Exhibit A
MISSISSIPPI BUSINESS FINANCE CORPORATION
and
MISSISSIPPI POWER COMPANY
LOAN AGREEMENT
Dated as of December 1, 1999
Relating to
$9,400,000
Revenue Bonds,
Series 1999
(Mississippi Power Company Project)
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Loan Agreement)
PAGE
ARTICLE I: DEFINITIONS......................................1
ARTICLE II: ACQUISITION AND COMPLETION OF THE PROJECTS;
ISSUANCE OF THE BONDS...........................3
SECTION 2.1. Acquisition and Completion of the
Projects ..............................3
SECTION 2.2. Issuance of the Bonds..................3
SECTION 2.3. Establishment of Completion Date.......3
SECTION 2.4. Insufficiency of Construction Fund.....4
ARTICLE III: LOAN BY ISSUER; PROVISIONS FOR PAYMENT..........4
SECTION 3.1. Loan by Issuer........................4
SECTION 3.2. Delivery of Note by Company;
Other Amounts Payable ................4
SECTION 3.3. Obligation of the Company
Unconditional.........................5
SECTION 3.4. Assignment and Pledge of Payments
and Rights Under the Note and
the Agreement.........................5
ARTICLE IV: SPECIAL COVENANTS...............................5
SECTION 4.1. Use of Projects.......................5
SECTION 4.2. Indemnity Against Claims..............5
SECTION 4.3. Inspection of the Projects............6
SECTION 4.4. The Company to Maintain Its Corporate
Existence; Conditions Under Which
Exceptions Permitted..................6
SECTION 4.5. Annual Statement......................6
SECTION 4.6. Further Assurances and Corrective
Instruments...........................7
SECTION 4.7. Maintenance of Projects by Company....7
SECTION 4.8. Redemption or Purchase of Bonds.......7
SECTION 4.9. Non-Arbitrage Covenant................7
SECTION 4.10. Compliance with Indenture.............8
SECTION 4.11. Use of Proceeds.......................8
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES....................8
SECTION 5.1. Events of Default.....................8
SECTION 5.2. Remedies on Default...................9
SECTION 5.3. Agreement to Pay Attorneys'Fees
and Expenses..................... 10
SECTION 5.4. No Additional Waiver Implied by
One Waiver .................... 10
ARTICLE VI MISCELLANEOUS...................................10
SECTION 6.1. Term of This Agreement...............10
SECTION 6.2. Notices..............................10
SECTION 6.3. Binding Effect.......................10
SECTION 6.4. Severability.........................11
SECTION 6.5. Amendments...........................11
SECTION 6.6. Execution in Counterparts............11
SECTION 6.7. Applicable Law.......................11
SECTION 6.8. Captions.............................11
SECTION 6.9. Other Financing......................11
SECTION 6.10. Amounts Remaining in the Bond Fund...11
LOAN AGREEMENT dated as of December 1, 1999 between the MISSISSIPPI
BUSINESS FINANCE CORPORATION, a public corporation duly created and validly
existing pursuant to the Constitution and laws of the State of Mississippi (the
"Issuer"), and MISSISSIPPI POWER COMPANY, a corporation organized and existing
under the laws of the State of Mississippi (the "Company"), evidencing the
agreement of the parties hereto.
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be a general debt,
liability or obligation of the Issuer, or of the State of Mississippi or any
political subdivision thereof but shall be payable solely out of the revenues
and proceeds derived from this Agreement and the Note (as hereinafter defined)
and the sale of the Bonds referred to herein:
ARTICLE I
DEFINITIONS
"Arbitrage Rebate Agreement", "Bondholder", "Bonds", "Business Day",
"Code", "Government Obligations", "outstanding", "Rebate Requirement",
"Remarketing Agent" and "Trustee" have the same meanings given and assigned to
such words in Article I of the Indenture (as hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"Completion Date" means the date of completion of the acquisition,
construction, installation and equipping of the Projects (as hereinafter
defined) as such date shall be certified as provided in Section 2.3 hereof.
"Cost of Construction" with respect to the Projects means the
following:
(a) obligations of the Company incurred for labor and
materials (including re imbursements payable to the Company and
payments on contracts in the name of the Company) in connection with
the acquisition, construction, installation and equipping of the
Projects;
(b) the cost of contract bonds and of insurance of all kinds
that may be required or necessary during the course of construction of
the Projects;
(c) all costs of engineering services, including the costs for
test borings, surveys, estimates, plans and specifications and
preliminary investigation therefor, and for supervising construction,
as well as for the performance of all other duties required by or
consequent upon the proper construction of the Projects;
(d) overheads of the Company, to the extent not included in
subparagraph (c) above, allocable to the Projects by the Company in
accordance with the Uniform System of Accounts prescribed for Public
Utilities and Licensees by the Federal Energy Regulatory Commission;
(e) interest to accrue in respect of the Bonds and on other
indebtedness of the Company which is allocable to the Bonds to the
Completion Date, amounts paid to the United States Treasury pursuant to
Section 148(f) of the Code and the regulations promulgated thereunder,
and the Costs of Issuance; provided, however, that the Costs of
Issuance shall not exceed two percent of the aggregate face amount of
the Bonds, as allowed by the Code;
(f) all other costs which the Company may properly pay or
accrue for the acquisition, construction, installation or equipping of
the Projects; and
(g) any sums required to reimburse the Company for advances
made for any of the above items or for any other costs incurred or for
work done which are properly chargeable to the Projects.
"Costs of Issuance" means all expenses incurred in connection with the
issuance of the Bonds, including without limitation initial compensation and
expenses of the Trustee, legal expenses and fees, costs of printing and
engraving, recording and filing fees, compensation of the underwriters, if any,
and rating agency fees.
"Event of Default" means any of the occurrences enumerated in Section
5.1 of this Agreement.
"Indenture" means the Trust Indenture dated as of December 1, 1999,
relating to Revenue Bonds, Series 1999 (Mississippi Power Company Project),
between the Issuer and Xxxxxxx Bank, as Trustee, pursuant to which the Bonds are
authorized to be issued, and including any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company of the
proceeds (which shall be deemed to include the underwriting discounts, if any,
and original issue discount, if any) of the sale of the Bonds, exclusive of any
accrued interest paid by the initial purchasers of the Bonds upon the delivery
thereof.
"Note" means the non-negotiable promissory note of the Company issued
pursuant to Section 3.2 hereof, in the form set forth in Exhibit A hereto.
"Plans" means the plans and specifications prepared by or on behalf of
the Company for the Projects, as the same may be revised from time to time by
the Company in accordance with the last paragraph of Section 2.1 hereof, which
are on file with the Company and accessible to the Issuer.
"Projects" means the solid waste disposal facilities described in the
Plans and, as designed on the date hereof, described generally in Exhibit B
hereto.
"Qualifying Costs" means any Cost of Construction to the extent that
payment thereof would constitute, within the meaning of Section 142(a)(6) of the
Code and applicable final or proposed Treasury Regulations, the payment of costs
to provide facilities that are solid waste disposal facilities or facilities
functionally related and subordinate thereto.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECTS;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Projects. The Company
agrees to use its best efforts to cause the acquisition, construction,
installation and equipping of the Projects to be completed substantially in
accordance with the Plans with reasonable dispatch, delays incident to "force
majeure" (as defined in Section 5.1 hereof) only excepted. The Projects, in
whole or in part, shall belong to and be the property of the Company.
The Issuer and the Company agree that the Company may at any time or
from time to time supplement or amend the Plans (including additions thereto or
omissions therefrom), provided that such supplements or amendments shall not
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the Bonds.
SECTION 2.2. Issuance of the Bonds. In order to provide funds for the
purpose set forth in Section 3.1 hereof, the Issuer agrees that it will
initially issue and deliver the Bonds to the purchasers thereof at a price to be
approved in advance by the Company and apply and deposit the proceeds thereof in
accordance with the terms of the Indenture. The Indenture shall be satisfactory
in form and substance to the Company and shall provide the manner in which, and
the purposes for which, proceeds of Bonds may be used and invested.
The Issuer has authorized and directed the Trustee to disburse moneys
from the Construction Fund in respect of the Cost of Construction in accordance
with Section 4.10 of the Indenture.
SECTION 2.3. Establishment of Completion Date. The Completion Date
shall be evidenced to the Trustee and the Issuer by a certificate of the
Company: (i) stating that the Projects have been completed substantially in
accordance with the Plans, and (ii) stating that, except for amounts retained by
the Trustee at the Company's direction for any Cost of Construction not then due
and payable or which is in dispute, the entire Cost of Construction has been
paid. Notwithstanding the foregoing, such certificate shall state that it is
given without prejudice to any rights against third parties which exist at the
date of such certificate or which may subsequently come into being.
SECTION 2.4. Insufficiency of Construction Fund. The Issuer does not
make any warranty, either express or implied, that the amounts in the
Construction Fund and available for payment of the Cost of Construction will be
sufficient to pay all of the Cost of Construction. The Company agrees that it
shall pay from its own funds any amounts needed to complete the Projects after
exhaustion of the amounts in the Construction Fund. The Company further agrees
that, if after exhaustion of the amounts in the Construction Fund, it should pay
any portion of the Cost of Construction, it shall not be entitled to any
diminution of the amounts payable under the Note and as provided in Section 3.2
hereof.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to make the
Loan to the Company in order to finance the Cost of Construction of the
Projects.
SECTION 3.2. Delivery of Note by Company; Other Amounts Payable. In
order to evidence the Loan and the obligation of the Company to repay the same,
the Company shall execute and deliver the Note in a principal amount equal to
the aggregate principal amount of the Bonds and providing for payments which
correspond in time and amount with payments due on the Bonds. The Note shall be
dated the date of the initial authentication of, and mature on the same maturity
date as, the Bonds. If (i) on the date any payments on the Bonds are due there
are any available moneys on deposit with the Trustee which are not being held
for the payment of Bonds due and payable but which have not been presented for
payment, or (ii) on any date on which Bonds are required to be purchased
pursuant to the Bonds or Article III of the Indenture, there are available
moneys on deposit with the Trustee held for the payment of the purchase price
which are not being held for the payment of Bonds which have not been presented
for payment, then, in each case, such moneys shall be credited against the
payment then due under the Note, first in respect of interest and then, to the
extent of remaining moneys, in respect of principal.
The Company will also pay: (i) the fees, charges and reasonable
expenses of the Trustee and any paying agents and tender agents under the
Indenture, such fees, charges and reasonable expenses to be paid directly to the
Trustee or paying agents or tender agents, as the case may be, for their
respective accounts as and when such fees, charges and reasonable expenses
become due and payable, (ii) the fees, charges and reasonable expenses of the
Issuer, (iii) all amounts owed under the Arbitrage Rebate Agreement, including
but not limited to the Rebate Requirement, and (iv) any expenses in connection
with any redemption of the Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The obligation of
the Company to make payments as provided in the Note and to perform and observe
the other agreements on its part contained herein shall be absolute and
unconditional notwithstanding any change in the tax or other laws of the United
States of America or of the State of Mississippi or any political subdivision of
either thereof or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing contained in this
Section 3.3 shall be construed to release the Issuer from the performance of any
of the agreements on its part herein contained; and, in the event the Issuer
should fail to perform any such agreement on its part, the Company may institute
such action against the Issuer as the Company may deem necessary to compel
performance or recover damages for nonperformance so long as such action shall
not violate the agreements on the part of the Company contained in the preceding
sentence, but in no event shall the Company be entitled to any diminution of the
amounts payable under the Note and as provided in Section 3.2 hereof.
SECTION 3.4. Assignment and Pledge of Payments and Rights Under the
Note and the Agreement. The Issuer shall assign to the Trustee as security under
the Indenture all rights, title and interests of the Issuer in and to (i) the
Note and all payments thereunder and (ii) this Agreement and all moneys
receivable hereunder (except for payments to the Issuer under the second
paragraph of Section 3.2 and under Sections 4.2 and 5.3 hereof). The Company
assents to such assignment and hereby agrees that, as to the Trustee, its
obligations to make such payments shall be absolute and shall not be subject to
any defense or any right of set-off, counterclaim or recoupment arising out of
any breach by the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or liability at any
time owing to the Company by the Issuer or the Trustee.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Projects. The Issuer hereby acknowledges that it
shall have no rights to the use or possession of the Projects. The Issuer hereby
further acknowledges that the Projects will not constitute any part of the
security for the Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will pay and
discharge and will indemnify and hold harmless the Issuer and the Trustee and
their respective officers, employees and agents from (a) any lien or charge upon
payments by the Company to the Issuer under the Note or hereunder, (b) any
taxes, assessments, impositions and other charges upon payments by the Company
to the Issuer under the Note or hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the transactions
contemplated by this Agreement and the Indenture, including the reasonable fees
and expenses of counsel (in each case provided in this Section with respect to
the Trustee and its officers, employees and agents, only in the absence of
negligence or willful misconduct). If any such lien or charge is sought to be
imposed upon payments, or any such taxes, assessments, impositions or other
charges are sought to be imposed, or any such liability, damages, costs and
expenses are sought to be imposed, the Issuer or the Trustee, as the case may
be, will give prompt notice to the Company, and the Company shall have the sole
right and duty to assume, and will assume, the defense thereof, with full power
to litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. Inspection of the Projects. The Company agrees that the
Issuer and its duly authorized agents may at reasonable times enter upon the
sites of the Projects and examine and inspect the Projects and the books and
records of the Company with respect to the Projects.
SECTION 4.4. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees that during the
term of this Agreement it will maintain its corporate existence and
qualification to do business in the State of Mississippi, will not dissolve or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided, that the Company
may, without violating the agreements contained in this Section 4.4, consolidate
with or merge into another domestic corporation (i.e., a corporation
incorporated and existing under the laws of one of the states of the United
States of America or under the laws of the United States of America) or permit
one or more other corporations to consolidate with or merge into it, or sell or
otherwise transfer to another domestic corporation all or substantially all of
its assets as an entirety and thereafter dissolve, provided that, in the event
the Company is not the surviving, resulting or transferee corporation, as the
case may be, (i) the surviving, resulting or transferee corporation assumes,
accepts and agrees in writing to pay and perform all of the obligations of the
Company herein and under the Note and is a Mississippi corporation or is
qualified to do business in the State of Mississippi as a foreign corporation
and (ii) such consolidation, merger or transfer of assets does not result in the
loss of the exclusion from gross income for federal income tax purposes of
interest on the Bonds.
SECTION 4.5. Annual Statement. The Company agrees to have an annual
audit made by its regular independent public accountants and within 180 days
after the close of each fiscal year to timely furnish the Trustee and any
Bondholder who may so request a balance sheet and statement of income and
surplus showing the financial condition of the Company and its consolidated
subsidiaries, if any, at the close of such fiscal year and the results of
operations of the Company and its consolidated subsidiaries, if any, for such
fiscal year, accompanied by a certificate or opinion of said accountants. The
requirements of this Section 4.5 may be satisfied by the submission to the
Trustee and each Bondholder who may request such information of the Company's
annual report to its shareholders, provided such annual report contains the
information required by the preceding sentence.
SECTION 4.6. Further Assurances and Corrective Instruments. The Issuer
and the Company agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Projects and for
carrying out the intention or facilitating the performance of this Agreement and
the Note.
SECTION 4.7. Maintenance of Projects by Company. The Company agrees
that during the term of this Agreement it will pay all costs of operating,
maintaining and repairing the Projects; provided, however, that the Company
shall not be under any obligation to renew, repair or replace any inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary portion of the
Projects. In any instance where the Company determines that any portion of the
Projects has become inadequate, obsolete, worn-out, unsuitable, undesirable or
unnecessary, the Company may remove such portion of the Projects and sell,
trade-in, exchange or otherwise dispose of such removed portion without any
notice to or responsibility or accountability to the Issuer, the Trustee or the
Bondholders therefor.
SECTION 4.8. Redemption or Purchase of Bonds. The Issuer shall take all
steps then necessary under the applicable provisions of the Indenture for the
redemption or purchase (other than a purchase pursuant to tenders as provided in
the form of Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days (or such shorter period
as is acceptable to the Trustee) prior to the day on which the Trustee is
required to give notice (if any) thereof pursuant to the Indenture, by the
Issuer and the Trustee from the Company of a written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase; and
(c) in the case of a redemption of Bonds, directions to mail a
notice of redemption.
In the case of a purchase of Bonds, the written notice to the Trustee
shall, if available moneys on deposit with the Trustee are insufficient to
purchase the principal amount of Bonds specified in (a) above, be accompanied by
a deposit with the Trustee of cash or Government Obligations sufficient,
together with other available moneys on deposit with the Trustee, to make the
directed purchase of Bonds.
SECTION 4.9. Non-Arbitrage Covenant. The Company and the Issuer each
covenants that it shall take no action, nor shall the Company direct the
Trustee's taking any action or making any investment or use of the proceeds of
the Bonds or any other moneys, which would cause the Bonds to be treated as
"arbitrage bonds" within the meaning of Section 148 of the Code and the
proposed, temporary or final regulations thereunder as such may be applicable or
proposed to be applicable to the Bonds at the time of such action, investment or
use.
Without limiting the generality of the foregoing, the Company covenants
and agrees to comply with the requirements of Section 148(f) of the Code and any
proposed, temporary or final regulations thereunder as may be applicable to the
Bonds or the proceeds derived from the sale of the Bonds or any other moneys.
SECTION 4.10. Compliance with Indenture. The Company agrees to perform
and comply with all provisions of the Indenture applicable to it. In addition,
the Company shall have and enjoy all rights and options granted to it by the
Indenture.
SECTION 4.11. Use of Proceeds. The Company hereby covenants that at
least 95% of the proceeds of the Bonds will be used to pay Costs of Construction
of the Projects which constitute Qualifying Costs.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall be an
"Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the amounts
required to be paid pursuant to the Note which failure, in the case of
such amounts in respect of interest on any Bond, continues for five
days, or the failure by the Company to pay within 30 days of the date
due any other amounts required to be paid pursuant to this Agreement.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed hereunder, other than as referred to in subsection (a) of
this Section 5.1, for a period of 90 days after written notice,
specifying such failure and requesting that it be remedied, is given to
the Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period prior to
its expiration; provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, the Issuer and the
Trustee will not unreasonably withhold their consent to an extension of
such period if corrective action is instituted by the Company within
the applicable period and diligently pursued.
(c) The dissolution or liquidation of the Company, except as
permitted by Section 4.4 hereof, or the commencement by the Company of
any case or proceeding seeking to have an order for relief entered on
its behalf as a debtor or to adjudicate it as bankrupt or insolvent or
seeking reorganization, liquidation, dissolution, winding-up,
arrangement, composition, readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other similar law
of the United States or any state, or adjudication of the Company as
bankrupt, or an assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in any proceeding
for its reorganization instituted under the provisions of Title 11 of
the United States Code, as amended, or under any similar statutory
provision which may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the limitation that,
if by reason of force majeure the Company is unable in whole or in part to carry
out its agreements herein contained other than those set forth in Sections 4.4
and 4.9 hereof, an Event of Default shall not be deemed to have occurred during
the continuance of such inability. The term "force majeure" as used herein shall
mean the following: acts of God; strikes; lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the government of
the United States or of the State of Mississippi or any of their departments,
agencies or officials or of any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire; hurricanes;
tornadoes; storms; floods; washouts; droughts; arrests; restraints of government
and people; civil disturbances; explosions; breakage or accident to machinery,
transmission lines, pipes or canals; partial or entire failure of utilities; or
any other cause or event not reasonably within the control of the Company. The
Company agrees, however, to remedy to the extent practicable with all reasonable
dispatch the effects of any force majeure preventing the Company from carrying
out its agreements; provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the Company,
and the Company shall not be required to make settlement of strikes, lockouts
and other industrial disturbances by acceding to the demands of the opposing
party or parties when such course is in the judgment of the Company unfavorable
to the Company.
SECTION 5.2. Remedies on Default. Whenever any Event of Default shall
have occurred and be continuing, the Issuer may, in addition to any other remedy
now or hereafter existing at law, in equity or by statute, take either or both
of the following remedial steps:
(a) By written notice to the Company, the Issuer may declare
all amounts payable pursuant to the Note to be immediately due and
payable, whereupon the same shall become immediately due and payable;
(b) The Issuer may take whatever action at law or in equity
may appear necessary or desirable to collect the amounts referred to in
(a) above then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of
the Company under this Agreement.
Any amounts collected pursuant to action taken under this Section 5.2 shall be
deposited with the Trustee and applied in accordance with the provisions of the
Indenture or, if the Bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture) and
the fees and expenses of the Trustee and the paying agents and all other amounts
required to be paid under the Indenture shall have been paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should breach any of the provisions of the Note or this
Agreement and the Issuer or the Trustee should employ attorneys or incur other
expenses for the collection of amounts payable hereunder or the enforcement of
performance or observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees that it will on demand therefor pay
to the Issuer or the Trustee, as the case may be, the reasonable fees of such
attorneys and such other reasonable expenses so incurred by the Issuer or the
Trustee.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in the Note or in this Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall remain in
full force and effect from the date hereof until such time as all of the
outstanding Bonds shall have been fully paid or provision made therefor in
accordance with the provisions of the Indenture, whichever shall first occur,
and the fees and expenses of the Trustee, the Issuer and any paying agents and
tender agents and all other amounts payable by the Company under this Agreement
and the Note shall have been paid.
SECTION 6.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid, addressed as
follows: if to the Issuer, at 1306 Xxxxxx Xxxxxxx Building, 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Executive Director; if to the Company, at
0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Treasurer,
with copies to Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance Department; and if to the
Trustee, at 0000 00xx Xxxxxx, 0 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Trust Department. A duplicate copy of each notice, certificate or
other communication given hereunder by either the Issuer or the Company to the
other shall also be given to the Trustee. The Issuer, the Company and the
Trustee may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other communications
shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding upon the Issuer, the Company and their respective
successors and assigns, subject, however, to the limitations contained in
Section 4.4 hereof, and shall inure to the benefit of the Trustee to the extent
stated herein.
SECTION 6.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 6.5. Amendments. This Agreement may not be effectively
terminated except in accordance with the provisions hereof and may not be
effectively amended except by a written agreement in accordance with Article XI
of the Indenture and signed by the parties hereto.
SECTION 6.6. Execution in Counterparts. This Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 6.7. Applicable Law. This Agreement and the Note shall be
governed by and construed in accordance with the laws of the State of
Mississippi.
SECTION 6.8. Captions. The captions or headings in this Agreement
are for convenience only and in no way define, limit ordescribe the scope or
intent of any provisions or sections of this Agreement.
SECTION 6.9. Other Financing. Notwithstanding anything in this
Agreement to the contrary, the Issuer and the Company may hereafter enter into
agreements to provide for the financing or refinancing of costs of the Projects
or any portion thereof.
SECTION 6.10. Amounts Remaining in the Bond Fund. Any amounts remaining
in the Bond Fund upon termination of this Agreement shall, to the extent
provided in Section 4.14 of the Indenture, belong to and be paid to the Company
by the Trustee.
IN WITNESS WHEREOF, the Issuer 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.
MISSISSIPPI BUSINESS FINANCE CORPORATION
[SEAL] By: ___________________________________
Executive Director
ATTEST:
_______________________________
Secretary
MISSISSIPPI POWER COMPANY
[SEAL] By: __________________________________
Vice President, Secretary, Treasurer
and Chief Financial Officer
ATTEST:
_______________________________
STATE OF _____________ )
) ss:
COUNTY OF ___________ )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ______ day of December, 1999, within my
jurisdiction, the within named Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx Xxxxx, Sr., who
acknowledged that they are the Executive Director and Secretary, respectively,
of the Mississippi Business Finance Corporation, and that in said representative
capacities they executed the above and foregoing instrument, after first having
been duly authorized so to do.
[SEAL] _______________________________
Notary Public
My Commission Expires:
_____________________
STATE OF ___________________ )
) ss
COUNTY OF ___________________ )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ______ day of December, 1999, within my
jurisdiction, the within named Xxxxxxx X. Southern and Xxxxx X. Xxxxxx who
acknowledged that they are the Vice President and Assistant Secretary,
respectively, of Mississippi Power Company, a Mississippi corporation, and that
for and on behalf of the said corporation and as its act and deed they executed
the above and foregoing instrument, after first having been duly authorized by
said corporation so to do.
[SEAL] ____________________________
Notary Public
My Commission Expires:
______________________
EXHIBIT A
MISSISSIPPI POWER COMPANY
PROMISSORY NOTE
MISSISSIPPI POWER COMPANY ("Mississippi"), a corporation organized and
existing under the laws of the State of Mississippi, acknowledges itself
indebted and for value received hereby promises to pay to the order of the
Mississippi Business Finance Corporation (the "Issuer"), and its successors and
assigns, the principal sum of NINE MILLION FOUR HUNDRED THOUSAND DOLLARS
($9,400,000) together with interest on the unpaid principal balance thereof from
the date hereof until Mississippi's obligations with respect to the payment of
such sum shall be discharged at the rate or rates borne by the Bonds referred to
below. As additional interest hereon there shall be payable, and Mississippi
promises to pay when due, amounts which shall equal the premium, if any, due on
such Bonds in connection with the redemption thereof. Mississippi further
promises to pay the purchase price of such Bonds as hereinbelow provided.
This Note is issued to evidence the Loan (as defined in the Agreement
hereinafter referred to) of the Issuer to Mississippi and the obligation of
Mississippi to repay the same and shall be governed by and be payable in
accordance with the terms and conditions of a loan agreement (the "Agreement")
between the Issuer and Mississippi dated as of December 1, 1999, pursuant to
which the Issuer has loaned to Mississippi the proceeds of the sale of the
Issuer's $9,400,000 of Revenue Bonds, Series 1999 (Mississippi Power Company
Project) (the "Bonds"). This Note (together with the Agreement) has been
assigned to Xxxxxxx Bank (the "Trustee"), acting pursuant to a trust indenture
dated as of December 1, 1999 (the "Indenture") between the Issuer and the
Trustee, and may not be assigned by the Trustee except to a successor Trustee
pursuant to the terms of the Indenture. Such assignment is made as security for
the Bonds. The Bonds are dated and bear interest in accordance with the
provisions of the Indenture, and mature on December 1, 2027. The Bonds are
subject to redemption prior to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon are to be
made by paying to the Trustee, as assignee of the Issuer, in funds which will be
immediately available on the day payment is due, amounts which, and at or before
times which, shall correspond to the payments with respect to the principal of
and premium, if any, and interest on the Bonds whenever and in whatever manner
the same shall become due, whether at stated maturity, upon redemption or
declaration or otherwise, and the purchase price of Bonds required to be
purchased under the Indenture. If (i) on the date any payments on the Bonds are
due there are any available moneys on deposit with the Trustee which are not
being held for the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are required to be
purchased pursuant to the Bonds or Article III of the Indenture, there are
available moneys on deposit with the Trustee held for the payment of the
purchase price which are not being held for the payment of Bonds which have not
been presented for payment, then, in each case, such moneys shall be credited
against the payment then due hereunder, first in respect of interest and then,
to the extent of remaining moneys, in respect of principal. Upon the occurrence
of an Event of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable as provided in
the Agreement.
Neither the officers of Mississippi nor any persons executing this Note
shall be liable personally or shall be subject to any personal liability or
accountability by reason of the issuance hereof.
IN WITNESS WHEREOF, Mississippi Power Company has caused this Note to
be executed in its corporate name and on its behalf by its President, its
Treasurer or a Vice President by his manual signature, and its corporate seal to
be impressed hereon and attested by the manual signature of its Secretary or an
Assistant Secretary, all as of the date first above written.
MISSISSIPPI POWER COMPANY
[SEAL]
By: ____________________________________
Vice President, Secretary, Treasurer
and Chief Financial Officer
Attest: ___________________________________
Assistant Secretary
ASSIGNMENT
For value received, pay this promissory note to the order of Xxxxxxx
Bank, Gulfport, Mississippi, as Trustee under the Trust Indenture, dated as of
December 1, 1999, between the Mississippi Business Finance Corporation and
Xxxxxxx Bank, Gulfport, Mississippi, as Trustee, securing the payment of
Mississippi Business Finance Corporation Revenue Bonds, Series 1999 (Mississippi
Power Company Project), in the original principal amount of $9,400,000 without
recourse.
MISSISSIPPI BUSINESS FINANCE CORPORATION
By: ____________________________________
Executive Director
EXHIBIT B
DESCRIPTION OF THE PROJECTS
The following solid waste disposal facilities acquired, constructed,
installed or equipped by Mississippi Power Company:
A. in connection with the Xxxxxx X. Xxxxxx Xx. Electric Generating Plant
located in Xxxxxxx County, Mississippi, the major components include the
modification of fly ash hoppers, the addition of fly ash xxxxxx vibrators and
associated components, the installation of electrical and mechanical
auxiliaries, the construction of associated structures and the installation of
related controls and instrumentation.
B. in connection with the Xxxx Xxxxxx Electric Generating Plant located in
Xxxxxxxx County, Mississippi, the major components include the construction of a
slurry wall constructed around the 6,700 linear feet of the 10,000 linear foot
of dike surrounding the ash disposal pond. In addition, this project includes
discharge structure modifications to control the amount of effluent exiting the
ash disposal pond.
C. all of such facilities are for the collection, handling and disposal of
solid waste.
