Article IX or Section 505, as the case may be.
TO HAVE AND TO HOLD all 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
trusts and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth for the equal and proportionate benefit and security of
all owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to lien
of any Bonds over any other Bonds, except insofar as any sinking,
amortization or other fund, or any terms or conditions of
redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds of any
particular series.
PROVIDED, HOWEVER, that if the County shall pay or
cause to be paid to the owners of the Bonds the principal of and
premium, if any, and interest to become due thereon at the times
and in the manner stipulated therein, and if the County shall
keep, perform and observe all and singular the covenants and
promises in the Bonds and in this Trust Indenture expressed as to
be kept, performed and observed by it on its part, all as
provided in and subject to the provisions of Article IX hereof,
then and in that case these presents and the estate and rights
hereby granted, except as otherwise provided in Article IX, shall
cease, determine and be void, and thereupon the Trustee shall
cancel and discharge the lien of this Trust Indenture and execute
and deliver to the County such instruments in writing as shall be
requisite to evidence the discharge hereof pursuant to the
provisions of said Article IX; otherwise this Trust Indenture to
be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured hereunder
areto be issued, authenticated and delivered, and the Trust
Estate (as hereinafter defined) and the other estate and rights
hereby granted, are to be dealt with and disposed of, under, upon
and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the County has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words
and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the
following meanings:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- The Bonds in addition to the
Series 1994 Bonds, which are issued under the provisions of
Section 211 of this Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to the
Loan Agreement, this Indenture and any transaction or event
contemplated by the Loan Agreement or this Indenture including
the compensation and reimbursement of expenses and advances
payable to the Trustee, any Paying Agent, and the Bond Registrar.
"Authorized Company Representative" -- The person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the County and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Senior Vice President, any Vice
President, or the Treasurer.
"Bonds" -- The Series 1994 Bonds and all Additional
Bonds issued by the County pursuant to this Indenture.
"Bond Counsel" -- Any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the County and the Trustee.
"Bond Fund" -- The fund by that name created and
established in Section 501 of this Indenture.
"Bond Registrar" -- The registrar of Bonds named
herein.
"Clearing Fund" -- The fund by that name created and
established in Section 601 of this Indenture.
"Clerk" -- The person holding the office and performing
the duties of the County Clerk of the County.
"Code" -- The Internal Revenue Code of 1954, as
heretofore amended, and the Internal Revenue Code of 1986, as
heretofore or hereafter amended, as applicable.
"Company" -- Arkansas Power & Light Company, an
Arkansas corporation. The Company is a party to the Loan
Agreement, and the reference includes any successor or assignee
pursuant to the provisions thereof.
"Company Mortgage" -- The Mortgage and Deed of Trust
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (Morgan Guaranty Trust Company of New
York, successor) and Henry A. Theis (John W. Flaherty,
successor), and, as to property, real or personal, situated or
being in Missouri, Marvin A. Mueller (The Boatmen's National Bank
of St. Louis, successor), as trustees, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustees" -- The trustees under the
Company Mortgage.
"County" -- Jefferson County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"County Judge" -- The person holding the office and
performing the duties of the County Judge of the County.
"Event of Default" -- Any event of default specified in
Section 1001 hereof.
"Facilities" -- The pollution control facilities at the
Plant which were financed and refinanced, in whole or in part,
with the proceeds of the Prior Bonds, more particularly
identified in the Loan Agreement.
"First Mortgage Bonds" -- The bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.03 of the Loan Agreement.
"Government Securities" -- (a) Direct or fully
guaranteed obligations of the United States of America (including
any such securities issued or held in book-entry form on the
books of the Department of Treasury of the United States of
America); 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 theholders 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.
"holder" or "bondholder" or "owner of the Bonds" -- The
registered owner of any Bond.
"Indenture" -- This Trust Indenture and all amendments
and supplements hereto.
"Loan Agreement" -- The Loan Agreement dated as of June
15, 1994, by and between the County and the Company, and any
amendments and supplements thereto.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to this Indenture.
"Paying Agent" -- Any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Series 1994 Bonds, the Trustee is the
original Paying Agent.
"person" -- Includes natural persons, firms,
associations, corporations and public bodies.
"Plant" -- The electric generating plant jointly owned
by the Company and others located within the boundaries of the
County near Redfield, Arkansas and known as the White Bluff Steam
Electric Station.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series 1978 (Arkansas Power & Light Company Project), in
the aggregate principal amount of $9,200,000.
"Project" -- The interest of the Company in the
Facilities on the date of issuance of the Prior Bonds.
"Record Date" -- With respect to any interest payment
date of the Bonds, the fifteenth day of the calendar month next
preceding such interest payment date.
"Revenues" -- All moneys paid or payable by the Company
to the Trustee for the account of the County in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Sections 5.02 and 9.01 of the
Loan Agreement, and all receipts of the Trustee credited under
the provisions of this Indenture against such payments.
"Series 1994 Bonds" -- The initial issue of Bonds under
and secured by this Indenture in the aggregate principal amount
of $9,200,000.
"Trustee" -- The banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is Simmons First National
Bank, Pine Bluff, Arkansas.
"Trust Estate" -- The property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
Section 102. Use of Words. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond", "owner", "holder" and
"person" shall include the plural, as well as the singular,
number.
ARTICLE II
THE BONDS
Section 201. Authorized Form and Amount of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with this Article. All Bonds issued hereunder
shall be in the form of registered Bonds without coupons. The
total principal amount of Bonds that may be issued is hereby
expressly limited to $9,200,000, except as provided in Sections
208, 211 and 212 hereof.
Section 202. Details of Series 1994 Bonds. The
Series 1994 Bonds (i) shall be designated "Jefferson County,
Arkansas Pollution Control Revenue Refunding Bonds, Series 1994
(Arkansas Power & Light Company Project)," (ii) shall be in the
aggregate principal amount of $9,200,000, (iii) shall be issued
in the denomination of $5,000 each, or any integral multiple
thereof, (iv) shall be numbered consecutively from 1 upwards in
order of issuance according to the records of the Trustee, (v)
shall be dated as hereinafter provided, (vi) shall bear interest
as hereinafter provided, payable semiannually on June 1 and
December 1 of each year commencing December 1, 1994, and (vii)
shall mature, unless sooner redeemed in the manner in this
Indenture set forth, on June 1, 2018.
The Series 1994 Bonds shall bear interest from and
including the date thereof until the principal thereof shall have
become due and payable in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise, at the rate of
six and thirty one-hundredths percent (6.30%) per annum. Overdue
principal of the Series 1994 Bonds shall bear interest at the
rate of six percent (6%) per annum until paid. Overdue
installments of interest shall not bear interest.
Series 1994 Bonds issued before December 1, 1994, shall
be dated as of June 15, 1994, and Series 1994 Bonds issued on or
subsequent to December 1, 1994, shall be dated as of the interest
payment date next preceding the date of authentication and
delivery thereof by the Trustee, unless such date of
authentication and delivery shall be an interest payment date, in
which case they shall be dated as of such date of authentication
and delivery, or unless such date of authentication and delivery
shall be during the period from the Record Date to the next
interest payment date, in which case they shall be dated as of
such interest payment date; provided, however, that if, as shown
by the records of the Trustee, interest on any Bonds surrendered
for transfer or exchange shall be in default, the Bonds issued in
exchange for Bonds surrendered for transfer or exchange shall be
dated as of the date to which interest has been paid in full on
the Bonds surrendered.
The Series 1994 Bonds shall be substantially in the
form set forth in Exhibit A attached hereto with such appropriate
variations, omissions and insertions as are permitted or required
by this Indenture.
Section 203. Payment. The principal of and premium,
if any, on the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office
of the Trustee. The interest on the Bonds shall be payable by
check drawn upon the Trustee and mailed to the registered owners
as of the close of business on the Record Date next preceding the
interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
Section 204. Execution. The Bonds shall be executed
on behalf of the County by the County Judge and the County Clerk
(by their manual or facsimile signatures) and shall have
impressed or imprinted thereon the seal of the County. A
facsimile signature shall have the same force and effect as if
personally signed. In case any officer whose signature or
facsimile of whose signature shall appear on the Bonds shall
cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, the same as if he had remained in
office until delivery.
Section 205. Limited Obligation. The Bonds, together
with interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the revenues pledged to
the Bond Fund, which revenues are hereby pledged and mortgaged
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 and premium, if any, and
interest on the Bonds, and the Paying Agent's fees, except as may
be otherwise expressly authorized in this Indenture. The Bonds
(including premium, if any) and interest thereon shall not
constitute an indebtedness of the County within the meaning of
any constitutional or statutory provision and shall never
constitute an obligation of or a charge against the general
credit or taxing powers of the County.
Section 206. Authentication. Only such Bonds as
shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A attached hereto
duly executed by the Trustee shall be entitled to any right or
benefit under this Indenture. No Bond shall be valid and
obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by the Trustee, and
such Certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of theTrustee, but it shall
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
Section 207. Delivery of the Bonds. The County shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds of any series and deliver said Bonds to
the original purchaser or purchasers thereof as may be directed
hereinafter in this Section 207, in Section 211 hereof, or in any
supplemental indenture.
Prior to the delivery on original issuance by the
Trustee of any authenticated Bonds of any series there shall be
or have been delivered to the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and, in the case of Additional
Bonds, a supplemental indenture by and between the County and the
Trustee setting forth the details concerning such Bonds.
(b) An original duly executed counterpart or a duly
certified copy of the Loan Agreement and, in the case of
Additional Bonds, an amendment of or supplement to the Loan
Agreement, if any.
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the Company
Mortgage creating the series of First Mortgage Bonds to be issued
in respect of such series of Bonds as provided in Section 5.03 of
the Loan Agreement and (ii) such First Mortgage Bonds.
(d) A written order to the Trustee by the County to
authenticate and deliver the Bonds of such series to the original
purchasers thereof upon payment to Trustee, but for the account
of the County, of a sum specified in such order.
(e) A copy, duly certified by the Clerk, of the
proceedings of the governing body of the County authorizing the
issuance of the Bonds.
(f) In the case of any series of Additional Bonds, a
written opinion of Bond Counsel, to the effect that the issuance
of such Bonds and the execution thereof have been duly
authorized, all conditions precedent to the delivery thereof have
been fulfilled, and that the exclusion of the interest on the
Series 1994 Bonds and any Additional Bonds theretofore issued
from gross income for federal income tax purposes will not be
affected by the issuance of the Bonds being issued.
Section 208. Mutilated, Destroyed or Lost Bonds. In
case any Bond issued hereunder shall become mutilated or be
destroyed or lost, the County shall, if not then prohibited by
law, cause to be executed and the Trustee shall authenticate and
delivera new Bond of the same series of like date, number,
maturity and tenor in exchange and substitution for and upon
cancellation of such mutilated Bond, or in lieu of and in
substitution for such Bond destroyed or lost, upon the holder's
paying the reasonable expenses and charges of the County and
Trustee in connection therewith, and, in the case of a Bond
destroyed or lost, his filing with the Trustee evidence
satisfactory to the Company and the Trustee that such Bonds were
destroyed or lost, and of his ownership thereof, and furnishing
the County, the Company and the Trustee with indemnity
satisfactory to them. The Trustee is hereby authorized to
authenticate any such new Bond. In the event any such Bonds
shall have matured, instead of issuing a new Bond, the County may
pay the same without the surrender thereof.
Section 209. Registration and Exchange of Bonds. The
County hereby constitutes and appoints the Trustee as Bond
Registrar of the County, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the County, the Trustee, nor the Bond
Registrar shall be affected by any notice to the contrary but
such registration may be changed as herein provided. All
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Bonds may be transferred on the books of registration
kept by the Trustee by the registered owner in person or by his
duly authorized attorney, upon surrender thereof, together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the County
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations of
the same series with corresponding maturities. The County shall
execute and the Trustee shall authenticate and deliver Bonds
which the bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding. The execution by the
County of any Bond of any denomination shall constitute full and
due authorization of such denomination and the Trustee shall
thereby be authorized to authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds
shall be without charge to the holders of such Bonds, but any
taxes or other governmental charges required to be paid with
respect to the same shall be paid by the holder of the Bond
requesting such transfer or exchange as a condition precedent to
the exercise of such privilege.
The Trustee shall not be required to transfer or
exchange any Bond after the mailing of notice calling such Bond
for redemption has been made and prior to such redemption, nor
during the period of fifteen (15) days next preceding mailing of
a notice of redemption of any Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
Section 210. Cremation and Other Dispositions. All
Bonds surrendered for the purpose of payment or retirement, or
for exchange, or for replacement or payment as provided above, or
for cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the County an appropriate certificate describing the
Bonds involved and the manner of disposition.
Section 211. Additional Bonds. The County, at the
request of the Company and to the extent permitted by law in
effect at the time thereof, may issue from time to time one or
more series of Additional Bonds for the purposes provided in
Section 4.02 of the Loan Agreement. Additional Bonds shall be
secured equally and ratably with the Series 1994 Bonds and any
other Additional Bonds theretofore issued and then outstanding,
except insofar as any sinking, amortization or other fund, or any
terms or conditions of redemption or purchase, established under
this Indenture may afford additional benefit or security for the
Bonds of any particular series. Before any Additional Bonds are
authenticated there shall be delivered to the Trustee the items
required for the issuance of Bonds by Section 207 hereof.
The right to issue Additional Bonds set forth in this
Indenture shall not imply that the County may not issue, and the
County expressly reserves the right to issue, to the extent
permitted by law, obligations under another indenture or
indentures to refund all or any principal amount of all or any
series of Bonds, or any combination thereof, and the provisions
of this Indenture governing the issuance of Additional Bonds
shall not apply thereto.
The proceeds of the issuance and sale of any series of
Additional Bonds, including purchase premium, if any, and accrued
interest, if any, thereon to the date of delivery thereof paid by
the original purchasers thereof, shall be applied simultaneously
with the delivery of such Additional Bonds in the manner provided
in this Indenture and in the supplemental indenture authorizing
such Additional Bonds.
Notwithstanding anything herein to the contrary, no
Additional Bonds shall be issued unless (i) the Loan Agreement is
in effect, and (ii) at the time of issuance there is no Event of
Default (defined in the Loan Agreement) under the Loan Agreement
or Event of Default under this Indenture.
Section 212. Temporary Bonds. Until Bonds in
definitive form are ready for delivery, the County may execute,
and upon the request of the County, the Trustee shall
authenticate and deliver, subject to the provisions, limitations
and conditions set forth herein, one or more Bonds in temporary
form, whether printed, typewritten, lithographed or otherwise
produced, substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the County
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
Section 213. Book Entry System. The Trustee and the
County, at the direction of the Company, may from time to time
enter into, and discontinue, an agreement with a "clearing
agency" registered under Section 17A of the Securities Exchange
Act of 1934, as amended (the "Securities Depository"), which is
the owner of the Bonds of any series, to establish procedures
with respect to the Bonds of such series not inconsistent with
the provisions of this Indenture; provided, however, that any
such agreement may provide:
(a) that such Securities Depository is not required to
present a Bond to the Trustee in order to receive a partial
payment of principal;
(b) that a legend shall appear on each Bond of such
series so long as the Bonds of such series are subject to
such agreement; and
(c) that different provisions for notice to such
Securities Depository may be set forth therein.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption Applicable to Series 1994
Bonds Only. The Series 1994 Bonds shall be subject to redemption
prior to maturity as follows:
(a) The Series 1994 Bonds shall be subject to optional
redemption by the County, 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 either unit of the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
associated with either unit of the Plant is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the construction or operation
thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic
availability of materials, supplies, equipment or labor or
(C) destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of either unit of the
Plant or the Facilities associated with either unit shall
have been condemned or taken by eminent domain; or
(iv) the construction or operation of either unit of
the Plant or the Facilities associated with either unit
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.
(b) The Series 1994 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 as a result of a
failure by the Company to perform or observe any covenant,
agreement or representation contained in the Loan Agreement, the
interest payable on the Series 1994 Bonds is included for federal
income tax purposes in the gross income of thebondholders
thereof, other than any bondholder 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 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. The Series
1994 Bonds shall be redeemed either in whole or in part in such
principal amount that the interest payable on the Series 1994
Bonds remaining outstanding after such redemption would not be
included in the gross income of any bondholder thereof, other
than a bondholder who is a "substantial user" of the Facilities
or a "related person" within the meaning of Section 147(a) of the
Code.
(c) The Series 1994 Bonds shall be subject to optional
redemption by the County, at the direction of the Company, on and
after June 1, 2004, in whole at any time or in part from time to
time (and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable), at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption
Redemption Period Price
June 1, 2004 through May 31, 2005 102%
June 1, 2005 through May 31, 2006 101%
June 1, 2006 and thereafter 100%
The Series 1994 Bonds shall also be subject to optional
redemption by the County, at the direction of the Company, in
whole but not in part, at any time prior to June 1, 2004, at a
redemption price equal to 102% of the principal amount being
redeemed plus accrued interest to the redemption date, if the
Company shall have consolidated with or merged with or into
another corporation, or sold or otherwise transferred all or
substantially all of its assets.
In case a Series 1994 Bond is of a denomination larger
than $5,000, a portion of such Bond ($5,000 or any integral
multiple thereof) may be redeemed if otherwise permitted, but
Series 1994 Bonds shall be redeemed only in the principal amount
of $5,000 or any integral multiple thereof.
Section 302. Notice. Notice of the call for any
redemption, identifying the Bonds or portions thereof being
called and the date on which they shall be presented for payment,
shall be given by the Trustee by first class mail, postage
prepaid, to the registered owner of each such Bond addressed to
such registered owner at his registered address and placed in the
mails not lessthan thirty (30) days nor more than sixty (60) days
prior to the date fixed for redemption; provided, however, that
failure to give such notice by mailing, or any defect therein,
shall not affect the validity of any proceeding for the
redemption of any Bond with respect to which no such failure or
defect has occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at
the option of the County (at the direction of the Company),
unless moneys sufficient to pay the principal of and premium, if
any, and interest on the Bonds to be redeemed shall have been
received by the Trustee prior to the giving of such notice, such
notice shall state that said redemption shall be conditional upon
the receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
Section 303. Redemption Payments. Subject to the
provisions of the last paragraph of Section 302 hereof, 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.
Section 304. Cancellation. All Bonds which have been
redeemed shall not be reissued but shall be canceled and disposed
of by the Trustee in accordance with Section 210 hereof.
Section 305. Partial Redemption of Bonds. Upon
surrender of any Bond for redemption in part only, the County
shall execute and the Trustee shall authenticate and deliver to
the holder thereof a new Bond or Bonds of the same series and the
same maturity, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
Section 401. Payment of Principal, Premium, If Any,
and Interest. The County covenants that it will promptly pay or
cause to be paid the principal of and 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 County hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or 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 or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds) are payable solely from the Revenues, which Revenues are
hereby specifically pledged to 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 County other than the Revenues and the
right, title and interest of the County in the Loan Agreement
(except for the rights of the County under Sections 5.05, 5.06,
5.07, 6.03, and 8.05 of the Loan Agreement and any rights of the
County to receive notices, certificates, requests, requisitions,
directions and other communications under the Loan Agreement) in
the manner and to the extent herein specified. Anything in this
Indenture to the contrary notwithstanding, it is understood that
whenever the County makes any covenants involving financial
commitments, including, without limitation, those in the various
sections of this Article IV, it pledges no funds or assets other
than the Revenues and the right, title and interest of the County
in the Loan Agreement (except for the rights of the County under
Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the Loan Agreement
and any rights of the County to receive notices, certificates,
requests, requisitions, directions and other communications under
the Loan Agreement), the Bond Fund and the Clearing Fund in the
manner and to the extent herein specified, but nothing herein
shall be construed as prohibiting the County from using any other
funds or assets.
Section 402. Performance of Covenants. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all ordinances
pertaining thereto. The County covenants that it is duly
authorized under the Constitution and laws of the State of
Arkansas, 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 itspart for the
issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds
in the hands of the holders and owners thereof are and will be
valid and enforceable obligations of the County according to the
import thereof.
Section 403. Instruments of Further Assurance. The
County covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring,
mortgaging, pledging, assigning and confirming unto the Trustee
the Trust Estate.
Section 404. Recordation and Other Instruments. The
County and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Loan 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 405. Inspection of Project Books. The County
and the Trustee covenant and agree that all books and documents
in their possession relating to the Facilities and the revenues
derived from the Facilities (including the records pertaining to
the Clearing Fund) shall at all reasonable times be open to
inspection by such accountants or other agencies as the other
party may from time to time designate and by the Company.
Section 406. Rights Under Loan Agreement. The Loan
Agreement, a duly executed counterpart of which has been filed
with the Trustee, sets forth the covenants and obligations of the
County and the Company, including provisions that subsequent to
the issuance of Bonds and prior to their payment in full or
provision for payment thereof in accordance with the provisions
hereof the Loan 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
County agrees that the Trustee in its name or in the name of the
County may enforce all rights of the County and all obligations
of the Company under and pursuant to the Loan Agreement, for and
on behalf of the bondholders, whether or not the County is in
default hereunder.
Section 407. Prohibited Activities. The County and
the Trustee covenant that neither of them shall take any action
or suffer or permit any action to be taken or condition to exist
whichcauses 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
County and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
Section 408. No Transfer of First Mortgage Bonds.
The Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
Section 409. Voting of First Mortgage Bonds. The
Trustee shall, as the holder of the First Mortgage Bonds, attend
such meeting or meetings of bondholders under the Company
Mortgage or, at its option, deliver its proxy in connection
therewith, as relate 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 first mortgage bonds issued under the
Company Mortgage is sought without a meeting, the Trustee shall
vote as the holder of the First Mortgage 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 first 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 which is
correlative to any amendment or modification of this Indenture
referred to in Section 1202 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 1202,
of bondholders which would be required under said Section 1202
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section 409 shall be binding upon the County
and the bondholders.
Section 410. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustees in accordance with the provisions of Section
5.03(d) of the Loan Agreement.
Section 411. Notice to Company Mortgage Trustees. In
the event that a payment on the First Mortgage Bonds shall
havebecome due and payable and shall not have been fully paid,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustees specifying the amount of funds required to make
such payment. In the event that any Bonds are to be redeemed
pursuant to any provisions of this Indenture requiring mandatory
redemption of Bonds of any series (other than at the direction of
the Company), except for provisions which establish sinking fund
redemption requirements, 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 First Mortgage Bonds or on the rights of
the Trustee or of the bondholders.
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of Bond Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the County to be designated "Jefferson
County, Arkansas Pollution Control Revenue Refunding Bond Fund
- -Arkansas Power & Light Company Project".
Section 502. Payments Into Bond Fund. There shall be
deposited into the Bond Fund as and when received:
(a) All accrued interest received at the time of the
issuance and delivery of the Bonds;
(b) Amounts transferred to the Bond Fund pursuant to
the provisions of Section 604 hereof;
(c) All Revenues; and
(d) All moneys received by the Trustee under and
pursuant to any of the provisions of the Loan
Agreement or this Indenture which are not directed
to be paid into a fund (or held) other than the
Bond Fund.
Section 503. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 508 and 1102 hereof, moneys in the
Bond Fund shall be used solely for the payment of the principal
of and premium, if any, and interest on the Bonds.
Section 504. Withdrawals from Bond Fund. The Bond
Fund shall be in the name of the County, designated as set forth
in Section 501, and the County hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient
funds to pay the principal of and premium, if any, and interest
on the Bonds at maturity and redemption prior to maturity and to
use such funds for the purpose of paying principal, premium, if
any, and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
Trustee hereby accepts.
Section 505. Non-Presentment of Bonds. In the event
any Bonds shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Trustee for that purpose, or left in trust if
previously so deposited, funds sufficient to pay the principal
thereof, and premium, if any, together with all interest unpaid
and due thereon, to the due date thereof, for the benefit of the
holder thereof, all liability of the County to the holder thereof
for thepayment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
Section 506. Administration Expenses. It is
understood and agreed that pursuant to the provisions of Section
5.05 of the Loan Agreement, the Company agrees to pay the
Administration Expenses of the County. All such payments under
the Loan Agreement which are received by the Trustee shall not be
paid into the Bond Fund, but shall be segregated by the Trustee
and expended solely for the purpose for which such payments are
received.
Section 507. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund or the Clearing Fund 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 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 IX 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 provisions of
the Loan Agreement calling for the Trustee to hold, administer
and disburse the same in accordance with the specific provisions
of the Loan Agreement shall be held, administered and disbursed
pursuant to such provisions, and where required by the provisions
of the Loan Agreement the Trustee shall set the same aside in a
separate account. The County agrees that if it shall receive any
moneys pursuant to applicable provisions of the Loan 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 Loan Agreement pursuant to
which the County may have received the same. Furthermore, if for
any reason the Loan Agreement ceases to be in force and effect
while any Bonds are outstanding, the County 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 Loan Agreement that would be
applicable if the Loan 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 County's obligations under this
Indenture.
Section 508. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts as specified in the Loan Agreement, whether such excess
amounts be in the Bond Fund or in special accounts.
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. Creation of Clearing Fund. There is
hereby created and ordered to be established with the Trustee a
special account of the County to be designated "Jefferson County,
Arkansas Pollution Control Revenue Refunding Bond Clearing Fund
- -Arkansas Power & Light Company Project."
Section 602. Payments into Clearing Fund. The
proceeds from the issuance and sale of each series of Bonds,
other than accrued interest, if any, on such Bonds to the date of
delivery thereof paid by the original purchaser or purchasers
thereof, shall be deposited into the Clearing Fund established in
respect of such series of Bonds.
Section 603. Disbursements from Clearing Fund.
Moneys in the Clearing Fund shall be disbursed by the Trustee to
the trustee for the Prior Bonds to pay the principal of and
premium, if any, and interest on the Prior Bonds (in the case of
the Series 1994 Bonds) or to pay the principal of and premium, if
any, and interest on all or any portion of any series of Bonds
then being refunded (in the case of Additional Bonds) on the
applicable dates of redemption thereof.
Section 604. Balance in Clearing Fund. Upon the
redemption of the Prior Bonds or all or any portion of any series
of Bonds then being refunded, any balance remaining in the
Clearing Fund in respect thereof (except for amounts retained by
the Trustee to pay such Bonds) shall be transferred by the
Trustee into the Bond Fund; provided, however, no amount shall be
transferred into the Bond Fund unless the Trustee is furnished
with an opinion of Bond Counsel to the effect that such use is
lawful under the Act and will not adversely affect the exclusion
of interest on any of the Bonds from gross income for purposes of
federal income taxation.
ARTICLE VII
INVESTMENTS
Section 701. Investment of Moneys. (a) Moneys held
for the credit of the Clearing Fund shall, upon 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 any agency or instrumentality 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; and (viii) 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 rankings 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.
(b) Moneys held for the credit of any other fund or
account, including, without limitation, the Bond Fund, shall to
the extent practicable be invested and reinvested in Government
Securities which will mature, or which will be subject to
redemption at the option of the holder, not later than the date
or dates on which the money held for credit of the particular
fund shall be required for the purposes intended. The Trustee
shall soinvest and reinvest pursuant to instructions from the
Authorized Company Representative.
(c) 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 the fund or account and any
loss shall be charged to the fund or account.
Section 702. Arbitrage Law Requirements. In
compliance with the provisions of Section 148 of the Code and
regulations thereunder, all investments and reinvestments made
under this Article VII shall be subject to the following:
(a) In the event that the County or the Company is of
the opinion that it is necessary or advisable to restrict or
limit the yield on the investment of any moneys held in the
Clearing Fund, the Bond Fund or any other fund in order to avoid
the Bonds being considered "arbitrage bonds" within the meaning
of Section 148 of the Code, or any proposed, temporary or final
regulations thereunder as such regulations may apply to
obligations issued as of the date of original issuance and
delivery of the Bonds, the County or the Company may issue to the
Trustee a written certificate to such effect together with
appropriate written instructions, in which event the Trustee
shall take such action as is necessary so as to restrict or limit
the yield on such investment in accordance with such certificate
and instructions, irrespective of whether the Trustee shares such
opinion.
(b) The Trustee shall establish and maintain within
the Bond Fund, the Clearing Fund or any other fund, in respect of
each series of Bonds issued hereunder, a separate account into
which shall be deposited as and when received any amounts which
are subject or could be subject to rebate to the United States
under Section 148(f) of the Code, which amounts shall be held in
such separate accounts until paid to the United States pursuant
to said Section or until the Trustee determines that no such
payment is required.
(c) The County and the Trustee shall not make or agree
to make any payments or participate in any non-arms-length
transaction which would have the effect of reducing the earnings
on investments, thereby reducing the amount required to be
rebated to the United States under Section 148(f) of the Code and
regulations thereunder.
(d) The Company has undertaken in the Loan Agreement
to make the determinations required by paragraph (b) of this
Section 702 and to provide statements to the Trustee to the
effect that all actions with respect to the Bonds required by
Section 148(f) of the Code has been taken. The Trustee shall be
entitled to rely uponsuch determinations and statements as
sufficient evidence of the facts therein contained.
ARTICLE VIII
RIGHTS OF THE COMPANY
Section 801. Rights of Company Under Loan Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Loan Agreement and an
Event of Default hereunder shall not constitute an "Event of
Default" under the Loan Agreement unless by the terms of the Loan
Agreement it constitutes an "Event of Default" thereunder.
Section 802. Enforcement of Rights and Obligations.
The County and the Trustee agree that the Company in its own name
or in the name of the County may enforce all of the rights of the
County, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
ARTICLE IX
DISCHARGE OF LIEN
Section 901. Discharge of Lien. If the County shall
pay or cause to be paid to the holders and owners of the Bonds
the principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the County 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 all other sums payable
hereunder by the County, then these presents and the estate and
rights hereby granted shall cease, determine and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the County such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the County the estate hereby conveyed, and assign and
deliver to the County 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 premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning
of this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that
the Trustee shall have received an opinion of Bond Counsel to the
effect that such deposit will not affect the exclusion of the
interest on any of the Bonds from gross income for purposes of
federal income taxation or cause any of the Bonds to be treated
as arbitrage bonds within the meaning of Section 148(a) of the
Code) maturing as to principal and interest in such amounts and
at such times as will provide sufficient moneys to make such
payment when due, and all necessary and proper fees, compensation
and expenses of the Trustee and any Paying Agent pertaining to
the Bonds with respect to which such deposit is made and all
other liabilities of the Company under the Loan Agreement shall
have been paid or the payment thereof provided for to the
satisfaction of the Trustee. No deposit under (b) above shall
constitute such discharge and satisfaction until the Company
shall have irrevocably notified the Trustee of the date for
payment of such Bond either at maturity or on a date on which
such Bond may be redeemed in accordance with the provisions
hereof and notice of such redemption shall have been given or
irrevocable provisions shall have been made for the giving of
such notice.
The County or the Company may at any time surrender to
the Trustee for cancellation by it any Bonds previously
authenticated and delivered hereunder, which the County 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 X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001. Events of Default. Each of the
following events shall constitute and is referred to in this
Indenture as an "Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured and
outstanding, whether at the stated maturity thereof, or upon
unconditional proceedings for redemption thereof, or upon the
maturity thereof by acceleration;
(c) an "Event of Default" as such term is defined in
Section 8.01 of the Loan Agreement; or
(d) default in the payment of any other amount
required to be paid under this Indenture or the performance or
observance of any other of the covenants, agreements or
conditions contained in this Indenture, or in the Bonds issued
under this Indenture, and continuance thereof for a period of
ninety (90) days after written notice specifying such failure and
requesting that it be remedied, shall have been given to the
County and the Company by the Trustee, which may give such notice
in its discretion and shall give such notice at the written
request of Bondholders of not less than 10% in aggregate
principal amount of the Bonds then outstanding, unless the
Trustee, or the Trustee and bondholders of an aggregate principal
amount of Bonds not less than the aggregate principal amount of
Bonds the bondholders 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 bondholders of such principal amount of
Bonds, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is instituted by
the County, or the Company on behalf of the County within such
period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (d)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
Section 1002. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a) or
(b)of the first paragraph of Section 1001 hereof, 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 County and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 302 hereof.
Upon the occurrence and continuance of an Event of
Default described in clause (c) of the first paragraph of Section
1001 hereof, and further upon the condition that, in accordance
with the terms of the Company Mortgage, the First Mortgage 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 County and the Company, and notice to bondholders
in the same manner as a notice of redemption under Section 302
hereof.
Section 1003. Other Remedies; Rights of Bondholders.
Upon the occurrence and continuance of an Event of Default, the
Trustee may, in addition or as an alternative, pursue any
available remedy by suit at law or in equity to enforce the
payment of the principal of and premium, if any, and interest on
the Bonds then outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it
shall have been requested so to do by the holders of twenty-five
percent (25%) in aggregate principal amount of Bonds outstanding
hereunder and shall have been indemnified as provided in Section
1101 hereof, the Trustee shall be obligated to exercise such one
or more of the rights and powers conferred upon it by this
Section as the Trustee, being advised by counsel, shall deem most
expedient in the interests of the bondholders.
No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee (or to the bondholders) is intended to
be exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power
accruing upon any default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any
such default or Event of Default or acquiescence therein; and
every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the bondholders, shall extend to
orshall affect any subsequent default or Event of Default or
shall impair any rights or remedies consequent thereon.
Section 1004. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding the holders of a majority in aggregate principal
amount of Bonds outstanding hereunder shall have the right, at
any time, by an instrument or instruments in writing executed and
delivered to the Trustee, to direct the method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture, or for
the appointment of a receiver or any other proceeding hereunder;
provided that such direction shall not be otherwise than in
accordance with the provisions of law and of this Indenture.
Section 1005. Appointment of Receiver. Upon the
occurrence and continuance of an Event of Default, and upon the
filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the bondholders under
this Indenture, the Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the Trust
Estate and of the tolls, rents, revenues, issues, earnings,
income, products and profits thereof, pending such proceedings
with such powers as the court making such appointment shall
confer.
Section 1006. Waiver. In case of an Event of Default
on the part of the County, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the County nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
County, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Arkansas.
Section 1007. Application of Moneys. Available moneys
remaining after discharge of costs, charges and liens prior to
this Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto
of all installments of interest then due, in the order of the
maturity of the installments of such interest, and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the
amounts due on such installment, to the persons entitled thereto,
without any discrimination or privilege;
Second: To the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds which shall have
become due (other than Bonds called for redemption for the
payment of which moneys are held pursuant to the provisions of
this Indenture), in the order of their due dates, with interest
on such Bonds from the respective dates upon which they become
due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the amount of
principal due on such date, to the persons entitled thereto
without any discrimination or privilege of any Bond over any
other Bond and without preference or priority of principal over
interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of Bonds, all in
accordance with the provisions of Article V of this Indenture.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid upon
the Bonds, without preference or priority of principal over
interest or of interest over principal, or of any Bond over any
other Bond, ratably, according to the amounts due respectively
for principal and interest, to the person entitled thereto
without discrimination or privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if acceleration of the maturity of
the Bonds by reason of an Event of Default shall thereafter have
been rescinded and annulled under the provisions of this Article
then, subject to the provisions of paragraph (b) of this Section
in the event that the principal of all the Bonds shall later
become due and payable, the moneys shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee
pursuant to the provisions of this Section, such moneys shall be
applied by it at such times, and from time to time, as it shall
determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys
becoming available for such application in the future. Whenever
the Trustee shall apply such funds, it shall fix the date (which
shall be an interest payment date unless it shall deem another
date more suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be paid on
such dates shall cease to accrue. The Trustee shall give such
notice as it may deem appropriate of the deposit with it of any
such moneys and of the fixing of any such date and shall not be
required to make payment to the holder of any Bond until such
Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid.
Section 1008. Remedies Vested in Trustee. All rights
of action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the
equal benefit of the holders of the outstanding Bonds.
Section 1009. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless a default has occurred of which the Trustee has been
notified as provided in subsection (g) of Section 1101, or of
which by said subsection it is deemed to have notice, nor unless
such default shall have become an Event of Default and the
holders of twenty-five percent (25%) in aggregate principal
amount of Bonds outstanding hereunder shall have made written
request to the Trustee and shall have offered it reasonable
opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in its
own name, nor unless also they have offered to the Trustee
indemnity as provided in Section 1101 nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every such case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by his or their
action or to enforce any right hereunder except in the manner
herein provided, and that all proceedings at law or in equity
shall be instituted, held and maintained in the manner herein
provided for the equal benefit of the holders of all Bonds
outstanding hereunder. Nothing in this Indenture contained
shall, however, affect or impair the right of any bondholders to
enforce the payment of the principal of and interest on any Bonds
at and after the maturity thereof, or the obligation of the
County to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time
and place in said Bonds expressed.
Section 1010. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver or otherwise, and
suchproceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the County and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies
and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
Section 1011. Waivers of Events of Default. The
provisions of 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 the first paragraph of Section 1001 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 AND PAYING AGENTS
Section 1101. Acceptance of Trusts. The Trustee
hereby accepts the trust imposed upon it by this Indenture, and
agrees to perform said trust (i) except during the continuance of
an Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or through
attorneys, agents, receivers or employees, and shall be entitled
to advice of counsel concerning all matters of trusts hereof and
its duties hereunder, and may in all cases pay reasonable
compensation to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of
any attorney, surveyor, engineer or accountant selected by it in
the exercise of reasonable care, or, if selected or retained by
the County prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (g) of this
Section 1101, or of which by said subsection the Trustee is
deemed to have notice, approved by the Trustee in the exercise of
such care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance with
any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any insurance
moneys, or for the validity of the execution by the County of
this Indenture or of any supplemental indentures or instrument of
further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby, or for
the value of the title of the property herein conveyed or
otherwise as to the maintenance of the security hereof; except
that in the event the Trustee enters into possession of a part or
all of the property herein conveyed pursuant to any provision of
this Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions and agreements aforesaid as to the condition of the
property herein conveyed.
(c) The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it, in the
exercise of reasonable care, to be genuine and correct and to
have been signed or sent by the proper person or persons. Any
action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of the owner of any Bond secured
hereby, shall be conclusive and binding upon all future owners of
the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate of the County signed by its County Judge and attested
by the Clerk of the County, as sufficient evidence of the facts
therein contained and prior to the occurrence of a default of
which it has been notified as provided in subsection (g) of this
Section 1101, or of which by that subsection it is deemed to have
notice, and shall also be at liberty to accept a similar
certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its
discretion, at the reasonable expense of the County, in every
case secure such further evidence as it may think necessary or
advisable but shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Clerk of the County under
its seal to the effect that a resolution or ordinance in the form
therein set forth has been adopted by the County as conclusive
evidence that such resolution or ordinance has been duly adopted,
and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty of
the Trustee.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except a
default under clause (a) or (b) of the first paragraph of Section
1001 hereof concerning which the Trustee shall be deemed to have
notice) unless the Trustee shall be specifically notified in
writing of such default by the County or by the holders of at
least ten percent (10%) in aggregate principal amount of Bonds
outstanding hereunder and all notices or other instruments
required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered to the office of the
Trustee, and in the absence of such notice so delivered, the
Trustee may conclusively assume there is no such default except
as aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfillment
of contracts during any period in which it may be in the
possession of ormanaging the real and tangible personal property
as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to
inspect any and all of the property herein conveyed, including
all books, papers and records of the County pertaining to the
Facilities and the Bonds, and to take such memoranda from and in
regard thereto as may be desired, provided, however, that nothing
contained in this subsection or in any other provision of this
Indenture shall be construed to entitle the above named persons
to any information or inspection involving the confidential
know-how of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals, or
other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, deemed desirable for the purpose of
establishing the right of the County to the authentication of any
Bonds, the withdrawal of any cash, the release of any property,
or the taking of any other action by the Trustee.
(l) Before taking such action hereunder, the Trustee
may require that it be furnished an indemnity bond satisfactory
to it for the reimbursement to it of all expenses to which it may
be put and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so taken
by the Trustee.
Section 1102. Fees, Charges and Expenses of Trustee
and Paying Agents. The Trustee and any Paying Agent shall be
entitled to payment and/or reimbursement for reasonable fees for
services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred in and
about the execution of the trusts created by this Indenture. The
County has made provisions in the Loan Agreement for the payment
of such Administration Expenses and reference is hereby made to
the Loan Agreement for the provisions so made. In this regard,
it is understood that the County pledges no funds or revenues
other than those derived from and the avails of the Trust Estate
to the payment of any obligation of the County set forth in this
Indenture, including the obligations set forth in this Section
1102, but nothing herein shall be construed as prohibiting
theCounty from using any other funds and revenues for the payment
of any of its obligations under this Indenture. Upon an Event of
Default, but only upon an Event of Default, the Trustee and the
Paying Agents shall have a first lien with right of payment prior
to payment on account of principal or interest of any Bond issued
hereunder upon the Trust Estate for such reasonable and necessary
advances, fees, costs and expenses incurred by them respectively.
Section 1103. Notice to Bondholders of Default. The
Trustee shall be required to make demand upon and give notice to
the Company and each registered owner of Bonds then outstanding
as follows:
(a) If the Company shall fail to make any installment
payment under the Loan Agreement on the day such payment is due
and payable, the Trustee shall give notice to and make demand
upon the Company on the next succeeding business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 1101(g) deemed to have or
is given notice, the Trustee shall promptly give notice to the
Company and to bondholders.
Section 1104. Intervention by Trustee. In any
judicial proceeding to which the County is a party and which in
the opinion of the Trustee and its counsel has a substantial
bearing on the interests of holders of Bonds issued hereunder,
the Trustee may intervene on behalf of bondholders and shall do
so if requested in writing by the holders of at least ten percent
(10%) of the aggregate principal amount of Bonds outstanding
hereunder. The rights and obligations of the Trustee under this
Section 1104 are subject to the approval of the court having
jurisdiction in the premises.
Section 1105. Merger or Consolidation of Trustee. Any
bank or trust company to which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which it is a party, ipso
facto, shall be and become successor trustee hereunder and vested
with all of the title to the whole property or Trust Estate and
all the trusts, powers, discretions, immunities, privileges, and
all other matters as was its predecessor, without the execution
or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that
such successor trustee shall have capital and surplus of at least
$10,000,000.
Section 1106. Resignation by Trustee. The Trustee and
any successor trustee may at any time resign from the trusts
hereby created by giving thirty (30) days written notice to the
County andto the Company, and such resignation shall take effect
at the end of such thirty (30) days, or upon the earlier
appointment of a successor trustee by the bondholders or by the
County. Such notice may be served personally or sent by
registered mail.
Section 1107. Removal of Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee and to the County, and signed by
the holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
Section 1108. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by the court, a successor
may be appointed by the holders of a majority in aggregate
principal amount of Bonds outstanding hereunder, by an instrument
or concurrent instruments in writing signed by such holders, or
by their attorneys in fact, duly authorized; provided,
nevertheless, that in case of such vacancy the County by an
instrument executed and signed by its County Judge and attested
by its Clerk under its seal, shall appoint a temporary trustee to
fill such vacancy until a successor trustee shall be appointed by
the bondholders in the manner above provided; and any such
temporary trustee so appointed by the County shall immediately
and without further act be superseded by the trustee so appointed
by such bondholders. Every such temporary trustee and every such
successor trustee shall be a trust company or bank in good
standing, having capital and surplus of not less than
$10,000,000.
Section 1109. Concerning Any Successor Trustee. Every
successor or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the County
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the County or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the County be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the County. The
resignation of any trustee and the instrument or
instrumentsremoving any trustee and appointing a successor
hereunder, together with all other instruments provided for in
this Article shall, at the expense of the County, be forthwith
filed and/or recorded by the successor trustee in each recording
office where the Indenture shall have been filed and/or recorded.
Section 1110. Reliance Upon Instruments. The
resolutions, opinions, certificates and other instruments
provided for in this Indenture may be accepted and relied upon by
the Trustee as conclusive evidence of the facts and conclusions
stated therein and shall be full warrant, protection and
authority to the Trustee for its actions taken hereunder.
Section 1111. Appointment of Co-Trustee. The County
and the Trustee shall have power to appoint and upon the request
of the Trustee the County shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another corporation or one or more persons approved by
the Trustee, and satisfactory to the Company so long as there is
no termination of the interest of the Company by virtue of an
event of default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the County shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the County be required
by separate trustee or co-trustee so appointed for more fully and
certainly vesting in and confirming to him or to it 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
County. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights con
ferred upon the Trustee in respect of the custody of
all money and securities pledged or deposited
hereunder, shall be exercised solely by the Trustee;
and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or
co-trustee.
Every instrument, other than this Indenture, appointing
any such co-trustee or separate trustee, shall refer to
thisIndenture and the conditions of this Article XI expressed,
and upon the acceptance in writing by such separate trustee or
co-trustee, he, they or it shall be vested with the estate or
property specified in such instrument, jointly with the Trustee
(except insofar as local law makes it necessary for any separate
trustee to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
Section 1112. Designation and Succession of Paying
Agents. The Trustee and any other banks or trust companies, if
any, designated as Paying Agent or Paying Agents in any
supplemental indenture providing for the issuance of Additional
Bonds as provided in Section 211 hereof or in an instrument
appointing a successor Trustee, shall be the Paying Agent or
Paying Agents for the applicable series of Bonds.
Any bank or trust company with which or into which any
Paying Agent may be merged or consolidated, or to which the
assets and business of such Paying Agent may be sold, shall be
deemed the successor of such Paying Agent for the purposes of
this Indenture. If the position of Paying Agent shall become
vacant for any reason, the County shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the County shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective
provisions in the performance of their duties hereunder as are
specified in Section 1101 hereof with respect to the Trustee
insofar as such provisions may be applicable.
Section 1113. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Paying Agent, and the Bond
Registrar and in any other combination of such capacities, to the
extent permitted by law.
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without
Bondholder Consent. The County and the Trustee may, from time to
time and at any time, without the consent of or notice to the
bondholders, enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the County in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the County which are not
contrary to or inconsistent with this Indenture as
theretofore in effect;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the Revenues
of the County from the Loan Agreement or of any other
moneys, securities or funds;
(e) to authorize the issuance and sale of one or more
series of Additional Bonds;
(f) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(g) to provide for the registration and registration
of transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(h) 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 clause (a), (b), (c), (d), (e) or (f) of
Section 1202 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
Section 1202. Supplemental Indentures Requiring
Bondholder Consent. Subject to the terms and provisions
contained in this Section, and not otherwise, the holders of not
less than a majority in aggregate principal amount of the Bonds
then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the County for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental
indenture; provided, however, that nothing herein contained shall
permit, or be construed as permitting, unless approved by the
holders of all Bonds then outstanding (a) an extension of the
maturity (or mandatory sinking fund or other mandatory redemption
date) of the principal of or the interest on any Bond issued
hereunder, or (b) a reduction in the principal amount of or
redemption premium or rate of interest on any Bond issued
hereunder, or (c) 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 hereinbefore expressly permitted, or
(d) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds, or (e) a reduction in the aggregate principal
amount of the Bonds required for consent to such supplemental
indenture, or (f) depriving the holder of any Bond then
outstanding of the lien hereby created on the Trust Estate.
Nothing herein contained, however, shall be construed as making
necessary the approval of bondholders of the execution of any
supplemental indenture as provided in Section 1201 of this
Article.
If, at any time the County shall request the Trustee to
enter into any supplemental indenture for any of the purposes of
this Section, the Trustee shall, at the expense of the County,
cause notice of the proposed execution of such supplemental
indenture to be mailed by first class mail to each registered
owner of the Bonds. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal corporate trust
office of the Trustee for inspection by bondholders. The Trustee
shall not, however, be subject to any liability to any bondholder
by reason of its failure to mail such notice, and any such
failure shall not affect the validity of such supplemental
indenture when consented to and approved as provided in this
Section. If the holders of not less than a majority in aggregate
principal amount of the Bonds outstanding at the time of the
execution of any such supplemental indenture shall have consented
to and approved the execution thereof as herein provided, no
holder of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution
thereof, or to enjoin or restrain the Trustee or the County from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution ofany such supplemental
indenture, this Indenture shall be deemed to be modified and
amended in accordance therewith.
Section 1203. Consent of Company. Anything herein to
the contrary notwithstanding, a supplemental indenture under this
Article XII shall not become effective unless and until the
Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
Section 1204. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, a supplemental indenture
under this Article XII shall not become effective unless and
until the Trustee shall have received an opinion of Bond Counsel
to the effect that such supplemental indenture will not affect
the exclusion of interest on the Bonds from gross income for
purposes of federal income taxation.
ARTICLE XIII
AMENDMENT TO LOAN AGREEMENT
Section 1301. Amendments Not Requiring Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Loan
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein, which in
the reasonable judgment of the Trustee is not to the prejudice of
the Trustee or the holders of the Bonds. The Trustee shall not
consent to any other amendment, change or modification of the
Loan Agreement without the approval or consent of the holders of
not less than a majority in aggregate principal amount of the
Bonds at the time outstanding, evidenced in the manner provided
in Section 1401 hereof; provided the Trustee shall not, without
the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 1401
hereof, consent to any amendment which would change the
obligations of the Company under Section 5.02 or 5.03 of the Loan
Agreement or the nature of the obligations of the Company on the
First Mortgage Bonds as provided in Section 5.03 of the Loan
Agreement.
Section 1302. Amendments Requiring Consent of
Bondholders. If at any time the County or the Company shall
request the Trustee's consent to a proposed amendment, change or
modification requiring bondholder approval under Section 1301,
the Trustee, shall, at the expense of the requesting party, cause
notice of such proposed amendment, change or modification to the
Loan Agreement to be mailed in the same manner as provided by
Section 1202 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file in the principal
office of the Trustee for inspection by any interested
bondholder. The Trustee shall not, however, be subject to any
liability to any bondholder by reason of its failure to publish
or mail such notice, and any such failure shall not affect the
validity of such amendment, change or modification when consented
to by the Trustee in the manner hereinabove provided.
Section 1303. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, any amendment to the Loan
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
ARTICLE XIV
MISCELLANEOUS
Section 1401. Consents, etc. of Bondholders. Any
request, direction, objection or other instrument required by
this Indenture to be signed and executed by the bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds,
if made in the following manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing
such writing acknowledged before him the execution thereof, or by
an affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and the
date of holding the same shall be proved by the registration
books of the County maintained by the Trustee as Bond Registrar.
Section 1402. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing expressed
or mentioned in or to be implied from this Indenture, or the
Bonds issued hereunder, is intended or shall be construed to give
to any person or company other than the parties hereto, the
Company, and the holders of the Bonds secured by this Indenture
any legal or equitable rights, remedy or claim under or in
respect to this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof being intended to be
and being for the sole exclusive benefit of the parties hereto,
the Company, and the holders of the Bonds hereby secured as
herein provided.
Section 1403. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other
provision or provisionsherein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
Section 1404. Notices. Except as otherwise provided
in this Indenture, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the County, the Company, the Trustee and any Paying
Agent. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 551
Little Rock, Arkansas 72203
Attention: Treasurer
County: Jefferson County, Arkansas
Jefferson County Courthouse
Barraque & Main Street
Pine Bluff, Arkansas 71601
Attention: County Judge
Trustee: Simmons First National Bank
P.O. Box 7009
Pine Bluff, Arkansas 71611
Attention: Corporate Trust Department
Any Paying
Agent other
than the
Trustee: At the address designated to the
County and the Trustee.
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 1405. Applicable Provisions of Law. This
Indenture shall be considered to have been executed in the State
of Arkansas and it is the intention of the parties that the
substantive law of the State of Arkansas govern as to all
questions of interpretation, validity and effect.
Section 1406. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
Section 1407. Successors and Assigns. All the
covenants, stipulations, provisions, agreements, rights, remedies
and claims of the parties hereto in this Indenture contained
shall bind and inure to the benefit of their successors and
assigns.
Section 1408. Captions. The captions or headings in
this Indenture are for convenience only and in no way define,
limit or describe the scope or intent of any provisions or
sections of this Indenture.
Section 1409. Photocopies and Reproductions. A
photocopy or other reproduction of this Indenture may be filed as
a financing statement pursuant to the Uniform Commercial Code,
although the signatures of the County and the Trustee on such
reproduction are not original manual signatures.
Section 1410. Bonds Owned by the County or the
Company. In determining whether bondholders of the requisite
aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which
are owned by the County or the Company or by any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and
deemed not to be outstanding for the purpose of any such
determination, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Bonds which the Trustee knows
are so owned shall be so disregarded. Bonds so owned which have
been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the
pledgee is not the County or the Company or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company. In case of a dispute
as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
Section 1411. 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 be
a legal holiday or a day on which banking institutions in the
city in which is located the principal corporate trust office of
the Trustee are authorized by law to remain closed, such payment
may be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest shall accrue for the period after
such nominal date.
<PAGE>
IN WITNESS WHEREOF, the County has caused these
presents to be signed in its name and behalf by its County Judge
and its corporate seal to be hereunto affixed and attested by its
County Clerk, and, to evidence its acceptance of the trust hereby
created, the Trustee has caused these presents to be signed in
its behalf by its duly authorized officers and its corporate seal
to be hereto affixed.
JEFFERSON COUNTY, ARKANSAS
By ___________________________
ATTEST: County Judge
______________________________
County Clerk
(SEAL)
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
TRUSTEE
By _____________________________
_____________________________
ATTEST: (title)
______________________________
______________________________
(title)
(SEAL)
<PAGE>
EXHIBIT A
Form of Series 1994 Bond
No. ____ $_______
UNITED STATES OF AMERICA
STATE OF ARKANSAS
JEFFERSON COUNTY, ARKANSAS
POLLUTION CONTROL REVENUE REFUNDING BOND, SERIES 1994
(ARKANSAS POWER & LIGHT COMPANY PROJECT)
Date of Bond: __________ Maturity Date: June 1, 2018
Interest Rate: 6.30% per annum CUSIP
__________________________
Registered Owner:
_________________________________________________
Principal Amount: _________________________________________
DOLLARS
KNOW ALL MEN BY THESE PRESENTS:
That Jefferson County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas (the "County"), for value received, promises to pay to
the registered owner shown above, or registered assigns, but
solely from the source and in the manner hereinafter set forth,
on the maturity date shown above, the principal amount shown
above and in like manner to pay interest on said amount from the
date hereof shown above until such principal amount becomes due
and payable, at the rate per annum shown above, semiannually on
June 1 and December 1 of each year commencing on the June 1 or
December 1 next succeeding the date of this Bond, and to pay
interest on overdue principal at the rate of six percent (6%) per
annum until paid, except as the provisions hereinafter set forth
with respect to redemption of this Bond prior to maturity may
become applicable hereto. The principal of and premium, if any,
on this Bond are payable in lawful money of the United States of
America upon the presentation and surrender hereof at the
principal corporate trust office of Simmons First National Bank,
Pine Bluff, Arkansas, or its successor or successors, as Trustee
(the "Trustee"), and interest on this Bond is payable in like
money to the registered owner hereof by check drawn upon the
Trustee and mailed to the person in whose name this Bond is
registered at the close of business on the fifteenth day of the
calendar month next preceding such interest payment date, at his
address as it appears on the bond registration books of the
County kept by the Trustee.
This Bond, designated "Jefferson County, Arkansas
Pollution Control Revenue Refunding Bond, Series 1994 (Arkansas
Power & Light Company Project)," is one of a series of Bonds in
the aggregate principal amount of Nine Million Two Hundred
Thousand Dollars ($9,200,000) (the "Bonds"), issued for the
purpose of refunding the County's Pollution Control Revenue
Bonds, Series 1978 (Arkansas Power & Light Company Project),
which were issued tofinance the cost of acquiring, constructing
and equipping an undivided interest (the "Project") in certain
pollution control facilities (the "Facilities") at the electric
generating plant of Arkansas Power & Light Company, an Arkansas
corporation (the "Company"), and others located within the
boundaries of the County and known as the White Bluff Steam
Electric Station (the "Plant"), and paying expenses of issuing
such bonds. The Bonds are all issued under and are all equally
and ratably secured and entitled to the protection given by a
Trust Indenture dated as of June 15, 1994 (the "Indenture"), duly
executed and delivered by the County to the Trustee. The
Indenture provides that the County may hereafter issue Additional
Bonds from time to time under certain terms and conditions
contained in the Indenture and, if issued, such Additional Bonds
will be equally and ratably secured by and entitled to the
protection of the Indenture. Reference is hereby made to the
Indenture and all indentures supplemental thereto for the
provisions, among others, with respect to the nature and extent
of the security, the rights, duties and obligations of the
County, the Trustee and the registered owners of the Bonds, and
the terms upon which the Bonds are issued and secured. The terms
and conditions of the refinancing of the Project, the use of the
proceeds of the Bonds for such purpose, and the payment of
certain amounts thereunder, are contained in a Loan Agreement
dated as of June 15, 1994 (the "Loan Agreement"), by and between
the County and the Company.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Arkansas,
particularly Title 14, Chapter 267 of the Arkansas Code of 1987
Annotated (the "Act"), and pursuant to Orders of the County Court
of the County, which Orders authorized the execution and delivery
of the Indenture. The Bonds do not constitute an indebtedness of
the County within the meaning of any constitutional or statutory
limitation.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS
OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of the Bonds do exist,
have happened and have been performed in due time, form and
manner as required by law; that the indebtedness represented by
the Bonds, together with all obligations of the County, does not
exceed any constitutional or statutory limitation; and that the
above referred to revenues pledged to the payment of the
principal of and premium, if any, and interest on the Bonds as
the same become due and payable will be sufficient in amount for
that purpose.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under
theIndenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, Jefferson County, Arkansas, has
caused this Bond to be executed by its County Judge and County
Clerk, thereunto duly authorized (by their manual or facsimile
signatures), and its corporate seal to be affixed or imprinted,
all as of the date of this Bond shown above.
JEFFERSON COUNTY, ARKANSAS
By ____________________________
ATTEST: County Judge
______________________________
County Clerk
(SEAL)
<PAGE>
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in
and issued under the provisions of the within mentioned
Indenture.
Date of registration and authentication: ____________
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
TRUSTEE
By_____________________________
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, __________________________________
("Transferor"), hereby sells, assigns and transfers unto
_______________, the within Bond and all rights thereunder, and
hereby irrevocably constitutes and appoints ________________
("Transferee") as attorney to transfer the within Bond on the
books kept for registration thereof with full power of
substitution in the premises.
DATE: __________________
_________________________________
Transferor
GUARANTEED BY:
______________________
NOTICE: Signature(s) must be guaranteed by a guarantor
acceptable to the Trustee.
(Reverse Side of Series 1994 Bond)
ADDITIONAL PROVISIONS
The Bonds are not general obligations of the County but
are special obligations payable solely from revenues derived from
the Facilities (including particularly payments under the Loan
Agreement). The Loan Agreement provides for payments by the
Company, as a repayment of the loan made by the County to the
Company out of the proceeds of the Bonds, in amounts sufficient
to provide for the payment of the principal of and premium, if
any, and interest on the Bonds as due and payable. Such payments
will be made directly to the Trustee and deposited in a special
account of the County designated "Jefferson County, Arkansas
Pollution Control Revenue Refunding Bond Fund - Arkansas Power &
Light Company Project," and such payments have been duly assigned
to the Trustee for that purpose. The obligation of the Company
to make such payments is evidenced in part by the Company's first
mortgage bonds issued and delivered to the Trustee as an
additional series under the Mortgage and Deed of Trust dated as
of October 1, 1944, between the Company and Guaranty Trust
Company of New York (Morgan Guaranty Trust Company of New York,
successor) and Henry A. Theis (John W. Flaherty, successor), and,
as to property, real and personal, situated or being in Missouri,
Marvin A. Mueller (The Boatmen's National Bank of St. Louis,
successor), as trustees, as amended and supplemented. All the
rights and interest of the County in and to the Loan Agreement
(except for certain rights specified in the Indenture) have been
assigned under the Indenture to the Trustee to secure the payment
of the principal of and premium, if any, and interest on the
Bonds.
The owner of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to enforce
the covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds and Additional Bonds
issued under the Indenture and then outstanding may be declared
and may become due and payable before the stated maturity
thereof, together with accrued interest thereon.
Modifications or alterations of the Indenture, or of
any indenture supplemental thereto, may be made only to the
extent and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity
as follows:
(a) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, in whole but not
inpart, 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 either unit of the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
associated with either unit of the Plant is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the construction or operation
thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic
availability of materials, supplies, equipment or labor or
(C) destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of either unit of the
Plant or the Facilities associated with either unit shall
have been condemned or taken by eminent domain; or
(iv) the construction or operation of either unit of
the Plant or the Facilities associated with either unit
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.
(b) 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 as a result of a failure by the Company to perform or
observe any covenant, agreement or representation contained in
the Loan Agreement, the interest payable on the Bonds is included
for federal income tax purposes in the gross income of the
bondholders thereof, other than any bondholder who is a
"substantial user" of the Facilities or a "related person" within
the meaning of Section 147(a) of the Internal Revenue Code of
1986, as amended (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 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. The Bonds
shall be redeemed either in whole or inpart in such principal
amount that the interest payable on the Bonds remaining
outstanding after such redemption would not be included in the
gross income of any bondholder thereof, other than a bondholder
who is a "substantial user" of the Facilities or a "related
person" within the meaning of Section 147(a) of the Code.
(c) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, on and after June
1, 2004, in whole at any time or in part from time to time, by
lot or in such other manner as may be determined by the Trustee
to be fair and equitable, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued
interest to the redemption date:
Redemption
Redemption Period Price
June 1, 2004 through May 31, 2005 102%
June 1, 2005 through May 31, 2006 101%
June 1, 2006 and thereafter 100%
The Bonds shall also be subject to optional redemption by the
County, at the direction of the Company, in whole but not in
part, at any time prior to June 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
In the event any of the Bonds or portions thereof
(which shall be $5,000 or any integral multiple thereof) are
called for redemption, notice thereof shall be given by the
Trustee by first class mail, postage prepaid, to the registered
owner of each such Bond addressed to such registered owner at his
registered address and placed in the mails not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed
for redemption; provided, however, that failure to give such
notice by mailing, or any defect therein, shall not affect the
validity of any proceeding for the redemption of any Bond with
respect to which no such failure or defect has occurred. Each
notice shall identify the Bonds or portions thereof being called,
and the date on which they shall be presented for payment. After
the date specified in such call, the Bond or Bonds so called will
cease to bear interest provided funds sufficient for their
redemption have been deposited with the Trustee, and, except for
the purpose of payment, shall no longer be protected by the
Indenture and shall not be deemed to be outstanding under the
provisions of the Indenture.
With respect to notice of redemption of Bonds at the
option of the County (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
bythe Trustee prior to the giving of such notice, such notice
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
This Bond may be transferred on the books of
registration kept by the Trustee by the registered owner or by
his duly authorized attorney upon surrender hereof, together with
a written instrument of transfer duly executed by the registered
owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without
coupons in denominations of $5,000 and any integral multiple
thereof. Subject to the limitations and upon payment of the
charges provided in the Indenture, Bonds may be exchanged for a
like aggregate principal amount of Bonds of other authorized
denominations.
This Bond is issued with the intent that the laws of
the State of Arkansas will govern its construction.
Exhibit B-3(b)
_________________________________________________________________
POPE COUNTY, ARKANSAS
to
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
_______________
TRUST INDENTURE
_______________
Dated as of June 15, 1994
_________________________________________________________________
$19,500,000 Pope County, Arkansas Pollution Control Revenue
Refunding Bonds, Series 1994 (Arkansas Power & Light Company
Project)
<PAGE>
TRUST INDENTURE
This TRUST INDENTURE dated as of June 15, 1994, by and
between POPE COUNTY, ARKANSAS, a political subdivision under the
Constitution and laws of the State of Arkansas (hereinafter
referred to as the "County"), as party of the first part, and
SIMMONS FIRST NATIONAL BANK, an institution organized under and
existing by virtue of the laws of the United States of America
with its principal office, domicile and post office address in
Pine Bluff, Arkansas (hereinafter referred to as the "Trustee"),
as party of the second part;
W I T N E S E T H:
WHEREAS, the County is authorized and empowered under
the laws of the State of Arkansas, including particularly Title
14, Chapter 267 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds 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, certain pollution control facilities
(hereinafter referred to as the "Facilities") have been acquired,
constructed and equipped at the electric generating plant of
Arkansas Power & Light Company, an Arkansas corporation (the
"Company"), located within the boundaries of the County near
Russellville, Arkansas and known as Arkansas Nuclear One
(hereinafter referred to as the "Plant"); and
WHEREAS, pursuant to and in accordance with the
provisions of the Act, the County has heretofore issued and
delivered its Pollution Control Revenue Bonds, Series 1976
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $16,600,000, its Pollution Control Revenue
Bonds, Series 1978 (Arkansas Power & Light Company Project), in
the aggregate principal amount of $1,900,000, and its Pollution
Control Revenue Bonds, Special Industrial Series (Arkansas Power
& Light Company Project), in the aggregate principal amount of
$1,000,000 (collectively, the "Prior Bonds"), for the purpose of
financing the cost of acquiring, constructing and equipping the
Facilities and paying the expenses of authorizing and issuing the
Prior Bonds; and
WHEREAS, the County proposes to issue $19,500,000
aggregate principal amount of its revenue bonds under the Act
(identified in Article I hereof and referred to herein as the
"Series 1994 Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, the Series 1994 Bonds bear interest, mature
and are subject to redemption as hereinafter in this Trust
Indenture set forth in detail; and
WHEREAS, all things necessary to make the Series 1994
Bonds and any Additional Bonds (hereinafter defined) which may be
hereafter issued under this Trust Indenture (hereinafter
collectively referred to as the "Bonds"), when authenticated by
the Trustee and issued as in this Trust Indenture provided, the
valid, binding and legal obligations of the County according to
the import thereof, and to constitute this Trust Indenture a
valid assignment and pledge of revenues to the payment of the
principal of and premium, if any, and interest on the Bonds, in
accordance with the provisions hereof, have or will have been
done and performed, and the creation, execution and delivery of
this Trust Indenture and the creation, execution and issuance of
the Bonds, subject to the terms hereof, have in all respects been
duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
TRUST INDENTURE WITNESSETH:
That the County 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 the sum of One Dollar ($1.00), lawful money
of the United States of America, to it duly paid by the Trustee,
at or before the execution and delivery of these presents, and
for other good and valuable considerations, the receipt of which
is hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the County of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the County
hereinafter set forth:
1.
All the rights and interest of the County in and to the
Loan Agreement (as hereinafter defined) (except for the rights of
the County under Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the
Loan Agreement and any rights of the County to receive notices,
certificates, requests, requisitions, directions and other
communications under the Loan Agreement), including, without
limitation, its right to receive the First Mortgage Bonds (as
hereinafter defined); all Revenues (as hereinafter defined) and
the proceeds of all thereof; and the First Mortgage Bonds issued
and delivered by the Company pursuant to the Loan Agreement.
2.
All the rights and interest of the County in and to the
Bond Fund and the Clearing Fund (as hereinafter defined), and all
moneys and investments therein, but subject to the provisions
ofthis Trust Indenture pertaining thereto, including those
pertaining to the making of disbursements therefrom.
3.
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 County 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 are deemed to have been paid in accordance with
Article IX hereof and funds held pursuant to Section 505 hereof,
which shall be held by the Trustee in accordance with the
provisions of said Article IX or Section 505, as the case may be.
TO HAVE AND TO HOLD all 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
trusts and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth for the equal and proportionate benefit and security of
all owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to lien
of any Bonds over any other Bonds, except insofar as any sinking,
amortization or other fund, or any terms or conditions of
redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds of any
particular series.
PROVIDED, HOWEVER, that if the County shall pay or
cause to be paid to the owners of the Bonds the principal of and
premium, if any, and interest to become due thereon at the times
and in the manner stipulated therein, and if the County shall
keep, perform and observe all and singular the covenants and
promises in the Bonds and in this Trust Indenture expressed as to
be kept, performed and observed by it on its part, all as
provided in and subject to the provisions of Article IX hereof,
then and in that case these presents and the estate and rights
hereby granted, except as otherwise provided in Article IX, shall
cease, determine and be void, and thereupon the Trustee shall
cancel and discharge the lien of this Trust Indenture and execute
and deliver to the County such instruments in writing as shall be
requisite to evidence the discharge hereof pursuant to the
provisions of said Article IX; otherwise this Trust Indenture to
be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured hereunder
are to be issued, authenticated and delivered, and the Trust
Estate (as hereinafter defined) and the other estate and rights
hereby granted, are to be dealt with and disposed of, under, upon
and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the County has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words
and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the
following meanings:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- The Bonds in addition to the
Series 1994 Bonds, which are issued under the provisions of
Section 211 of this Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to the
Loan Agreement, this Indenture and any transaction or event
contemplated by the Loan Agreement or this Indenture including
the compensation and reimbursement of expenses and advances
payable to the Trustee, any Paying Agent, and the Bond Registrar.
"Authorized Company Representative" -- The person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the County and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Senior Vice President, any Vice
President, or the Treasurer.
"Bonds" -- The Series 1994 Bonds and all Additional
Bonds issued by the County pursuant to this Indenture.
"Bond Counsel" -- Any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the County and the Trustee.
"Bond Fund" -- The fund by that name created and
established in Section 501 of this Indenture.
"Bond Registrar" -- The registrar of Bonds named
herein.
"Clearing Fund" -- The fund by that name created and
established in Section 601 of this Indenture.
"Clerk" -- The person holding the office and performing
the duties of the County Clerk of the County.
"Code" -- The Internal Revenue Code of 1954, as
heretofore amended, and the Internal Revenue Code of 1986, as
heretofore or hereafter amended, as applicable.
"Company" -- Arkansas Power & Light Company, an
Arkansas corporation. The Company is a party to the Loan
Agreement, and the reference includes any successor or assignee
pursuant to the provisions thereof.
"Company Mortgage" -- The Mortgage and Deed of Trust
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (Morgan Guaranty Trust Company of New
York, successor) and Henry A. Theis (John W. Flaherty,
successor), and, as to property, real or personal, situated or
being in Missouri, Marvin A. Mueller (The Boatmen's National Bank
of St. Louis, successor), as trustees, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustees" -- The trustees under the
Company Mortgage.
"County" -- Pope County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"County Judge" -- The person holding the office and
performing the duties of the County Judge of the County.
"Event of Default" -- Any event of default specified in
Section 1001 hereof.
"Facilities" -- The pollution control facilities at the
Plant which were financed and refinanced, in whole or in part,
with the proceeds of the Prior Bonds, more particularly
identified in the Loan Agreement.
"First Mortgage Bonds" -- The bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.03 of the Loan Agreement.
"Government Securities" -- (a) Direct or fully
guaranteed obligations of the United States of America (including
any such securities issued or held in book-entry form on the
books of the Department of Treasury of the United States of
America); 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 theholders 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.
"holder" or "bondholder" or "owner of the Bonds" -- The
registered owner of any Bond.
"Indenture" -- This Trust Indenture and all amendments
and supplements hereto.
"Loan Agreement" -- The Loan Agreement dated as of June
15, 1994, by and between the County and the Company, and any
amendments and supplements thereto.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to this Indenture.
"Paying Agent" -- Any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Series 1994 Bonds, the Trustee is the
original Paying Agent.
"person" -- Includes natural persons, firms,
associations, corporations and public bodies.
"Plant" -- The Company's electric generating plant
located within the boundaries of the County near Russellville,
Arkansas and known as Arkansas Nuclear One.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series 1976 (Arkansas Power & Light Company Project), in
the aggregate principal amount of $16,600,000, the County's
Pollution Control Revenue Bonds, Series 1978 (Arkansas Power &
Light Company Project), in the aggregate principal amount of
$1,900,000, and the County's Pollution Control Revenue Bonds,
Special Industrial Series (Arkansas Power & Light Company
Project), in the aggregate principal amount of $1,000,000.
"Record Date" -- With respect to any interest payment
date of the Bonds, the fifteenth day of the calendar month next
preceding such interest payment date.
"Revenues" -- All moneys paid or payable by the Company
to the Trustee for the account of the County in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Sections 5.02 and 9.01 of the
Loan Agreement, and all receipts of the Trustee credited under
the provisions of this Indenture against such payments.
"Series 1994 Bonds" -- The initial issue of Bonds under
and secured by this Indenture in the aggregate principal amount
of $19,500,000.
"Trustee" -- The banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is Simmons First National
Bank, Pine Bluff, Arkansas.
"Trust Estate" -- The property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
Section 102. Use of Words. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond", "owner", "holder" and
"person" shall include the plural, as well as the singular,
number.
ARTICLE II
THE BONDS
Section 201. Authorized Form and Amount of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with this Article. All Bonds issued hereunder
shall be in the form of registered Bonds without coupons. The
total principal amount of Bonds that may be issued is hereby
expressly limited to $19,500,000, except as provided in Sections
208, 211 and 212 hereof.
Section 202. Details of Series 1994 Bonds. The
Series 1994 Bonds (i) shall be designated "Pope County, Arkansas
Pollution Control Revenue Refunding Bonds, Series 1994 (Arkansas
Power & Light Company Project)," (ii) shall be in the aggregate
principal amount of $19,500,000, (iii) shall be issued in the
denomination of $5,000 each, or any integral multiple thereof,
(iv) shall be numbered consecutively from 1 upwards in order of
issuance according to the records of the Trustee, (v) shall be
dated as hereinafter provided, (vi) shall bear interest as
hereinafter provided, payable semiannually on June 1 and December
1 of each year commencing December 1, 1994, and (vii) shall
mature, unless sooner redeemed in the manner in this Indenture
set forth, on December 1, 2016.
The Series 1994 Bonds shall bear interest from and
including the date thereof until the principal thereof shall have
become due and payable in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise, at the rate of
six and thirty one-hundredths percent (6.30%) per annum. Overdue
principal of the Series 1994 Bonds shall bear interest at the
rate of six percent (6%) per annum until paid. Overdue
installments of interest shall not bear interest.
Series 1994 Bonds issued before December 1, 1994, shall
be dated as of June 15, 1994, and Series 1994 Bonds issued on or
subsequent to December 1, 1994, shall be dated as of the interest
payment date next preceding the date of authentication and
delivery thereof by the Trustee, unless such date of
authentication and delivery shall be an interest payment date, in
which case they shall be dated as of such date of authentication
and delivery, or unless such date of authentication and delivery
shall be during the period from the Record Date to the next
interest payment date, in which case they shall be dated as of
such interest payment date; provided, however, that if, as shown
by the records of the Trustee, interest on any Bonds surrendered
for transfer or exchange shall be in default, the Bonds issued in
exchange for Bonds surrendered for transfer or exchange shall be
dated as of the date to which interest has been paid in full on
the Bonds surrendered.
The Series 1994 Bonds shall be substantially in the
form set forth in Exhibit A attached hereto with such appropriate
variations, omissions and insertions as are permitted or required
by this Indenture.
Section 203. Payment. The principal of and premium,
if any, on the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office
of the Trustee. The interest on the Bonds shall be payable by
check drawn upon the Trustee and mailed to the registered owners
as of the close of business on the Record Date next preceding the
interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
Section 204. Execution. The Bonds shall be executed
on behalf of the County by the County Judge and the County Clerk
(by their manual or facsimile signatures) and shall have
impressed or imprinted thereon the seal of the County. A
facsimile signature shall have the same force and effect as if
personally signed. In case any officer whose signature or
facsimile of whose signature shall appear on the Bonds shall
cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, the same as if he had remained in
office until delivery.
Section 205. Limited Obligation. The Bonds, together
with interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the revenues pledged to
the Bond Fund, which revenues are hereby pledged and mortgaged
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 and premium, if any, and
interest on the Bonds, and the Paying Agent's fees, except as may
be otherwise expressly authorized in this Indenture. The Bonds
(including premium, if any) and interest thereon shall not
constitute an indebtedness of the County within the meaning of
any constitutional or statutory provision and shall never
constitute an obligation of or a charge against the general
credit or taxing powers of the County.
Section 206. Authentication. Only such Bonds as
shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A attached hereto
duly executed by the Trustee shall be entitled to any right or
benefit under this Indenture. No Bond shall be valid and
obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by the Trustee, and
such Certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of theTrustee, but it shall
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
Section 207. Delivery of the Bonds. The County shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds of any series and deliver said Bonds to
the original purchaser or purchasers thereof as may be directed
hereinafter in this Section 207, in Section 211 hereof, or in any
supplemental indenture.
Prior to the delivery on original issuance by the
Trustee of any authenticated Bonds of any series there shall be
or have been delivered to the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and, in the case of Additional
Bonds, a supplemental indenture by and between the County and the
Trustee setting forth the details concerning such Bonds.
(b) An original duly executed counterpart or a duly
certified copy of the Loan Agreement and, in the case of
Additional Bonds, an amendment of or supplement to the Loan
Agreement, if any.
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the Company
Mortgage creating the series of First Mortgage Bonds to be issued
in respect of such series of Bonds as provided in Section 5.03 of
the Loan Agreement and (ii) such First Mortgage Bonds.
(d) A written order to the Trustee by the County to
authenticate and deliver the Bonds of such series to the original
purchasers thereof upon payment to Trustee, but for the account
of the County, of a sum specified in such order.
(e) A copy, duly certified by the Clerk, of the
proceedings of the governing body of the County authorizing the
issuance of the Bonds.
(f) In the case of any series of Additional Bonds, a
written opinion of Bond Counsel, to the effect that the issuance
of such Bonds and the execution thereof have been duly
authorized, all conditions precedent to the delivery thereof have
been fulfilled, and that the exclusion of the interest on the
Series 1994 Bonds and any Additional Bonds theretofore issued
from gross income for federal income tax purposes will not be
affected by the issuance of the Bonds being issued.
Section 208. Mutilated, Destroyed or Lost Bonds. In
case any Bond issued hereunder shall become mutilated or be
destroyed or lost, the County shall, if not then prohibited by
law, cause to be executed and the Trustee shall authenticate and
delivera new Bond of the same series of like date, number,
maturity and tenor in exchange and substitution for and upon
cancellation of such mutilated Bond, or in lieu of and in
substitution for such Bond destroyed or lost, upon the holder's
paying the reasonable expenses and charges of the County and
Trustee in connection therewith, and, in the case of a Bond
destroyed or lost, his filing with the Trustee evidence
satisfactory to the Company and the Trustee that such Bonds were
destroyed or lost, and of his ownership thereof, and furnishing
the County, the Company and the Trustee with indemnity
satisfactory to them. The Trustee is hereby authorized to
authenticate any such new Bond. In the event any such Bonds
shall have matured, instead of issuing a new Bond, the County may
pay the same without the surrender thereof.
Section 209. Registration and Exchange of Bonds. The
County hereby constitutes and appoints the Trustee as Bond
Registrar of the County, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the County, the Trustee, nor the Bond
Registrar shall be affected by any notice to the contrary but
such registration may be changed as herein provided. All
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Bonds may be transferred on the books of registration
kept by the Trustee by the registered owner in person or by his
duly authorized attorney, upon surrender thereof, together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the County
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations of
the same series with corresponding maturities. The County shall
execute and the Trustee shall authenticate and deliver Bonds
which the bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding. The execution by the
County of any Bond of any denomination shall constitute full and
due authorization of such denomination and the Trustee shall
thereby be authorized to authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds
shall be without charge to the holders of such Bonds, but any
taxes or other governmental charges required to be paid with
respect to the same shall be paid by the holder of the Bond
requesting such transfer or exchange as a condition precedent to
the exercise of such privilege.
The Trustee shall not be required to transfer or
exchange any Bond after the mailing of notice calling such Bond
for redemption has been made and prior to such redemption, nor
during the period of fifteen (15) days next preceding mailing of
a notice of redemption of any Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
Section 210. Cremation and Other Dispositions. All
Bonds surrendered for the purpose of payment or retirement, or
for exchange, or for replacement or payment as provided above, or
for cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the County an appropriate certificate describing the
Bonds involved and the manner of disposition.
Section 211. Additional Bonds. The County, at the
request of the Company and to the extent permitted by law in
effect at the time thereof, may issue from time to time one or
more series of Additional Bonds for the purposes provided in
Section 4.02 of the Loan Agreement. Additional Bonds shall be
secured equally and ratably with the Series 1994 Bonds and any
other Additional Bonds theretofore issued and then outstanding,
except insofar as any sinking, amortization or other fund, or any
terms or conditions of redemption or purchase, established under
this Indenture may afford additional benefit or security for the
Bonds of any particular series. Before any Additional Bonds are
authenticated there shall be delivered to the Trustee the items
required for the issuance of Bonds by Section 207 hereof.
The right to issue Additional Bonds set forth in this
Indenture shall not imply that the County may not issue, and the
County expressly reserves the right to issue, to the extent
permitted by law, obligations under another indenture or
indentures to refund all or any principal amount of all or any
series of Bonds, or any combination thereof, and the provisions
of this Indenture governing the issuance of Additional Bonds
shall not apply thereto.
The proceeds of the issuance and sale of any series of
Additional Bonds, including purchase premium, if any, and accrued
interest, if any, thereon to the date of delivery thereof paid by
the original purchasers thereof, shall be applied simultaneously
with the delivery of such Additional Bonds in the manner provided
in this Indenture and in the supplemental indenture authorizing
such Additional Bonds.
Notwithstanding anything herein to the contrary, no
Additional Bonds shall be issued unless (i) the Loan Agreement is
in effect, and (ii) at the time of issuance there is no Event of
Default (defined in the Loan Agreement) under the Loan Agreement
or Event of Default under this Indenture.
Section 212. Temporary Bonds. Until Bonds in
definitive form are ready for delivery, the County may execute,
and upon the request of the County, the Trustee shall
authenticate and deliver, subject to the provisions, limitations
and conditions set forth herein, one or more Bonds in temporary
form, whether printed, typewritten, lithographed or otherwise
produced, substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the County
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
Section 213. Book Entry System. The Trustee and the
County, at the direction of the Company, may from time to time
enter into, and discontinue, an agreement with a "clearing
agency" registered under Section 17A of the Securities Exchange
Act of 1934, as amended (the "Securities Depository"), which is
the owner of the Bonds of any series, to establish procedures
with respect to the Bonds of such series not inconsistent with
the provisions of this Indenture; provided, however, that any
such agreement may provide:
(a) that such Securities Depository is not required to
present a Bond to the Trustee in order to receive a partial
payment of principal;
(b) that a legend shall appear on each Bond of such
series so long as the Bonds of such series are subject to
such agreement; and
(c) that different provisions for notice to such
Securities Depository may be set forth therein.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption Applicable to Series 1994
Bonds Only. The Series 1994 Bonds shall be subject to redemption
prior to maturity as follows:
(a) The Series 1994 Bonds shall be subject to optional
redemption by the County, 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 either unit of the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
associated with either unit of the Plant is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the construction or operation
thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic
availability of materials, supplies, equipment or labor or
(C) destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of either unit of the
Plant or the Facilities associated with either unit shall
have been condemned or taken by eminent domain; or
(iv) the construction or operation of either unit of
the Plant or the Facilities associated with either unit
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.
(b) The Series 1994 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 as a result of a
failure by the Company to perform or observe any covenant,
agreement or representation contained in the Loan Agreement, the
interest payable on the Series 1994 Bonds is included for federal
income tax purposes in the gross income of thebondholders
thereof, other than any bondholder 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 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. The Series
1994 Bonds shall be redeemed either in whole or in part in such
principal amount that the interest payable on the Series 1994
Bonds remaining outstanding after such redemption would not be
included in the gross income of any bondholder thereof, other
than a bondholder who is a "substantial user" of the Facilities
or a "related person" within the meaning of Section 147(a) of the
Code.
(c) The Series 1994 Bonds shall be subject to optional
redemption by the County, at the direction of the Company, on and
after June 1, 2004, in whole at any time or in part from time to
time (and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable), at the
redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued interest to the redemption date:
Redemption
Redemption Period Price
June 1, 2004 through May 31, 2005 102%
June 1, 2005 through May 31, 2006 101%
June 1, 2006 and thereafter 100%
The Series 1994 Bonds shall also be subject to optional
redemption by the County, at the direction of the Company, in
whole but not in part, at any time prior to June 1, 2004, at a
redemption price equal to 102% of the principal amount being
redeemed plus accrued interest to the redemption date, if the
Company shall have consolidated with or merged with or into
another corporation, or sold or otherwise transferred all or
substantially all of its assets.
In case a Series 1994 Bond is of a denomination larger
than $5,000, a portion of such Bond ($5,000 or any integral
multiple thereof) may be redeemed if otherwise permitted, but
Series 1994 Bonds shall be redeemed only in the principal amount
of $5,000 or any integral multiple thereof.
Section 302. Notice. Notice of the call for any
redemption, identifying the Bonds or portions thereof being
called and the date on which they shall be presented for payment,
shall be given by the Trustee by first class mail, postage
prepaid, to the registered owner of each such Bond addressed to
such registered owner at his registered address and placed in the
mails not lessthan thirty (30) days nor more than sixty (60) days
prior to the date fixed for redemption; provided, however, that
failure to give such notice by mailing, or any defect therein,
shall not affect the validity of any proceeding for the
redemption of any Bond with respect to which no such failure or
defect has occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at
the option of the County (at the direction of the Company),
unless moneys sufficient to pay the principal of and premium, if
any, and interest on the Bonds to be redeemed shall have been
received by the Trustee prior to the giving of such notice, such
notice shall state that said redemption shall be conditional upon
the receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
Section 303. Redemption Payments. Subject to the
provisions of the last paragraph of Section 302 hereof, 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.
Section 304. Cancellation. All Bonds which have been
redeemed shall not be reissued but shall be canceled and disposed
of by the Trustee in accordance with Section 210 hereof.
Section 305. Partial Redemption of Bonds. Upon
surrender of any Bond for redemption in part only, the County
shall execute and the Trustee shall authenticate and deliver to
the holder thereof a new Bond or Bonds of the same series and the
same maturity, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
Section 401. Payment of Principal, Premium, If Any,
and Interest. The County covenants that it will promptly pay or
cause to be paid the principal of and 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 County hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or 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 or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds) are payable solely from the Revenues, which Revenues are
hereby specifically pledged to 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 County other than the Revenues and the
right, title and interest of the County in the Loan Agreement
(except for the rights of the County under Sections 5.05, 5.06,
5.07, 6.03, and 8.05 of the Loan Agreement and any rights of the
County to receive notices, certificates, requests, requisitions,
directions and other communications under the Loan Agreement) in
the manner and to the extent herein specified. Anything in this
Indenture to the contrary notwithstanding, it is understood that
whenever the County makes any covenants involving financial
commitments, including, without limitation, those in the various
sections of this Article IV, it pledges no funds or assets other
than the Revenues and the right, title and interest of the County
in the Loan Agreement (except for the rights of the County under
Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the Loan Agreement
and any rights of the County to receive notices, certificates,
requests, requisitions, directions and other communications under
the Loan Agreement), the Bond Fund and the Clearing Fund in the
manner and to the extent herein specified, but nothing herein
shall be construed as prohibiting the County from using any other
funds or assets.
Section 402. Performance of Covenants. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all ordinances
pertaining thereto. The County covenants that it is duly
authorized under the Constitution and laws of the State of
Arkansas, 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 itspart for the
issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds
in the hands of the holders and owners thereof are and will be
valid and enforceable obligations of the County according to the
import thereof.
Section 403. Instruments of Further Assurance. The
County covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring,
mortgaging, pledging, assigning and confirming unto the Trustee
the Trust Estate.
Section 404. Recordation and Other Instruments. The
County and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Loan 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 405. Inspection of Project Books. The County
and the Trustee covenant and agree that all books and documents
in their possession relating to the Facilities and the revenues
derived from the Facilities (including the records pertaining to
the Clearing Fund) shall at all reasonable times be open to
inspection by such accountants or other agencies as the other
party may from time to time designate and by the Company.
Section 406. Rights Under Loan Agreement. The Loan
Agreement, a duly executed counterpart of which has been filed
with the Trustee, sets forth the covenants and obligations of the
County and the Company, including provisions that subsequent to
the issuance of Bonds and prior to their payment in full or
provision for payment thereof in accordance with the provisions
hereof the Loan 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
County agrees that the Trustee in its name or in the name of the
County may enforce all rights of the County and all obligations
of the Company under and pursuant to the Loan Agreement, for and
on behalf of the bondholders, whether or not the County is in
default hereunder.
Section 407. Prohibited Activities. The County and
the Trustee covenant that neither of them shall take any action
or suffer or permit any action to be taken or condition to exist
whichcauses 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
County and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
Section 408. No Transfer of First Mortgage Bonds.
The Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
Section 409. Voting of First Mortgage Bonds. The
Trustee shall, as the holder of the First Mortgage Bonds, attend
such meeting or meetings of bondholders under the Company
Mortgage or, at its option, deliver its proxy in connection
therewith, as relate 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 first mortgage bonds issued under the
Company Mortgage is sought without a meeting, the Trustee shall
vote as the holder of the First Mortgage 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 first 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 which is
correlative to any amendment or modification of this Indenture
referred to in Section 1202 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 1202,
of bondholders which would be required under said Section 1202
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section 409 shall be binding upon the County
and the bondholders.
Section 410. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustees in accordance with the provisions of Section
5.03(d) of the Loan Agreement.
Section 411. Notice to Company Mortgage Trustees. In
the event that a payment on the First Mortgage Bonds shall
havebecome due and payable and shall not have been fully paid,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustees specifying the amount of funds required to make
such payment. In the event that any Bonds are to be redeemed
pursuant to any provisions of this Indenture requiring mandatory
redemption of Bonds of any series (other than at the direction of
the Company), except for provisions which establish sinking fund
redemption requirements, 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 First Mortgage Bonds or on the rights of
the Trustee or of the bondholders.
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of Bond Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the County to be designated "Pope
County, Arkansas Pollution Control Revenue Refunding Bond Fund -
Arkansas Power & Light Company Project".
Section 502. Payments Into Bond Fund. There shall be
deposited into the Bond Fund as and when received:
(a) All accrued interest received at the time of the
issuance and delivery of the Bonds;
(b) Amounts transferred to the Bond Fund pursuant to
the provisions of Section 604 hereof;
(c) All Revenues; and
(d) All moneys received by the Trustee under and
pursuant to any of the provisions of the Loan
Agreement or this Indenture which are not directed
to be paid into a fund (or held) other than the
Bond Fund.
Section 503. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 508 and 1102 hereof, moneys in the
Bond Fund shall be used solely for the payment of the principal
of and premium, if any, and interest on the Bonds.
Section 504. Withdrawals from Bond Fund. The Bond
Fund shall be in the name of the County, designated as set forth
in Section 501, and the County hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient
funds to pay the principal of and premium, if any, and interest
on the Bonds at maturity and redemption prior to maturity and to
use such funds for the purpose of paying principal, premium, if
any, and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
Trustee hereby accepts.
Section 505. Non-Presentment of Bonds. In the event
any Bonds shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Trustee for that purpose, or left in trust if
previously so deposited, funds sufficient to pay the principal
thereof, and premium, if any, together with all interest unpaid
and due thereon, to the due date thereof, for the benefit of the
holder thereof, all liability of the County to the holder thereof
for thepayment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
Section 506. Administration Expenses. It is
understood and agreed that pursuant to the provisions of Section
5.05 of the Loan Agreement, the Company agrees to pay the
Administration Expenses of the County. All such payments under
the Loan Agreement which are received by the Trustee shall not be
paid into the Bond Fund, but shall be segregated by the Trustee
and expended solely for the purpose for which such payments are
received.
Section 507. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund or the Clearing Fund 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 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 IX 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 provisions of
the Loan Agreement calling for the Trustee to hold, administer
and disburse the same in accordance with the specific provisions
of the Loan Agreement shall be held, administered and disbursed
pursuant to such provisions, and where required by the provisions
of the Loan Agreement the Trustee shall set the same aside in a
separate account. The County agrees that if it shall receive any
moneys pursuant to applicable provisions of the Loan 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 Loan Agreement pursuant to
which the County may have received the same. Furthermore, if for
any reason the Loan Agreement ceases to be in force and effect
while any Bonds are outstanding, the County 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 Loan Agreement that would be
applicable if the Loan 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 County's obligations under this
Indenture.
Section 508. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts as specified in the Loan Agreement, whether such excess
amounts be in the Bond Fund or in special accounts.
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. Creation of Clearing Fund. There is
hereby created and ordered to be established with the Trustee a
special account of the County to be designated "Pope County,
Arkansas Pollution Control Revenue Refunding Bond Clearing Fund
- -Arkansas Power & Light Company Project."
Section 602. Payments into Clearing Fund. The
proceeds from the issuance and sale of each series of Bonds,
other than accrued interest, if any, on such Bonds to the date of
delivery thereof paid by the original purchaser or purchasers
thereof, shall be deposited into the Clearing Fund established in
respect of such series of Bonds.
Section 603. Disbursements from Clearing Fund.
Moneys in the Clearing Fund shall be disbursed by the Trustee to
the trustee for the Prior Bonds to pay the principal of and
premium, if any, and interest on the Prior Bonds (in the case of
the Series 1994 Bonds) or to pay the principal of and premium, if
any, and interest on all or any portion of any series of Bonds
then being refunded (in the case of Additional Bonds) on the
applicable dates of redemption thereof.
Section 604. Balance in Clearing Fund. Upon the
redemption of the Prior Bonds or all or any portion of any series
of Bonds then being refunded, any balance remaining in the
Clearing Fund in respect thereof (except for amounts retained by
the Trustee to pay such Bonds) shall be transferred by the
Trustee into the Bond Fund; provided, however, no amount shall be
transferred into the Bond Fund unless the Trustee is furnished
with an opinion of Bond Counsel to the effect that such use is
lawful under the Act and will not adversely affect the exclusion
of interest on any of the Bonds from gross income for purposes of
federal income taxation.
ARTICLE VII
INVESTMENTS
Section 701. Investment of Moneys. (a) Moneys held
for the credit of the Clearing Fund shall, upon 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 any agency or instrumentality 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; and (viii) 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 rankings 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.
(b) Moneys held for the credit of any other fund or
account, including, without limitation, the Bond Fund, shall to
the extent practicable be invested and reinvested in Government
Securities which will mature, or which will be subject to
redemption at the option of the holder, not later than the date
or dates on which the money held for credit of the particular
fund shall be required for the purposes intended. The Trustee
shall soinvest and reinvest pursuant to instructions from the
Authorized Company Representative.
(c) 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 the fund or account and any
loss shall be charged to the fund or account.
Section 702. Arbitrage Law Requirements. In
compliance with the provisions of Section 148 of the Code and
regulations thereunder, all investments and reinvestments made
under this Article VII shall be subject to the following:
(a) In the event that the County or the Company is of
the opinion that it is necessary or advisable to restrict or
limit the yield on the investment of any moneys held in the
Clearing Fund, the Bond Fund or any other fund in order to avoid
the Bonds being considered "arbitrage bonds" within the meaning
of Section 148 of the Code, or any proposed, temporary or final
regulations thereunder as such regulations may apply to
obligations issued as of the date of original issuance and
delivery of the Bonds, the County or the Company may issue to the
Trustee a written certificate to such effect together with
appropriate written instructions, in which event the Trustee
shall take such action as is necessary so as to restrict or limit
the yield on such investment in accordance with such certificate
and instructions, irrespective of whether the Trustee shares such
opinion.
(b) The Trustee shall establish and maintain within
the Bond Fund, the Clearing Fund or any other fund, in respect of
each series of Bonds issued hereunder, a separate account into
which shall be deposited as and when received any amounts which
are subject or could be subject to rebate to the United States
under Section 148(f) of the Code, which amounts shall be held in
such separate accounts until paid to the United States pursuant
to said Section or until the Trustee determines that no such
payment is required.
(c) The County and the Trustee shall not make or agree
to make any payments or participate in any non-arms-length
transaction which would have the effect of reducing the earnings
on investments, thereby reducing the amount required to be
rebated to the United States under Section 148(f) of the Code and
regulations thereunder.
(d) The Company has undertaken in the Loan Agreement
to make the determinations required by paragraph (b) of this
Section 702 and to provide statements to the Trustee to the
effect that all actions with respect to the Bonds required by
Section 148(f) of the Code has been taken. The Trustee shall be
entitled to rely uponsuch determinations and statements as
sufficient evidence of the facts therein contained.
ARTICLE VIII
RIGHTS OF THE COMPANY
Section 801. Rights of Company Under Loan Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Loan Agreement and an
Event of Default hereunder shall not constitute an "Event of
Default" under the Loan Agreement unless by the terms of the Loan
Agreement it constitutes an "Event of Default" thereunder.
Section 802. Enforcement of Rights and Obligations.
The County and the Trustee agree that the Company in its own name
or in the name of the County may enforce all of the rights of the
County, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
ARTICLE IX
DISCHARGE OF LIEN
Section 901. Discharge of Lien. If the County shall
pay or cause to be paid to the holders and owners of the Bonds
the principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the County 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 all other sums payable
hereunder by the County, then these presents and the estate and
rights hereby granted shall cease, determine and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the County such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the County the estate hereby conveyed, and assign and
deliver to the County 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 premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning
of this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that
the Trustee shall have received an opinion of Bond Counsel to the
effect that such deposit will not affect the exclusion of the
interest on any of the Bonds from gross income for purposes of
federal income taxation or cause any of the Bonds to be treated
as arbitrage bonds within the meaning of Section 148(a) of the
Code) maturing as to principal and interest in such amounts and
at such times as will provide sufficient moneys to make such
payment when due, and all necessary and proper fees, compensation
and expenses of the Trustee and any Paying Agent pertaining to
the Bonds with respect to which such deposit is made and all
other liabilities of the Company under the Loan Agreement shall
have been paid or the payment thereof provided for to the
satisfaction of the Trustee. No deposit under (b) above shall
constitute such discharge and satisfaction until the Company
shall have irrevocably notified the Trustee of the date for
payment of such Bond either at maturity or on a date on which
such Bond may be redeemed in accordance with the provisions
hereof and notice of such redemption shall have been given or
irrevocable provisions shall have been made for the giving of
such notice.
The County or the Company may at any time surrender to
the Trustee for cancellation by it any Bonds previously
authenticated and delivered hereunder, which the County 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 X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001. Events of Default. Each of the
following events shall constitute and is referred to in this
Indenture as an "Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured and
outstanding, whether at the stated maturity thereof, or upon
unconditional proceedings for redemption thereof, or upon the
maturity thereof by acceleration;
(c) an "Event of Default" as such term is defined in
Section 8.01 of the Loan Agreement; or
(d) default in the payment of any other amount
required to be paid under this Indenture or the performance or
observance of any other of the covenants, agreements or
conditions contained in this Indenture, or in the Bonds issued
under this Indenture, and continuance thereof for a period of
ninety (90) days after written notice specifying such failure and
requesting that it be remedied, shall have been given to the
County and the Company by the Trustee, which may give such notice
in its discretion and shall give such notice at the written
request of Bondholders of not less than 10% in aggregate
principal amount of the Bonds then outstanding, unless the
Trustee, or the Trustee and bondholders of an aggregate principal
amount of Bonds not less than the aggregate principal amount of
Bonds the bondholders 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 bondholders of such principal amount of
Bonds, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is instituted by
the County, or the Company on behalf of the County within such
period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (d)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
Section 1002. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a) or
(b)of the first paragraph of Section 1001 hereof, 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 County and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 302 hereof.
Upon the occurrence and continuance of an Event of
Default described in clause (c) of the first paragraph of Section
1001 hereof, and further upon the condition that, in accordance
with the terms of the Company Mortgage, the First Mortgage 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 County and the Company, and notice to bondholders
in the same manner as a notice of redemption under Section 302
hereof.
Section 1003. Other Remedies; Rights of Bondholders.
Upon the occurrence and continuance of an Event of Default, the
Trustee may, in addition or as an alternative, pursue any
available remedy by suit at law or in equity to enforce the
payment of the principal of and premium, if any, and interest on
the Bonds then outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it
shall have been requested so to do by the holders of twenty-five
percent (25%) in aggregate principal amount of Bonds outstanding
hereunder and shall have been indemnified as provided in Section
1101 hereof, the Trustee shall be obligated to exercise such one
or more of the rights and powers conferred upon it by this
Section as the Trustee, being advised by counsel, shall deem most
expedient in the interests of the bondholders.
No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee (or to the bondholders) is intended to
be exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power
accruing upon any default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any
such default or Event of Default or acquiescence therein; and
every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the bondholders, shall extend to
orshall affect any subsequent default or Event of Default or
shall impair any rights or remedies consequent thereon.
Section 1004. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding the holders of a majority in aggregate principal
amount of Bonds outstanding hereunder shall have the right, at
any time, by an instrument or instruments in writing executed and
delivered to the Trustee, to direct the method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture, or for
the appointment of a receiver or any other proceeding hereunder;
provided that such direction shall not be otherwise than in
accordance with the provisions of law and of this Indenture.
Section 1005. Appointment of Receiver. Upon the
occurrence and continuance of an Event of Default, and upon the
filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the bondholders under
this Indenture, the Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the Trust
Estate and of the tolls, rents, revenues, issues, earnings,
income, products and profits thereof, pending such proceedings
with such powers as the court making such appointment shall
confer.
Section 1006. Waiver. In case of an Event of Default
on the part of the County, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the County nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
County, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Arkansas.
Section 1007. Application of Moneys. Available moneys
remaining after discharge of costs, charges and liens prior to
this Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto
of all installments of interest then due, in the order of the
maturity of the installments of such interest, and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the
amounts due on such installment, to the persons entitled thereto,
without any discrimination or privilege;
Second: To the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds which shall have
become due (other than Bonds called for redemption for the
payment of which moneys are held pursuant to the provisions of
this Indenture), in the order of their due dates, with interest
on such Bonds from the respective dates upon which they become
due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the amount of
principal due on such date, to the persons entitled thereto
without any discrimination or privilege of any Bond over any
other Bond and without preference or priority of principal over
interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of Bonds, all in
accordance with the provisions of Article V of this Indenture.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid upon
the Bonds, without preference or priority of principal over
interest or of interest over principal, or of any Bond over any
other Bond, ratably, according to the amounts due respectively
for principal and interest, to the person entitled thereto
without discrimination or privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if acceleration of the maturity of
the Bonds by reason of an Event of Default shall thereafter have
been rescinded and annulled under the provisions of this Article
then, subject to the provisions of paragraph (b) of this Section
in the event that the principal of all the Bonds shall later
become due and payable, the moneys shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee
pursuant to the provisions of this Section, such moneys shall be
applied by it at such times, and from time to time, as it shall
determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys
becoming available for such application in the future. Whenever
the Trustee shall apply such funds, it shall fix the date (which
shall be an interest payment date unless it shall deem another
date more suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be paid on
such dates shall cease to accrue. The Trustee shall give such
notice as it may deem appropriate of the deposit with it of any
such moneys and of the fixing of any such date and shall not be
required to make payment to the holder of any Bond until such
Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid.
Section 1008. Remedies Vested in Trustee. All rights
of action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the
equal benefit of the holders of the outstanding Bonds.
Section 1009. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless a default has occurred of which the Trustee has been
notified as provided in subsection (g) of Section 1101, or of
which by said subsection it is deemed to have notice, nor unless
such default shall have become an Event of Default and the
holders of twenty-five percent (25%) in aggregate principal
amount of Bonds outstanding hereunder shall have made written
request to the Trustee and shall have offered it reasonable
opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in its
own name, nor unless also they have offered to the Trustee
indemnity as provided in Section 1101 nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every such case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by his or their
action or to enforce any right hereunder except in the manner
herein provided, and that all proceedings at law or in equity
shall be instituted, held and maintained in the manner herein
provided for the equal benefit of the holders of all Bonds
outstanding hereunder. Nothing in this Indenture contained
shall, however, affect or impair the right of any bondholders to
enforce the payment of the principal of and interest on any Bonds
at and after the maturity thereof, or the obligation of the
County to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time
and place in said Bonds expressed.
Section 1010. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver or otherwise, and
suchproceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the County and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies
and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
Section 1011. Waivers of Events of Default. The
provisions of 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 the first paragraph of Section 1001 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 AND PAYING AGENTS
Section 1101. Acceptance of Trusts. The Trustee
hereby accepts the trust imposed upon it by this Indenture, and
agrees to perform said trust (i) except during the continuance of
an Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or through
attorneys, agents, receivers or employees, and shall be entitled
to advice of counsel concerning all matters of trusts hereof and
its duties hereunder, and may in all cases pay reasonable
compensation to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of
any attorney, surveyor, engineer or accountant selected by it in
the exercise of reasonable care, or, if selected or retained by
the County prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (g) of this
Section 1101, or of which by said subsection the Trustee is
deemed to have notice, approved by the Trustee in the exercise of
such care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance with
any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any insurance
moneys, or for the validity of the execution by the County of
this Indenture or of any supplemental indentures or instrument of
further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby, or for
the value of the title of the property herein conveyed or
otherwise as to the maintenance of the security hereof; except
that in the event the Trustee enters into possession of a part or
all of the property herein conveyed pursuant to any provision of
this Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions and agreements aforesaid as to the condition of the
property herein conveyed.
(c) The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it, in the
exercise of reasonable care, to be genuine and correct and to
have been signed or sent by the proper person or persons. Any
action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of the owner of any Bond secured
hereby, shall be conclusive and binding upon all future owners of
the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate of the County signed by its County Judge and attested
by the Clerk of the County, as sufficient evidence of the facts
therein contained and prior to the occurrence of a default of
which it has been notified as provided in subsection (g) of this
Section 1101, or of which by that subsection it is deemed to have
notice, and shall also be at liberty to accept a similar
certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its
discretion, at the reasonable expense of the County, in every
case secure such further evidence as it may think necessary or
advisable but shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Clerk of the County under
its seal to the effect that a resolution or ordinance in the form
therein set forth has been adopted by the County as conclusive
evidence that such resolution or ordinance has been duly adopted,
and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty of
the Trustee.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except a
default under clause (a) or (b) of the first paragraph of Section
1001 hereof concerning which the Trustee shall be deemed to have
notice) unless the Trustee shall be specifically notified in
writing of such default by the County or by the holders of at
least ten percent (10%) in aggregate principal amount of Bonds
outstanding hereunder and all notices or other instruments
required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered to the office of the
Trustee, and in the absence of such notice so delivered, the
Trustee may conclusively assume there is no such default except
as aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfillment
of contracts during any period in which it may be in the
possession of ormanaging the real and tangible personal property
as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to
inspect any and all of the property herein conveyed, including
all books, papers and records of the County pertaining to the
Facilities and the Bonds, and to take such memoranda from and in
regard thereto as may be desired, provided, however, that nothing
contained in this subsection or in any other provision of this
Indenture shall be construed to entitle the above named persons
to any information or inspection involving the confidential
know-how of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals, or
other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, deemed desirable for the purpose of
establishing the right of the County to the authentication of any
Bonds, the withdrawal of any cash, the release of any property,
or the taking of any other action by the Trustee.
(l) Before taking such action hereunder, the Trustee
may require that it be furnished an indemnity bond satisfactory
to it for the reimbursement to it of all expenses to which it may
be put and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so taken
by the Trustee.
Section 1102. Fees, Charges and Expenses of Trustee
and Paying Agents. The Trustee and any Paying Agent shall be
entitled to payment and/or reimbursement for reasonable fees for
services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred in and
about the execution of the trusts created by this Indenture. The
County has made provisions in the Loan Agreement for the payment
of such Administration Expenses and reference is hereby made to
the Loan Agreement for the provisions so made. In this regard,
it is understood that the County pledges no funds or revenues
other than those derived from and the avails of the Trust Estate
to the payment of any obligation of the County set forth in this
Indenture, including the obligations set forth in this Section
1102, but nothing herein shall be construed as prohibiting
theCounty from using any other funds and revenues for the payment
of any of its obligations under this Indenture. Upon an Event of
Default, but only upon an Event of Default, the Trustee and the
Paying Agents shall have a first lien with right of payment prior
to payment on account of principal or interest of any Bond issued
hereunder upon the Trust Estate for such reasonable and necessary
advances, fees, costs and expenses incurred by them respectively.
Section 1103. Notice to Bondholders of Default. The
Trustee shall be required to make demand upon and give notice to
the Company and each registered owner of Bonds then outstanding
as follows:
(a) If the Company shall fail to make any installment
payment under the Loan Agreement on the day such payment is due
and payable, the Trustee shall give notice to and make demand
upon the Company on the next succeeding business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 1101(g) deemed to have or
is given notice, the Trustee shall promptly give notice to the
Company and to bondholders.
Section 1104. Intervention by Trustee. In any
judicial proceeding to which the County is a party and which in
the opinion of the Trustee and its counsel has a substantial
bearing on the interests of holders of Bonds issued hereunder,
the Trustee may intervene on behalf of bondholders and shall do
so if requested in writing by the holders of at least ten percent
(10%) of the aggregate principal amount of Bonds outstanding
hereunder. The rights and obligations of the Trustee under this
Section 1104 are subject to the approval of the court having
jurisdiction in the premises.
Section 1105. Merger or Consolidation of Trustee. Any
bank or trust company to which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which it is a party, ipso
facto, shall be and become successor trustee hereunder and vested
with all of the title to the whole property or Trust Estate and
all the trusts, powers, discretions, immunities, privileges, and
all other matters as was its predecessor, without the execution
or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that
such successor trustee shall have capital and surplus of at least
$10,000,000.
Section 1106. Resignation by Trustee. The Trustee and
any successor trustee may at any time resign from the trusts
hereby created by giving thirty (30) days written notice to the
County andto the Company, and such resignation shall take effect
at the end of such thirty (30) days, or upon the earlier
appointment of a successor trustee by the bondholders or by the
County. Such notice may be served personally or sent by
registered mail.
Section 1107. Removal of Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee and to the County, and signed by
the holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
Section 1108. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by the court, a successor
may be appointed by the holders of a majority in aggregate
principal amount of Bonds outstanding hereunder, by an instrument
or concurrent instruments in writing signed by such holders, or
by their attorneys in fact, duly authorized; provided,
nevertheless, that in case of such vacancy the County by an
instrument executed and signed by its County Judge and attested
by its Clerk under its seal, shall appoint a temporary trustee to
fill such vacancy until a successor trustee shall be appointed by
the bondholders in the manner above provided; and any such
temporary trustee so appointed by the County shall immediately
and without further act be superseded by the trustee so appointed
by such bondholders. Every such temporary trustee and every such
successor trustee shall be a trust company or bank in good
standing, having capital and surplus of not less than
$10,000,000.
Section 1109. Concerning Any Successor Trustee. Every
successor or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the County
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the County or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the County be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the County. The
resignation of any trustee and the instrument or
instrumentsremoving any trustee and appointing a successor
hereunder, together with all other instruments provided for in
this Article shall, at the expense of the County, be forthwith
filed and/or recorded by the successor trustee in each recording
office where the Indenture shall have been filed and/or recorded.
Section 1110. Reliance Upon Instruments. The
resolutions, opinions, certificates and other instruments
provided for in this Indenture may be accepted and relied upon by
the Trustee as conclusive evidence of the facts and conclusions
stated therein and shall be full warrant, protection and
authority to the Trustee for its actions taken hereunder.
Section 1111. Appointment of Co-Trustee. The County
and the Trustee shall have power to appoint and upon the request
of the Trustee the County shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another corporation or one or more persons approved by
the Trustee, and satisfactory to the Company so long as there is
no termination of the interest of the Company by virtue of an
event of default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the County shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the County be required
by separate trustee or co-trustee so appointed for more fully and
certainly vesting in and confirming to him or to it 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
County. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights con
ferred upon the Trustee in respect of the custody of
all money and securities pledged or deposited
hereunder, shall be exercised solely by the Trustee;
and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or
co-trustee.
Every instrument, other than this Indenture, appointing
any such co-trustee or separate trustee, shall refer to
thisIndenture and the conditions of this Article XI expressed,
and upon the acceptance in writing by such separate trustee or
co-trustee, he, they or it shall be vested with the estate or
property specified in such instrument, jointly with the Trustee
(except insofar as local law makes it necessary for any separate
trustee to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
Section 1112. Designation and Succession of Paying
Agents. The Trustee and any other banks or trust companies, if
any, designated as Paying Agent or Paying Agents in any
supplemental indenture providing for the issuance of Additional
Bonds as provided in Section 211 hereof or in an instrument
appointing a successor Trustee, shall be the Paying Agent or
Paying Agents for the applicable series of Bonds.
Any bank or trust company with which or into which any
Paying Agent may be merged or consolidated, or to which the
assets and business of such Paying Agent may be sold, shall be
deemed the successor of such Paying Agent for the purposes of
this Indenture. If the position of Paying Agent shall become
vacant for any reason, the County shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the County shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective
provisions in the performance of their duties hereunder as are
specified in Section 1101 hereof with respect to the Trustee
insofar as such provisions may be applicable.
Section 1113. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Paying Agent, and the Bond
Registrar and in any other combination of such capacities, to the
extent permitted by law.
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without
Bondholder Consent. The County and the Trustee may, from time to
time and at any time, without the consent of or notice to the
bondholders, enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the County in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the County which are not
contrary to or inconsistent with this Indenture as
theretofore in effect;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the Revenues
of the County from the Loan Agreement or of any other
moneys, securities or funds;
(e) to authorize the issuance and sale of one or more
series of Additional Bonds;
(f) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(g) to provide for the registration and registration
of transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(h) 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 clause (a), (b), (c), (d), (e) or (f) of
Section 1202 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
Section 1202. Supplemental Indentures Requiring
Bondholder Consent. Subject to the terms and provisions
contained in this Section, and not otherwise, the holders of not
less than a majority in aggregate principal amount of the Bonds
then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the County for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental
indenture; provided, however, that nothing herein contained shall
permit, or be construed as permitting, unless approved by the
holders of all Bonds then outstanding (a) an extension of the
maturity (or mandatory sinking fund or other mandatory redemption
date) of the principal of or the interest on any Bond issued
hereunder, or (b) a reduction in the principal amount of or
redemption premium or rate of interest on any Bond issued
hereunder, or (c) 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 hereinbefore expressly permitted, or
(d) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds, or (e) a reduction in the aggregate principal
amount of the Bonds required for consent to such supplemental
indenture, or (f) depriving the holder of any Bond then
outstanding of the lien hereby created on the Trust Estate.
Nothing herein contained, however, shall be construed as making
necessary the approval of bondholders of the execution of any
supplemental indenture as provided in Section 1201 of this
Article.
If, at any time the County shall request the Trustee to
enter into any supplemental indenture for any of the purposes of
this Section, the Trustee shall, at the expense of the County,
cause notice of the proposed execution of such supplemental
indenture to be mailed by first class mail to each registered
owner of the Bonds. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal corporate trust
office of the Trustee for inspection by bondholders. The Trustee
shall not, however, be subject to any liability to any bondholder
by reason of its failure to mail such notice, and any such
failure shall not affect the validity of such supplemental
indenture when consented to and approved as provided in this
Section. If the holders of not less than a majority in aggregate
principal amount of the Bonds outstanding at the time of the
execution of any such supplemental indenture shall have consented
to and approved the execution thereof as herein provided, no
holder of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution
thereof, or to enjoin or restrain the Trustee or the County from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution ofany such supplemental
indenture, this Indenture shall be deemed to be modified and
amended in accordance therewith.
Section 1203. Consent of Company. Anything herein to
the contrary notwithstanding, a supplemental indenture under this
Article XII shall not become effective unless and until the
Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
Section 1204. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, a supplemental indenture
under this Article XII shall not become effective unless and
until the Trustee shall have received an opinion of Bond Counsel
to the effect that such supplemental indenture will not affect
the exclusion of interest on the Bonds from gross income for
purposes of federal income taxation.
ARTICLE XIII
AMENDMENT TO LOAN AGREEMENT
Section 1301. Amendments Not Requiring Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Loan
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein, which in
the reasonable judgment of the Trustee is not to the prejudice of
the Trustee or the holders of the Bonds. The Trustee shall not
consent to any other amendment, change or modification of the
Loan Agreement without the approval or consent of the holders of
not less than a majority in aggregate principal amount of the
Bonds at the time outstanding, evidenced in the manner provided
in Section 1401 hereof; provided the Trustee shall not, without
the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 1401
hereof, consent to any amendment which would change the
obligations of the Company under Section 5.02 or 5.03 of the Loan
Agreement or the nature of the obligations of the Company on the
First Mortgage Bonds as provided in Section 5.03 of the Loan
Agreement.
Section 1302. Amendments Requiring Consent of
Bondholders. If at any time the County or the Company shall
request the Trustee's consent to a proposed amendment, change or
modification requiring bondholder approval under Section 1301,
the Trustee, shall, at the expense of the requesting party, cause
notice of such proposed amendment, change or modification to the
Loan Agreement to be mailed in the same manner as provided by
Section 1202 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file in the principal
office of the Trustee for inspection by any interested
bondholder. The Trustee shall not, however, be subject to any
liability to any bondholder by reason of its failure to publish
or mail such notice, and any such failure shall not affect the
validity of such amendment, change or modification when consented
to by the Trustee in the manner hereinabove provided.
Section 1303. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, any amendment to the Loan
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
ARTICLE XIV
MISCELLANEOUS
Section 1401. Consents, etc. of Bondholders. Any
request, direction, objection or other instrument required by
this Indenture to be signed and executed by the bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds,
if made in the following manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing
such writing acknowledged before him the execution thereof, or by
an affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and the
date of holding the same shall be proved by the registration
books of the County maintained by the Trustee as Bond Registrar.
Section 1402. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing expressed
or mentioned in or to be implied from this Indenture, or the
Bonds issued hereunder, is intended or shall be construed to give
to any person or company other than the parties hereto, the
Company, and the holders of the Bonds secured by this Indenture
any legal or equitable rights, remedy or claim under or in
respect to this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof being intended to be
and being for the sole exclusive benefit of the parties hereto,
the Company, and the holders of the Bonds hereby secured as
herein provided.
Section 1403. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other
provision or provisionsherein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
Section 1404. Notices. Except as otherwise provided
in this Indenture, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the County, the Company, the Trustee and any Paying
Agent. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 551
Little Rock, Arkansas 72203
Attention: Treasurer
County: Pope County, Arkansas
Pope County Courthouse
100 West Main Street
Russellville, Arkansas 72801
Attention: County Judge
Trustee: Simmons First National Bank
P.O. Box 7009
Pine Bluff, Arkansas 71611
Attention: Corporate Trust Department
Any Paying
Agent other
than the
Trustee: At the address designated to the
County and the Trustee.
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 1405. Applicable Provisions of Law. This
Indenture shall be considered to have been executed in the State
of Arkansas and it is the intention of the parties that the
substantive law of the State of Arkansas govern as to all
questions of interpretation, validity and effect.
Section 1406. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
Section 1407. Successors and Assigns. All the
covenants, stipulations, provisions, agreements, rights, remedies
and claims of the parties hereto in this Indenture contained
shall bind and inure to the benefit of their successors and
assigns.
Section 1408. Captions. The captions or headings in
this Indenture are for convenience only and in no way define,
limit or describe the scope or intent of any provisions or
sections of this Indenture.
Section 1409. Photocopies and Reproductions. A
photocopy or other reproduction of this Indenture may be filed
as a financing statement pursuant to the Uniform Commercial
Code, although the signatures of the County and the Trustee on
such reproduction are not original manual signatures.
Section 1410. Bonds Owned by the County or the
Company. In determining whether bondholders of the requisite
aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which
are owned by the County or the Company or by any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and
deemed not to be outstanding for the purpose of any such
determination, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Bonds which the Trustee knows
are so owned shall be so disregarded. Bonds so owned which have
been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the
pledgee is not the County or the Company or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company. In case of a dispute
as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
Section 1411. 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 be
a legal holiday or a day on which banking institutions in the
city in which is located the principal corporate trust office of
the Trustee are authorized by law to remain closed, such payment
may be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest shall accrue for the period after
such nominal date.
<PAGE>
IN WITNESS WHEREOF, the County has caused these
presents to be signed in its name and behalf by its County Judge
and its corporate seal to be hereunto affixed and attested by its
County Clerk, and, to evidence its acceptance of the trust hereby
created, the Trustee has caused these presents to be signed in
its behalf by its duly authorized officers and its corporate seal
to be hereto affixed.
POPE COUNTY, ARKANSAS
By ___________________________
ATTEST: County Judge
_______________________________
County Clerk
(SEAL)
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
TRUSTEE
By _____________________________
_____________________________
ATTEST: (title)
______________________________
______________________________
(title)
(SEAL)
<PAGE>
EXHIBIT A
Form of Series 1994 Bond
No. ____ $_______
UNITED STATES OF AMERICA
STATE OF ARKANSAS
POPE COUNTY, ARKANSAS
POLLUTION CONTROL REVENUE REFUNDING BOND, SERIES 1994
(ARKANSAS POWER & LIGHT COMPANY PROJECT)
Date of Bond: __________ Maturity Date: December 1, 2016
Interest Rate: 6.30% per annum CUSIP
_________________________
Registered Owner:
_________________________________________________
Principal Amount: _________________________________________
DOLLARS
KNOW ALL MEN BY THESE PRESENTS:
That Pope County, Arkansas, a political subdivision
under the Constitution and laws of the State of Arkansas (the
"County"), for value received, promises to pay to the registered
owner shown above, or registered assigns, but solely from the
source and in the manner hereinafter set forth, on the maturity
date shown above, the principal amount shown above and in like
manner to pay interest on said amount from the date hereof shown
above until such principal amount becomes due and payable, at the
rate per annum shown above, semiannually on June 1 and December 1
of each year commencing on the June 1 or December 1 next
succeeding the date of this Bond, and to pay interest on overdue
principal at the rate of six percent (6%) per annum until paid,
except as the provisions hereinafter set forth with respect to
redemption of this Bond prior to maturity may become applicable
hereto. The principal of and premium, if any, on this Bond are
payable in lawful money of the United States of America upon the
presentation and surrender hereof at the principal corporate
trust office of Simmons First National Bank, Pine Bluff,
Arkansas, or its successor or successors, as Trustee (the
"Trustee"), and interest on this Bond is payable in like money to
the registered owner hereof by check drawn upon the Trustee and
mailed to the person in whose name this Bond is registered at the
close of business on the fifteenth day of the calendar month next
preceding such interest payment date, at his address as it
appears on the bond registration books of the County kept by the
Trustee.
This Bond, designated "Pope County, Arkansas Pollution
Control Revenue Refunding Bond, Series 1994 (Arkansas Power &
Light Company Project)," is one of a series of Bonds in the
aggregate principal amount of Nineteen Million Five Hundred
Thousand Dollars ($19,500,000) (the "Bonds"), issued for the
purpose of refunding the County's Pollution Control Revenue
Bonds, Series 1976, Series 1978 and Special Industrial Series
(Arkansas Power & Light Company Project), which were issued to
finance the cost of acquiring,constructing and equipping certain
pollution control facilities (the "Facilities") at the electric
generating plant of Arkansas Power & Light Company, an Arkansas
corporation (the "Company"), located within the boundaries of the
County and known as Arkansas Nuclear One (the "Plant"), and
paying expenses of issuing such bonds. The Bonds are all issued
under and are all equally and ratably secured and entitled to the
protection given by a Trust Indenture dated as of June 15, 1994
(the "Indenture"), duly executed and delivered by the County to
the Trustee. The Indenture provides that the County may
hereafter issue Additional Bonds from time to time under certain
terms and conditions contained in the Indenture and, if issued,
such Additional Bonds will be equally and ratably secured by and
entitled to the protection of the Indenture. Reference is hereby
made to the Indenture and all indentures supplemental thereto for
the provisions, among others, with respect to the nature and
extent of the security, the rights, duties and obligations of the
County, the Trustee and the registered owners of the Bonds, and
the terms upon which the Bonds are issued and secured. The terms
and conditions of the refinancing of the Facilities, the use of
the proceeds of the Bonds for such purpose, and the payment of
certain amounts thereunder, are contained in a Loan Agreement
dated as of June 15, 1994 (the "Loan Agreement"), by and between
the County and the Company.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Arkansas,
particularly Title 14, Chapter 267 of the Arkansas Code of 1987
Annotated (the "Act"), and pursuant to Orders of the County Court
of the County, which Orders authorized the execution and delivery
of the Indenture. The Bonds do not constitute an indebtedness of
the County within the meaning of any constitutional or statutory
limitation.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS
OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of the Bonds do exist,
have happened and have been performed in due time, form and
manner as required by law; that the indebtedness represented by
the Bonds, together with all obligations of the County, does not
exceed any constitutional or statutory limitation; and that the
above referred to revenues pledged to the payment of the
principal of and premium, if any, and interest on the Bonds as
the same become due and payable will be sufficient in amount for
that purpose.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under the
Indenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, Pope County, Arkansas, has caused
this Bond to be executed by its County Judge and County Clerk,
thereunto duly authorized (by their manual or facsimile
signatures), and its corporate seal to be affixed or imprinted,
all as of the date of this Bond shown above.
POPE COUNTY, ARKANSAS
By ____________________________
ATTEST: County Judge
______________________________
County Clerk
(SEAL)
<PAGE>
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in
and issued under the provisions of the within mentioned
Indenture.
Date of registration and authentication: ____________
SIMMONS FIRST NATIONAL BANK
Pine Bluff, Arkansas
TRUSTEE
By_____________________________
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, __________________________________
("Transferor"), hereby sells, assigns and transfers unto
_______________, the within Bond and all rights thereunder, and
hereby irrevocably constitutes and appoints ________________
("Transferee") as attorney to transfer the within Bond on the
books kept for registration thereof with full power of
substitution in the premises.
DATE: __________________
_________________________________
Transferor
GUARANTEED BY:
______________________
NOTICE: Signature(s) must be guaranteed by a guarantor
acceptable to the Trustee.
(Reverse Side of Series 1994 Bond)
ADDITIONAL PROVISIONS
The Bonds are not general obligations of the County but
are special obligations payable solely from revenues derived from
the Facilities (including particularly payments under the Loan
Agreement). The Loan Agreement provides for payments by the
Company, as a repayment of the loan made by the County to the
Company out of the proceeds of the Bonds, in amounts sufficient
to provide for the payment of the principal of and premium, if
any, and interest on the Bonds as due and payable. Such payments
will be made directly to the Trustee and deposited in a special
account of the County designated "Pope County, Arkansas Pollution
Control Revenue Refunding Bond Fund - Arkansas Power & Light
Company Project," and such payments have been duly assigned to
the Trustee for that purpose. The obligation of the Company to
make such payments is evidenced in part by the Company's first
mortgage bonds issued and delivered to the Trustee as an
additional series under the Mortgage and Deed of Trust dated as
of October 1, 1944, between the Company and Guaranty Trust
Company of New York (Morgan Guaranty Trust Company of New York,
successor) and Henry A. Theis (John W. Flaherty, successor), and,
as to property, real and personal, situated or being in Missouri,
Marvin A. Mueller (The Boatmen's National Bank of St. Louis,
successor), as trustees, as amended and supplemented. All the
rights and interest of the County in and to the Loan Agreement
(except for certain rights specified in the Indenture) have been
assigned under the Indenture to the Trustee to secure the payment
of the principal of and premium, if any, and interest on the
Bonds.
The owner of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to enforce
the covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds and Additional Bonds
issued under the Indenture and then outstanding may be declared
and may become due and payable before the stated maturity
thereof, together with accrued interest thereon.
Modifications or alterations of the Indenture, or of
any indenture supplemental thereto, may be made only to the
extent and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity
as follows:
(a) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, in whole but not
inpart, 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 either unit of the Plant is
impracticable, uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
associated with either unit of the Plant is impracticable,
uneconomical or undesirable due to (A) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Facilities, or other liabilities or burdens with
respect to the Facilities or the construction or operation
thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic
availability of materials, supplies, equipment or labor or
(C) destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of either unit of the
Plant or the Facilities associated with either unit shall
have been condemned or taken by eminent domain; or
(iv) the construction or operation of either unit of
the Plant or the Facilities associated with either unit
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.
(b) 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 as a result of a failure by the Company to perform or
observe any covenant, agreement or representation contained in
the Loan Agreement, the interest payable on the Bonds is included
for federal income tax purposes in the gross income of the
bondholders thereof, other than any bondholder who is a
"substantial user" of the Facilities or a "related person" within
the meaning of Section 147(a) of the Internal Revenue Code of
1986, as amended (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 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. The Bonds
shall be redeemed either in whole or inpart in such principal
amount that the interest payable on the Bonds remaining
outstanding after such redemption would not be included in the
gross income of any bondholder thereof, other than a bondholder
who is a "substantial user" of the Facilities or a "related
person" within the meaning of Section 147(a) of the Code.
(c) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, on and after June
1, 2004, in whole at any time or in part from time to time, by
lot or in such other manner as may be determined by the Trustee
to be fair and equitable, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued
interest to the redemption date:
Redemption
Redemption Period Price
June 1, 2004 through May 31, 2005 102%
June 1, 2005 through May 31, 2006 101%
June 1, 2006 and thereafter 100%
The Bonds shall also be subject to optional redemption by the
County, at the direction of the Company, in whole but not in
part, at any time prior to June 1, 2004, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
In the event any of the Bonds or portions thereof
(which shall be $5,000 or any integral multiple thereof) are
called for redemption, notice thereof shall be given by the
Trustee by first class mail, postage prepaid, to the registered
owner of each such Bond addressed to such registered owner at his
registered address and placed in the mails not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed
for redemption; provided, however, that failure to give such
notice by mailing, or any defect therein, shall not affect the
validity of any proceeding for the redemption of any Bond with
respect to which no such failure or defect has occurred. Each
notice shall identify the Bonds or portions thereof being called,
and the date on which they shall be presented for payment. After
the date specified in such call, the Bond or Bonds so called will
cease to bear interest provided funds sufficient for their
redemption have been deposited with the Trustee, and, except for
the purpose of payment, shall no longer be protected by the
Indenture and shall not be deemed to be outstanding under the
provisions of the Indenture.
With respect to notice of redemption of Bonds at the
option of the County (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
bythe Trustee prior to the giving of such notice, such notice
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
This Bond may be transferred on the books of
registration kept by the Trustee by the registered owner or by
his duly authorized attorney upon surrender hereof, together with
a written instrument of transfer duly executed by the registered
owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without
coupons in denominations of $5,000 and any integral multiple
thereof. Subject to the limitations and upon payment of the
charges provided in the Indenture, Bonds may be exchanged for a
like aggregate principal amount of Bonds of other authorized
denominations.
This Bond is issued with the intent that the laws of
the State of Arkansas will govern its construction.
Exhibit F-1(a)
June 22, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (1) the Application-Declaration on Form
U-1, as amended ("Application-Declaration") filed by Arkansas
Power & Light Company ("Company") (File No. 70-8405) under the
Public Utility Holding Company Act of 1935 contemplating, among
other things, the Company's entering into one or more loan
agreements and/or supplements thereto with one or more
governmental authorities ("Issuer"), and the related issuance by
the Issuer of one or more series of tax-exempt revenue bonds, (2)
the Securities and Exchange Commission's order, dated June 15,
1994, granting and permitting to become effective the Application-
Declaration, as amended, with respect to the foregoing matters,
and (3) the subsequent consummation, on June 22, 1994, of two
separate transactions in which the Company entered into separate
loan agreements (the "Loan Agreements") with Pope County,
Arkansas, and Jefferson County, Arkansas (the "Counties"), and
each of the Counties issued a new series of its 6.30% Pollution
Control Revenue Refunding Bonds, Series 1994 (Arkansas Power &
Light Company Project) (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 Arkansas.
2. The Transactions have been consummated in accordance
with the Application-Declaration and the Order of the Securities
and Exchange Commission with respect thereto.
3. All state laws applicable to the participation of the
Company in the Transactions (other than so-called "blue-sky" laws
or similar laws, upon which we do not pass herein) have been
complied with.
4. The Loan Agreements are valid and binding obligations
of the Company in accordance with their terms, except as limited
by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights.
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 do not hold ourselves
out as experts on the laws of any other state. In giving this
opinion, we have relied, as to all matters governed by the laws
of any other state, upon the opinion of Friday, Eldredge & Clark,
of Little Rock, Arkansas, General Counsel for the Company, which
is to be filed as an exhibit to the Certificate pursuant to Rule
24.
We consent to the use of this opinion as an exhibit to the
Certificate pursuant to Rule 24.
Very truly yours,
/s/ Reid & Priest
REID & PRIEST
f:\home\brendab\apl\rule24op.694
Exhibit F-2(a)
June 22, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are familiar with (1) the Application-Declaration on Form
U-1, as amended ("Application-Declaration") filed by Arkansas
Power & Light Company ("Company") (File No. 70-8405) under the
Public Utility Holding Company Act of 1935 contemplating, among
other things, the Company's entering into one or more loan
agreements and/or supplements thereto with one or more
governmental authorities ("Issuer"), and the related issuance by
the Issuer of one or more series of tax-exempt revenue bonds, (2)
the Securities and Exchange Commission's order, dated June 15,
1994, granting and permitting to become effective the Application-
Declaration, as amended, with respect to the foregoing matters,
and (3) the subsequent consummation, on June 22, 1994, of two
separate transactions in which the Company entered into separate
loan agreements (the "Loan Agreements") with Pope County,
Arkansas, and Jefferson County, Arkansas (the "Counties"), and
each of the Counties issued a new series of its 6.30% Pollution
Control Revenue Refunding Bonds, Series 1994 (Arkansas Power &
Light Company Project) (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 Arkansas.
2. The Transactions have been consummated in accordance
with the Application-Declaration and the Order of the Securities
and Exchange Commission with respect thereto.
3. All state laws applicable to the participation of the
Company in the Transactions (other than so-called "blue-sky" laws
or similar laws, upon which we do not pass herein) have been
complied with.
4. The Loan Agreements are valid and binding obligations
of the Company in accordance with their terms, except as limited
by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights.
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.
In giving this opinion, we have relied, as to all matters
governed by the laws of the State of New York, upon the opinion
of Reid & Priest, of New York, New York, which is to be filed as
an exhibit to the Certificate pursuant to Rule 24.
We consent to the use of this opinion as an exhibit to the
Certificate pursuant to Rule 24.
Very truly yours,
/s/ Friday, Eldredge & Clark
FRIDAY, ELDREDGE & CLARK
