Exhibit B-6(a)
Refunding Agreement
between
Independence County, Arkansas
and
Entergy Mississippi, Inc.
Dated as of May 1, 1999
$30,000,000
Independence County, Arkansas
Pollution Control Revenue Refunding Bonds
(Entergy Mississippi, Inc. Project)
Series 1999
Refunding Agreement
This Refunding Agreement dated as of May 1, 1999 by and
between Independence County, Arkansas, a political subdivision of
the State of Arkansas (the "Issuer"), and Entergy Mississippi,
Inc., a corporation organized under the laws of the State of
Mississippi (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Arkansas, authorized and empowered by law, including
particularly the provisions of Title 14, Chapter 267 of the
Arkansas Code of 1987 Annotated, as amended (the "Act"), to issue
its revenue bonds for the purpose of using the funds derived from
the sale thereof to finance and refinance the acquisition,
construction, reconstruction, extension, equipment or improvement
of pollution control facilities for the disposal or control of
sewage, solid waste, water pollution, air pollution, or any
combination thereof; and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of July 1, 1982 (the "1982 Indenture") by and
between the Issuer and The Bank of New York (successor to Deposit
Guaranty National Bank), as trustee (the "Prior Trustee"), the
Issuer issued its Pollution Control Revenue Bonds, 1982 Series A,
B and C (Mississippi Power & Light Company Project) (the "1982
Bonds") in the aggregate principal amount of $15,000,000 for the
purpose of providing funds to finance the cost of acquiring,
constructing and equipping the Company's interest in certain
pollution control facilities (collectively, the "Facilities") at
the electric generating plant jointly owned by the Company and
others located within the boundaries of the Issuer near Newark,
Arkansas and known as the Independence Steam Electric Station
(the "Plant"); and
WHEREAS, pursuant to the provisions of the Act and a Trust
Indenture dated as of December 1, 1982 (the "1982-A Indenture")
by and between the Issuer and the Prior Trustee, the Issuer
issued its Pollution Control Revenue Bonds, 1982-A Series A and B
(Mississippi Power & Light Company Project) (the "1982-A Bonds")
in the aggregate principal amount of $15,000,000 for the purpose
of providing funds to finance the cost of acquiring, constructing
and equipping the Company's interest in the Facilities at the
Plant; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds are herein
collectively called the "Prior Bonds"; and
WHEREAS, the 1982 Bonds and the 1982-A Bonds were initially
issued as adjustable rate bonds but were converted to fixed rate
bonds pursuant to the provisions of the 1982 Indenture and the
1982-A Indenture, respectively; and
WHEREAS, in furtherance of the statutory purposes of the
Act, the Issuer entered into separate Installment Sale Agreements
pertaining to the 1982 Bonds and the 1982-A Bonds, dated as of
July 1, 1982 and December 1, 1982, respectively, with the
Company, pursuant to which the Issuer acquired the Facilities
from the Company and resold the Facilities to the Company, as
more fully described therein; and
WHEREAS, $15,000,000 of the 1982 Bonds and $15,000,000 of
the 1982-A Bonds are outstanding, and the Company has requested
that the Issuer refund such outstanding 1982 Bonds and 1982-A
Bonds in order to achieve interest cost savings through the
issuance by the Issuer of $30,000,000 aggregate principal amount
of its Pollution Control Revenue Refunding Bonds (Entergy
Mississippi, Inc. Project) Series 1999 (the "Bonds"); and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue the Bonds for the
purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of the Bonds by
the Issuer, the Company will agree to make payments in an amount
sufficient to pay the principal of, premium, if any, Purchase
Price and interest on the Bonds pursuant to this Refunding
Agreement, said Bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Refunding Agreement and any moneys held under the hereinafter
defined Indenture, and said Bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Arkansas, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Refunding
Agreement under the Act have been in all respects duly and
validly authorized by order of the County Court of the Issuer,
duly entered;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words and
terms elsewhere defined in this Refunding Agreement or in the
Indenture, the following words and terms as used in this
Refunding Agreement shall have the following meanings unless the
context or use indicates another or different meaning:
"Act" means Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended, and all future acts supplemental
thereto or amendatory thereof.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Refunding
Agreement, the Indenture and any transaction or event
contemplated by this Refunding Agreement or the Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any Paying Agent, any Co-Paying
Agent, any Authenticating Agent, the Remarketing Agent, the
Market Agent, the Auction Agent, the Broker-Dealers and the Bond
Registrar under the Indenture.
"Bonds" means the $30,000,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Entergy Mississippi,
Inc. Project) Series 1999 authorized to be issued under the
Indenture. "Bond" means any one of such Bonds.
"Business Day" or "business day" means any day other than
(i) a Saturday or Sunday or legal holiday or a day on which
banking institutions in the city of New York, New York or in the
city in which the Principal Offices of the Trustee or the Paying
Agent are located are authorized or required by law to close or
(ii) a day on which the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Entergy Mississippi, Inc., a Mississippi
corporation, and its permitted successors and assigns.
"Company Mortgage" shall mean the Company's Mortgage and
Deed of Trust dated as of February 1, 1988, to Bank of Montreal
Trust Company, as corporate trustee, and Xxxx X. XxXxxxxxxx
(successor to Z. Xxxxxx Xxxxxxxxx), as co-trustee, as heretofore
and hereafter amended and supplemented, including the Fourteenth
Supplemental Indenture dated as of May 1, 1999, pursuant to which
the General and Refunding Bonds will be issued.
"Company Mortgage Trustees" means the trustees under the
Company Mortgage.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds and the General and Refunding
Bonds, including, without limitation, financial, legal and
accounting fees, expenses and disbursements, rating agency fees,
the Issuer's expenses attributable to the issuance of the Bonds,
the cost of printing, engraving and reproduction services, the
costs of obtaining the Bond Insurance Policy, including the
premium and other fees and expenses charged by the Bond Insurer,
the initial fees and expenses of the Broker-Dealers and the
Auction Agent as provided in the Broker-Dealer Agreement or the
Auction Agent Agreement, respectively, and the initial or
acceptance fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means, collectively, the Company's interest in
certain pollution control facilities at the Plant, financed in
part with the proceeds of the Prior Bonds.
"General and Refunding Bonds" shall mean the series of bonds
issued and delivered under the Company Mortgage and held by the
Trustee pursuant to Section 4.3 hereof.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of May 1,
1999 between the Issuer and the Trustee securing the Bonds, and
any amendments and supplements thereto.
"Issue Date" means, for each Bond, the actual date of first
authentication and delivery of the Bonds.
"Issuer" means Independence County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas.
"Outstanding" or "outstanding", in connection with Bonds
means, as of the time in question, all Bonds authenticated and
delivered under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled
under Section 2.11 of the Indenture;
(b) Bonds which are deemed to have been paid in accordance
with Article XV of the Indenture;
(c) Bonds in lieu of or in exchange or in substitution for
which other Bonds have been authenticated and delivered pursuant
to Article II of the Indenture;
(d) Bonds registered in the name of the Issuer; and
(e) On or after any Purchase Date for Bonds pursuant to
Article IV of the Indenture, all Bonds (or portions of Bonds)
which are tendered or deemed to have been tendered for purchase
on such date, provided that funds sufficient for such purchase
are on deposit with the Paying Agent.
In determining whether the owners of a requisite aggregate
principal amount of Bonds outstanding have concurred in any
request, demand, authorization, direction, notice, consent or
waiver under the provisions of the Indenture, Bonds which are
held by or on behalf of the Company or any affiliates thereof
(unless all of the outstanding Bonds are then owned by said
parties) shall be disregarded for the purpose of any such
determination. Notwithstanding the foregoing, Bonds so owned
which have been pledged in good faith shall not be disregarded as
aforesaid if the pledge has established to the satisfaction of
the Bond Registrar the pledge's right so to act with respect to
such Bonds and that the pledge is not the Company or an affiliate
thereof.
"Paying Agent", "paying agent", "Co-Paying Agent" or "co-
paying agent" means any national banking association, bank or
trust company appointed pursuant to Section 9.1 of the Indenture.
The Trustee is the original Paying Agent.
"Plant" means the electric generating plant jointly owned by
the Company and others located within the boundaries of the
County near Newark, Arkansas and known as the Independence Steam
Electric Station.
"Prior Bonds" means, collectively, the 1982 Bonds and the
1982-A Bonds referred to in the preamble hereof.
"Prior Indenture" means, collectively, the 1982 Indenture
and the 1982-A Indenture referred to in the preamble hereof.
"Prior Trustee" means The Bank of New York (successor to
Deposit Guaranty National Bank), and its successors and assigns,
referred to in the preamble hereof.
"Purchase Price" for any Bond shall equal 100% of the
principal amount of such Bond plus accrued interest, if any, plus
in the case of a Bond converted from a Multiannual Rate Period on
a date when such Bond is also subject to optional redemption at a
premium, an amount equal to the premium that would be payable on
such Bond if redeemed on such date.
"Refunding Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Refunding Date" means July 1, 1999, or such later date as
may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of delivery of the Bonds to the Underwriters.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Release Date" means the date, if any, on which the General
and Refunding Bonds are surrendered by the Trustee pursuant to
Section 4.3(g) hereof.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses of the Indenture.
"Trustee" means Chase Bank of Texas, National Association,
as trustee under the Indenture, and its successors as trustee.
SECTION 1.2. Use of Words and Phrases. The words
"herein", "hereby", "hereunder", "hereto", "hereof",
"hereinabove", "hereinafter", and other equivalent words and
phrases refer to this Refunding Agreement and not solely to the
particular portion thereof in which any such word is used. The
definitions set forth in Section 1.1 hereof include both singular
and plural. Whenever used herein, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
SECTION 1.3. Nontaxability. It is intended by the parties
hereto that this Refunding Agreement and all action taken
hereunder be consistent with and pursuant to the ordinance of the
governing authority of the Issuer relating to the Bonds, and that
the interest on the Bonds be excluded from the gross income of
the recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations and Warranties of the Issuer.
The Issuer makes the following representations and warranties as
the basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State
of Arkansas, duly existing pursuant to the constitution and
laws of such State and is authorized and empowered by the
provisions of the Act and other constitutional and statutory
authority supplemental thereto, to issue the Bonds.
(b) The Issuer has full power and authority to enter
into this Refunding Agreement and the Indenture and to carry
out its obligations under this Refunding Agreement and the
Indenture and the transactions contemplated hereby and
thereby.
(c) The Issuer has duly authorized the execution and
delivery of this Refunding Agreement and the Indenture and
the issuance and sale of the Bonds.
(d) The Bonds are issued under and secured by the
Indenture, pursuant to which the interest of the Issuer in
this Refunding Agreement and the amounts payable under this
Refunding Agreement (other than indemnification and expense
reimbursement rights) are assigned to the Trustee as
security for the payment of the principal of, premium, if
any, Purchase Price and interest on the Bonds.
(e) Neither the execution and delivery of this
Refunding Agreement or the Indenture, nor the assignment of
this Refunding Agreement to the Trustee, nor the
consummation of the transactions contemplated by this
Refunding Agreement or the Indenture, nor the fulfillment of
or compliance with the terms and conditions of this
Refunding Agreement or the Indenture, results or will result
in the violation of any governmental order applicable to the
Issuer, or conflicts or will conflict with or results or
will result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which the
Issuer is now a party or by which it is bound, or
constitutes or will constitute a default under any of the
foregoing.
SECTION 2.2. Representations and Warranties of the
Company. The Company hereby makes the following representations
and warranties as the basis for the undertakings on the part of
the Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and
in good standing under the laws of the State of Mississippi,
is in good standing and duly qualified to do business in the
State of Arkansas, is not in violation of any provision of
its Restated Articles of Incorporation or its Bylaws, has
power to enter into this Refunding Agreement and to perform
and observe the agreements and covenants on its part
contained herein, including, without limitation, the power
to issue the General and Refunding as contemplated herein
and in the Company Mortgage, and has duly authorized the
execution and delivery of this Refunding Agreement by proper
corporate action.
(b) Neither the execution and delivery of this
Refunding Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Refunding Agreement,
including, without limitation, the issuance and delivery of
the General and Refunding, conflicts with or results in a
breach of the terms, conditions or provisions of any
restriction or any agreement or instrument to which the
Company is now a party or by which the Company is bound, or
constitutes a default under any of the foregoing, or results
in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of
the Company except any interests created therein under the
Indenture or under the Company Mortgage.
(c) This Refunding Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to laws
relating to bankruptcy, moratorium, insolvency or
reorganization and similar laws affecting creditors' rights
generally.
(d) Except as shall have been disclosed in the
Disclosure Documents, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or the assets,
properties or operations of the Company which, if determined
adversely to the Company or its interests, (1) would
materially adversely affect the consummation of the
transactions contemplated by this Refunding Agreement, (2)
would adversely affect the validity of this Refunding
Agreement or (3) could have a material adverse effect upon
the financial condition, assets, properties or operations of
the Company.
(e) No event has occurred and no condition exists with
respect to the Company that would constitute an Event of
Default under this Refunding Agreement or which, with the
lapse of time or with the giving of notice or both, could
reasonably be expected to become an "Event of Default"
hereunder.
(f) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Refunding Agreement
which require said approval, and no other consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $30,000,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund in accordance with the Indenture.
SECTION 3.2. Investment of Funds; Non-Arbitrage Covenant.
Any moneys held as part of the Bond Fund shall be invested,
reinvested or applied by the Trustee in accordance with and
subject to the conditions of Article VII of the Indenture. The
Company and the Issuer shall make no use of the proceeds of the
Bonds, or any funds which may be deemed to be proceeds of the
Bonds pursuant to Section 148 of the Code and the applicable
regulations thereunder, which would cause the Bonds to be
"arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
SECTION 3.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the Prior Trustee, in funds available to the
Prior Trustee on or prior to the Refunding Date, for deposit into
the respective bond funds created under the Prior Indenture
securing the Prior Bonds and in accordance with the terms of the
Prior Indenture, any amount necessary to pay the Prior Bonds in
the principal amounts set forth in Section 5.2 of the Indenture,
together with the premium, if any, and accrued interest due
thereon on the Refunding Date, to the extent that the amount
delivered by the Issuer pursuant to Section 3.1 hereof is
insufficient for such purpose.
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS;
GENERAL AND REFUNDING BONDS
SECTION 4.1. Deposit of Bond Proceeds. Concurrently with
the delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Refunding Agreement, deposit
all of the proceeds thereof with the Trustee for deposit into the
Refunding Fund in accordance with the Indenture for application
as provided in Article V hereof and Section 5.2 of the Indenture
to refund on the Refunding Date a like principal amount of the
Prior Bonds. The Company shall pay out of its own money and not
out of proceeds of the Bonds all reasonable Costs of Issuance
with respect to the Bonds.
SECTION 4.2. Payments. (a) The Company shall pay to the
Trustee or the Paying Agent for the account of the Issuer on each
date on which the principal of, premium, if any, Purchase Price
or interest on the Bonds comes due, whether at the maturity
thereof or upon acceleration, redemption, purchase or otherwise
in accordance with the provisions of the Indenture, an amount
equal to the sum of (i) all interest due and payable on the Bonds
on such date, (ii) the principal amount of Bonds, if any, due and
payable on such date, (iii) amounts, if any, required to effect
the redemption of Bonds upon unconditional call thereof on such
date pursuant to the Indenture, together with accrued interest
and any applicable redemption premium, (iv) amounts necessary to
pay the Purchase Price of the Bonds which is due and payable on
such date, and (v) all amounts due on such date to the Trustee or
the Issuer under this Refunding Agreement, the Indenture or any
other agreements entered into in connection with the issuance of
the Bonds and any other Administration Expenses. The Company
directs the Trustee and the Paying Agent to apply such amounts to
the purpose for which they are paid. The payments required under
this Section 4.2(a)(i), (ii), (iii) and (iv) shall be paid by
check, draft, wire transfer or other means acceptable to the
Trustee directly to the Trustee or the Paying Agent in funds
immediately available to the Trustee or the Paying Agent on the
payment date, and shall be immediately deposited in accordance
with the provisions of the Indenture. In any event, the Company
agrees to make payments to the Trustee or the Paying Agent at
such times and in such amounts and manner so as to enable the
Trustee or the Paying Agent to make payment of the principal of,
redemption premium, if any, Purchase Price and accrued interest
on the Bonds as the same shall become due and payable whether by
acceleration, redemption or otherwise in accordance with the
terms of the Indenture; provided, however, that the obligation of
the Company to make any payments hereunder shall be reduced by
the amount of any reduction under the Indenture of the amount of
the corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or interest on the
Bonds or by the amount derived from remarketing proceeds
available to pay the Purchase Price of the Bonds in accordance
with the provisions of Section 4.3(b) of the Indenture.
(b) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(c) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(d) In addition to the options and obligations of the
Company under Article IX hereof, the Company shall have the
option to make from time to time prepayments of part or all of
the amounts due hereunder. The making of any prepayments by the
Company shall not require the Company to make any further
prepayments. The Issuer shall direct the Trustee to apply such
prepayments in such manner, consistent with the provisions of the
Indenture, as may be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
SECTION 4.3. Issuance, Delivery and Surrender of General
and Refunding Bonds. (a) The obligation of the Company set
forth in Section 4.2 hereof to make the payments required therein
may be evidenced, in whole or in part, prior to the Release Date,
by the General and Refunding Bonds. The Company shall issue and
deliver to the Issuer General and Refunding Bonds as provided in
subsection (b) of this Section 4.3.
(b) Concurrently with the issuance and delivery by the
Issuer of the Bonds, and, prior to the Release Date, in order to
evidence the obligation of the Company under clauses (i) and (ii)
of the first sentence of Section 4.2(a) hereof to make payments
pursuant thereto, the excess of the principal amount of the
General and Refunding Bonds to be applied to the payment of
accrued interest on the Bonds, the Company shall issue and
deliver to the Issuer a series of General and Refunding Bonds (i)
maturing on the stated maturity date of the Bonds, (ii) in a
principal amount equal to 109.5% of the principal amount of the
Bonds, (iii) containing redemption provisions correlative to any
provisions of the Indenture relating to the Bonds requiring
mandatory redemption thereof, (iv) requiring payments to be made
to the Trustee for the account of the Issuer, and (v) bearing no
interest.
(c) The obligation of the Company to make any payment of
the principal of the General and Refunding Bonds, whether at
maturity, upon redemption or otherwise, shall be reduced by the
amount of any reduction under the Indenture of the amount of the
corresponding payment required to be made by the Issuer
thereunder in respect of the principal of or premium, if any, or
interest on the Bonds, all in accordance with the provisions of
the Company Mortgage.
(d) The Issuer shall not sell, assign or transfer the
General and Refunding Bonds, except to the extent provided in
Section 4.4 hereof. In view of the pledge and assignment
referred to in said Section 4.4, the Issuer agrees that (i) in
satisfaction of the obligations of the Company set forth in
paragraph (b) of this Section 4.3 with respect to the Bonds, the
General and Refunding Bonds shall be issued and delivered to,
registered in the name of, and held by the Trustee for the
benefit of the owners and holders from time to time of the Bonds;
(ii) the Indenture shall provide that the Trustee shall not sell,
assign or transfer the General and Refunding Bonds except to a
successor trustee under the Indenture, and shall surrender
General and Refunding Bonds to the Company Mortgage Trustees in
accordance with the provisions of subsections (e) and (g) of this
Section 4.3; and (iii) the Company may take such actions as it
shall deem to be desirable to effect compliance with such
restrictions on transfer, including the placing of an appropriate
legend on each General and Refunding Bond and the issuance of
stop-transfer instructions to the Company Mortgage Trustees or
any other transfer agent under the Company Mortgage. Any action
taken by the Trustee in accordance with the provisions of Section
9.13 of the Indenture shall be binding upon the Company.
(e) At the time any Bonds cease to be outstanding (other
than by reason of the payment or redemption of General and
Refunding Bonds and other than by reason of the applicability of
clause (c) in the definition of "Outstanding" herein), the Issuer
shall cause the Trustee to surrender for cancellation to the
Company Mortgage Trustees General and Refunding Bonds in an
aggregate principal amount equal to 109.5% of the aggregate
principal amount of the Bonds which so cease to be outstanding.
(f) For the purpose of determining whether or not any
payment of the principal of or premium, if any, or interest on
the General and Refunding Bonds shall have been made in full, any
moneys paid by the Company in respect of the General and
Refunding Bonds which shall have been withdrawn by the Trustee
from the Bond Fund pursuant to Section 6.1 of the Indenture shall
be deemed to have been paid by the Company to the Trustee
pursuant to Section 4.5 hereof and not to have been paid by the
Company in respect of the General and Refunding Bonds.
(g) The Issuer shall cause the Trustee to surrender for
cancellation to the Company Mortgage Trustees all General and
Refunding Bonds delivered to and then held by the Trustee upon
receipt by the Trustee of:
(i) a written request signed in the name of the
Company by an Authorized Company Representative
requesting such surrender for cancellation of such
General and Refunding Bonds; and
(ii) (A) a written consent to such request signed
by the Bond Insurer, or
(B) an officer's certificate signed by an
Authorized Company Representative to the effect that:
(I) no general and refunding
mortgage bonds are outstanding under the
Company Mortgage other than (a) the General
and Refunding Bonds delivered to and held by
the Trustee pursuant to this Refunding
Agreement and the Indenture, and (b) general
and refunding mortgage bonds held by Persons
other than the Trustee under provisions which
provide for the surrender for cancellation of
such bonds in a manner corresponding in all
material respects to this Section 4.3(g); and
(II) concurrently with the delivery
of the request to the Trustee for the
surrender for cancellation of the General and
Refunding Bonds held by it, the Company is
requesting the surrender for cancellation of
all general and refunding bonds held as
described in clause (I)(b) of such
certificate.
SECTION 4.4. Payments Assigned; Obligation Absolute. It
is understood and agreed that all payments under Section
4.2(a)(i), (ii), (iii) and (iv) to be made by the Company are
pledged by the Issuer to the Trustee pursuant to the Indenture,
and that all rights and interest of the Issuer hereunder (except
for the Issuer's rights under Sections 4.5, 4.6, 4.7 and 8.5
hereof and any rights of the Issuer to receive notices,
certificates, requests, requisitions, directions and other
communications hereunder), including the right to receive the
General and Refunding Bonds and the General and Refunding Bonds,
are pledged and assigned to the Trustee. The Company assents to
such pledge and assignment and agrees that the obligation of the
Company to make payments under Section 4.2(a)(i), (ii), (iii) and
(iv) shall be absolute, irrevocable and unconditional and shall
not be subject to cancellation, termination or abatement, or to
any defense other than payment or to any right of set-off,
counterclaim or recoupment arising out of any breach under this
Refunding Agreement, the Indenture or otherwise by the Issuer or
the Trustee or any other party, or out of any obligation or
liability at any time owing to the Company by the Issuer, the
Trustee or any other party, and, further, that the payments under
Section 4.2(a)(i), (ii), (iii) and (iv) and the other payments
due hereunder shall continue to be payable at the times and in
the amounts specified herein, whether or not the Facilities, or
any portion thereof, shall have been destroyed by fire or other
casualty, or title thereto, or the use thereof, shall have been
taken by the exercise of the power of eminent domain, and that
there shall be no abatement of or diminution in any such payments
by reason thereof, whether or not the Facilities shall be used or
useful, and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Facilities, or
for any other reason.
SECTION 4.5. Payment of Administration Expenses. The
Company shall pay or cause to be paid all Administration
Expenses, including those of the Issuer, the Trustee, any Paying
Agent, any Co-Paying Agent, any Authenticating Agent, the
Remarketing Agent, the Market Agent, the Auction Agent, the
Broker-Dealers and the Bond Registrar under the Indenture, such
payments to be made directly to such entities.
SECTION 4.6. Indemnification. The Company releases the
Issuer , the Trustee, the Market Agent, the Auction Agent and the
Remarketing Agent from, agrees that the Issuer shall not be
liable for, and agrees to indemnify and hold the Issuer, the
Trustee, the Market Agent, the Auction Agent and the Remarketing
Agent free and harmless from, any liability for any loss or
damage to property or any injury to or death of any person that
may be occasioned by any cause whatsoever pertaining to the
Facilities, including, without limitation, the financing or
refinancing of the Facilities and the Prior Bonds or Bonds issued
with respect thereto, except in any case as a result of the
negligence, willful misconduct or bad faith of the party to be
indemnified.
The Company will indemnify and hold the Issuer, the Trustee,
the Market Agent, the Auction Agent and the Remarketing Agent
free and harmless from any loss, claim, damage, tax, penalty,
liability (including but not limited to liability for any patent
infringement), disbursement, litigation expenses, attorneys' fees
and expenses or court costs arising out of, or in any way
relating to, the execution or performance of this Refunding
Agreement, the issuance or sale of the Prior Bonds or the Bonds,
actions taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence, willful
misconduct or bad faith of the Trustee, the Market Agent, the
Auction Agent or the Remarketing Agent, or as a result of the
gross negligence, willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer, the Trustee, the Market Agent,
the Auction Agent and the Remarketing Agent to the same extent as
such entities.
SECTION 4.7. Payment of Taxes. The Company agrees that it
will pay, as the same become due, all taxes and governmental
charges of any kind whatsoever that may at any time be lawfully
assessed or levied against the Company or the Issuer with respect
to the Facilities or any portion thereof or with respect to the
Prior Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii), (iii) or (iv) hereof prior
to or on a parity with the charge under the Indenture thereon and
the pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii), (iii) and (iv) hereof; provided,
however, that nothing herein shall require the payment of any
such tax or charge or the making of provision for the payment
thereof, so long as the validity thereof shall be contested in
good faith by the Company by appropriate legal proceedings;
further provided, that with respect to special assessments or
other governmental charges that may lawfully be paid in
installments over a period of years, the Company shall be
obligated to pay only such installments as are required to be
paid during the term of this Refunding Agreement.
SECTION 4.8. Early Deposit of Payments. If an early
deposit of payments is required pursuant to Section 3.5 of the
Indenture, the Company agrees to make the corresponding payment
under Section 4.2 hereof at such time as to permit compliance
with such Section 3.5.
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1. Refunding Fund - Disbursement of Bond
Proceeds. The Trustee, as authorized by the Issuer in the
Indenture, shall transfer out of the Refunding Fund the proceeds
of the Bonds on the date of issuance thereof to the Prior Trustee
for disbursement and investment in accordance with the Prior
Indenture in order to redeem, together with moneys of the Company
deposited therein, the Prior Bonds on the Refunding Date in the
principal amounts set forth in Section 5.2 of the Indenture.
SECTION 5.2. Compliance with Prior Indenture. The Issuer
shall, at the request of the Company, take all steps as may be
necessary under the Prior Indenture to effect the redemption of
the Prior Bonds in the principal amounts set forth in Section 5.2
of the Indenture on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.1. Maintenance of Corporate Existence. The
Company shall maintain its corporate existence, will not dissolve
or otherwise dispose of all or substantially all its assets and
will not consolidate with or merge with or into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, however, that the
Company may, without violating the agreements contained in this
Section consolidate with or merge into another domestic
corporation (i.e., a corporation incorporated and existing under
the laws of one of the states of the United States of America or
the District of Columbia or under the laws of the United States
of America) or permit one or more such domestic corporations to
consolidate with or merge into it, or sell or otherwise transfer
to another domestic corporation all or substantially all of its
assets as an entirety and thereafter dissolve; provided that (i)
both immediately prior to such consolidation, merger, sale or
transfer and after giving effect thereto, no Event of Default (or
event which, with the giving of notice or the passage of time, or
both, would become an Event of Default) shall have occurred and
be continuing, and (ii) in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein and on
the General and Refunding Bonds.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
SECTION 6.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Refunding Agreement as
provided in the Indenture (including all sums deposited in the
Bond Fund from time to time pursuant to this Refunding Agreement
and the Indenture, and in certain events, amounts obtained
through the exercise of certain remedies provided in the
Indenture). The Bonds shall never be general obligations of the
Issuer nor constitute an indebtedness or pledge of the general
credit of the Issuer within the meaning of any constitutional or
statutory provision or limitation of indebtedness, and shall
never be paid in whole or in part out of any funds raised or to
be raised by taxation or any other funds of the Issuer.
SECTION 6.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain, and shall refrain from taking any action that impairs,
the exclusion of the interest on the Bonds from gross income for
federal income tax purposes under federal tax law existing on the
date of delivery of the Bonds. In furtherance of the foregoing,
the Company also agrees on behalf of the Issuer to comply with
all rebate requirements and procedures as may become applicable
to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction
of the Issuer.
(b) Substantially all of the net proceeds of the sale
of the Prior Bonds have been used to undertake the
acquisition of air or water pollution control facilities or
sewerage or solid waste disposal facilities within the
meaning of Section 103(b)(4) of the Internal Revenue Code of
1954, as amended. All of the proceeds of the Prior Bonds
have been expended.
(c) The weighted average maturity of the Bonds does
not exceed 120% of the reasonably expected economic life of
the Facilities financed with the proceeds of the Prior
Bonds.
(d) The principal amount of the Bonds shall not exceed
the outstanding principal amount of the Prior Bonds being
refunded from the proceeds of the Bonds.
(e) The Bonds are not and will not be "federally
guaranteed" (as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used,
and none of the proceeds of the Prior Bonds were used, to
provide any airplane, skybox or other private luxury box, or
health club facility; any facility primarily used for
gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(g) The information furnished by the Company and used
by the Issuer in preparing the certification pursuant to
Section 148 of the Code and the information statement
pursuant to Section 149(e) of the Code, is accurate and
complete as of the date of the issuance of the Bonds.
(h) None of the proceeds of the Bonds will be used to
finance Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause
any funds constituting gross proceeds of the Bonds to be
used in a manner as to constitute a prohibited payment under
the applicable regulations pertaining to, or in any other
fashion as would constitute failure of compliance with,
Section 148 of the Code.
SECTION 6.4. Maintenance of Facilities. The Company
covenants that while any of the Bonds are outstanding it will, at
its own expense, maintain the Facilities in good repair and make
all required replacements and renewals thereof. However, the
Company shall have no obligation to replace or renew any portion
of the Facilities, if in the Company's opinion, it is unnecessary
or undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Refunding Agreement
to the contrary notwithstanding, the Company shall be entitled to
the proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such shall be paid
directly to the Company.
SECTION 6.5. Permits. The Company shall, at its sole cost
and expense, procure or cause to be procured any and all
necessary building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION 6.6. Compliance with Law. The Company shall,
throughout the term of this Refunding Agreement and at no expense
to the Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
Notwithstanding the foregoing, the Company shall have the right
to contest the legality of any such law, ordinance, order, rule,
regulation or requirement as applied to the Facilities provided
that in the opinion of counsel to the Company such contest shall
not in any way materially adversely affect or impair the
obligations of the Company under this Refunding Agreement or the
ability of the Company to discharge such obligations.
SECTION 6.7. No Warranty. The Issuer makes no warranty,
either express or implied, as to the Facilities, including,
without limitation, title to the Facilities or the actual or
designed capacity of the Facilities, as to the suitability or
operation of the Facilities for the purposes specified in this
Refunding Agreement, as to the condition of the Facilities or as
to the suitability thereof for the Company's purposes or needs or
as to compliance of the Facilities with applicable laws and
regulations or the ability of the Company to discharge the Bonds.
The Company covenants with the Issuer that it will make no claim
against the Issuer for any deficiency which may at any time exist
in the Facilities, nor will it assert against the Issuer any
other claim for breach of warranty with respect to the
Facilities. The obligations of the Company under this Section
shall survive any assignment or termination of this Refunding
Agreement.
SECTION 6.8. Limitation on Secured Debt. (a) On and
after the Release Date and so long as any Bonds shall remain
Outstanding, the Company shall not create, issue, incur or assume
any Secured Debt other than Permitted Secured Debt without the
consent of the Bond Insurer or the owners of a majority in
principal amount of the Outstanding Bonds if the Bond Insurer is
in default as provided in Section 10.16 hereof.
(b) The provisions of clause (a) above shall not prohibit
the creation, issuance, incurrence or assumption of any Secured
Debt if either
(i) the Company shall make effective provision whereby
all Bonds then Outstanding shall be secured equally and
ratably with such Secured Debt; or
(ii) the Company shall deliver to the Trustee bonds,
notes or other evidences of indebtedness secured by the Lien
which secures such Secured Debt (hereinafter called "Secured
Obligations") (A) in an aggregate principal amount equal to
the aggregate principal amount of the Bonds then
Outstanding, (B) maturing (or being subject to mandatory
redemption) on such dates and in such principal amounts
that, at the Maturity Date, there shall mature (or be
redeemed) Secured Obligations equal in principal amount to
the Bonds and (C) containing, in addition to any mandatory
redemption provisions applicable to all Secured Obligations
outstanding under such Lien and any mandatory redemption
provisions contained therein pursuant to clause (B) above,
mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant
to a sinking fund or otherwise) of the Bonds or for the
redemption thereof at the option of the Owner, as well as a
provision for mandatory redemption upon an acceleration of
the maturity of all Outstanding Bonds following an Event of
Default (such mandatory redemption to be rescinded upon the
rescission of such acceleration); it being expressly
understood that such Secured Obligations (x) may, but need
not, bear interest, (y) may, but need not, contain
provisions for the redemption thereof at the option of the
issuer, any such redemption to be made at a redemption price
or prices not less than the principal amount thereof and (z)
shall be held by the Trustee for the benefit of the Owners
of all Bonds from time to time Outstanding subject to such
terms and conditions relating to surrender to the Company,
transfer restrictions, voting, application of payments of
principal and interest and other matters as shall be set
forth in an indenture supplemental hereto specifically
providing for the delivery to the Trustee of such Secured
Obligations.
(c) If the Company shall elect either of the alternatives
described in clause (b) above, the Company shall deliver to the
Trustee and to the Bond Insurer:
(i) an indenture supplemental to the Indenture (A)
together with appropriate inter-creditor arrangements,
whereby all Bonds then Outstanding shall be secured by the
Lien referred to in clause (b) above equally and ratably
with all other indebtedness secured by such Lien or (B)
providing for the delivery to the Trustee of Secured
Obligations;
(ii) an officer's certificate signed by an Authorized
Company Representative (A) stating that, to the knowledge of
the signer, (1) no Event of Default has occurred and is
continuing and (2) no event has occurred and is continuing
which entitles the secured party under such Lien to
accelerate the maturity of the indebtedness outstanding
thereunder and (B) stating the aggregate principal amount of
indebtedness issuable, and then proposed to be issued, under
and secured by such Lien;
(iii) an opinion of counsel (A) if the Bonds then
Outstanding are to be secured by such Lien, to the effect
that all such Bonds then Outstanding are entitled to the
benefit of such Lien equally and ratably with all other
indebtedness outstanding under such Lien or (B) if Secured
Obligations are to be delivered to the Trustee, to the
effect that such Secured Obligations have been duly issued
under such Lien and constitute valid obligations, entitled
to the benefit of such Lien equally and ratably with all
other indebtedness then outstanding under such Lien.
(d) For all purposes of this Refunding Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
"Consolidated Tangible Net Worth" means (i) common
stock equity minus (ii) the aggregate amount of all
intangible assets (other than intangible assets the cost of
which is expected by the Company to be recovered through
revenues from the sale of electrical capacity and/or energy
or the provision of related services), all as determined in
accordance with generally accepted accounting principles as
applied to entities conducting the same businesses as the
Company.
"Debt", with respect to any Person, means (i)
indebtedness of such Person for borrowed money evidenced by
a bond, debenture, note or other written instrument or
agreement by which such Person is obligated to repay such
borrowed money and (ii) any guarantee by such Person of any
such indebtedness of another Person. "Debt" does not
include, among other things, (x) indebtedness of such Person
under any installment sale or conditional sale agreement or
any other agreement relating to indebtedness for the
deferred purchase price of property or services, (y)
obligations of such Person under any lease agreement
(including any lease intended as security), whether or not
such obligations are required to be capitalized on the
balance sheet of such Person under generally accepted
accounting principles, or (z) liabilities secured by any
Lien on any property owned by such Person if and to the
extent that such Person has not assumed or otherwise become
liable for the payment thereof.
"Excepted Property" means:
(i) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests
in general or limited partnerships, bonds, notes, other
evidences of indebtedness and other securities, of
whatsoever kind and nature, not hereafter paid or delivered
to, deposited with or held by the Trustee hereunder or
required so to be;
(ii) all contracts, leases, operating agreements and
other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute
securities, in which case they are separately excepted under
clause (i) above); all revenues, income and earnings, all
accounts, accounts receivable and unbilled revenues, and all
rents, tolls, issues, products and profits, claims, credits,
demands and judgments; all governmental and other licenses,
permits, franchises, consents and allowances; and all
patents, patent licenses and other patent rights, patent
applications, trade names, trademarks, copyrights, claims,
credits, choses in action and other intangible property and
general intangibles including, but not limited to, computer
software;
(iii) all automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable
equipment; all rolling stock, rail cars and other railroad
equipment; all vessels, boats, barges and other marine
equipment; all airplanes, helicopters, aircraft engines and
other flight equipment; all parts, accessories and supplies
used in connection with any of the foregoing; and all
personal property of such character that the perfection of a
security interest therein or other Lien thereon is not
governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;
(iv) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the
ordinary course of business; all materials, supplies,
inventory and other items of personal property which are
consumable (otherwise than by ordinary wear and tear) in
their use in the operation of any property of the Company;
all fuel, including nuclear fuel, whether or not any such
fuel is in a form consumable in the operation of any
property of the Company, including separate components of
any fuel in the forms in which such components exist at any
time before, during or after the period of the use thereof
as fuel; all hand and other portable tools and equipment;
all furniture and furnishings; and computers and data
processing, data storage, data transmission,
telecommunications and other facilities, equipment and
apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not
necessary for the operation or maintenance of the
facilities, machinery, equipment or fixtures of the Company
for (A) the generation, transmission or distribution of
electric energy, (B) the transmission, storage or
distribution of gas or (C) the appropriation, storage,
transmission or distribution of water;
(v) all coal, ore, gas, oil and other minerals and all
timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have
been mined or extracted or otherwise separated from the
land; and all electric energy, gas (natural or artificial),
steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the
Company;
(vi) all real property, leaseholds, gas rights, xxxxx,
gathering, tap or other pipe lines, or facilities, equipment
or apparatus, in any case used or to be used primarily for
the production or gathering of natural gas; and
(vii) all property which is the subject of a lease
agreement designating the Company as lessee and all right,
title and interest of the Company in and to such property
and in, to and under such lease agreement, whether or not
such lease agreement is intended as security.
"Lien" means any mortgage, deed of trust, pledge, lien,
security interest, conditional sale or other title retention
agreement or any lease in the nature thereof.
"Permitted Secured Debt" means, as of any particular
time, any of the following:
(i) Secured Debt secured by Purchase Money Liens or
any other Liens existing or placed upon property at the time
of, or within one hundred eighty (180) days after, the
acquisition thereof by the Company, and any refundings,
refinancings and/or replacements of any such Secured Debt;
provided, however, that no such Purchase Money Lien or other
Lien shall extend to or cover any property of the Company
other than (A) the property so acquired and improvements,
extensions and additions to such property and renewals,
replacements and substitutions of or for such property or
any part or parts thereof and (B) with respect to Purchase
Money Liens, other property subsequently acquired by the
Company;
(ii) Secured Debt relating to governmental obligations
the interest on which is not included in gross income for
purposes of federal income taxation pursuant to Section 103
of the Internal Revenue Code of 1986, as amended (or any
successor provision of law), for the purpose of financing or
refinancing, in whole or in part, costs of acquisition or
construction of property to be used by the Company, to the
extent that the Lien which secures such Secured Debt is
required either by applicable law or by the issuer of such
governmental obligations or is otherwise necessary in order
to establish or maintain such exclusion from gross income;
and any refundings, refinancings and/or replacements of any
such Secured Debt by or with similar Secured Debt;
(iii) Secured Debt (A) which is related to the
construction or acquisition of property not previously owned
by the Company or (B) which is related to the financing of a
project involving the development or expansion of property
of the Company and (C) in either case, the obligee in
respect of which has no recourse to the Company or any
property of the Company other than the property constructed
or acquired with the proceeds of such transaction or the
project financed with the proceeds of such transaction (or
the proceeds of such property or such project); and any
refundings, refinancings and/or replacements of any such
Secured Debt by or with Secured Debt described in clause (C)
above;
(iv) Secured Debt permitted under clause (b) above; and
(v) in addition to the Permitted Secured Debt
described in clauses (i) through (iv) above, Secured Debt
not otherwise permitted in this Section 6.8 in an aggregate
principal amount not exceeding 10% of the Consolidated
Tangible Net Worth of the Company, as shown on the latest
annual or quarterly consolidated balance sheet of the
Company prepared by the Company, dated prior to the date of
the creation, issuance, incurrence or assumption of such
Secured Debt.
"Purchase Money Lien" means, with respect to any
property being acquired by the Company, a Lien on such
property which
(i) is taken or retained by the transferor of such
property to secure all or part of the purchase price
thereof;
(ii) is granted to one or more Persons other than the
transferor which, by making advances or incurring an
obligation, give value to enable the grantor of such Lien to
acquire rights in or the use of such property;
(iii) is held by a trustee or agent for the benefit
of one or more Persons described in clause (i) or
(ii) above, provided that such Lien may be held, in
addition, for the benefit of one or more other Persons which
shall have theretofore given, or may thereafter give, value
to or for the benefit or account of the grantor of such Lien
for one or more other purposes; or
(iv) otherwise constitutes a purchase money mortgage or
a purchase money security interest under applicable law;
and, without limiting the generality of the foregoing, for
purposes of this Indenture, the term Purchase Money Lien
shall be deemed to include any Lien described above whether
or not such Lien (A) shall permit the issuance or other
incurrence of additional indebtedness secured by such Lien
on such property, (B) shall permit the subjection to such
Lien of additional property and the issuance or other
incurrence of additional indebtedness on the basis thereof
and/or (C) shall have been granted prior to the acquisition
of such property, shall attach to or otherwise cover
property other than the property being acquired and/or shall
secure obligations issued prior and/or subsequent to the
issuance of the obligations delivered in connection with
such acquisition.
"Secured Debt", with respect to any Person, means Debt
created, issued, incurred or assumed by such Person which is
secured by a Lien upon any property (other than Excepted
Property) of the Company, real, personal or mixed, of
whatever kind or nature and wherever located, whether owned
at the date of the initial authentication and delivery of
the Bonds hereunder, or thereafter acquired.
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Company. The Company's interest in
this Refunding Agreement may be assigned in whole or in part, and
the Facilities may be leased or sold as a whole or in part
(whether a specific element or unit or an undivided interest), by
the Company, subject, however, to the condition that no
assignment, lease or sale (other than as described in Section 6.1
hereof) shall relieve the Company from primary liability for its
obligations (including its obligations on the General and
Refunding Bonds) under Section 4.2 and 4.3 hereof to pay the
payments required thereunder, or for any other of its obligations
hereunder, other than those obligations relating to the
operation, maintenance and insurance of the Facilities, which
obligations (to the extent of the interest assigned, leased or
sold and to the extent assumed by the assignee, lessee or
purchaser) shall be deemed to be satisfied and discharged.
Further, upon any such lease or sale the Company shall comply
with the requirements of the Code and the regulations promulgated
thereunder (including, without limitation, the taking of remedial
action with respect to the Bonds) as the same may then be
applicable.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
SECTION 7.2. Limitation. This Refunding Agreement shall
not be assigned nor shall the Facilities be leased or sold, in
whole or in part, except as provided in this Article VII,
Sections 4.4 or 6.1 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default. Each of the following
events shall constitute and is referred to in this Refunding
Agreement as an "Event of Default":
(a) prior to the Release Date, a "Default" as such
term is defined in Section 12.01 of the Company Mortgage;
(b) a failure by the Company to make when due any
payment required to be made pursuant to Section 4.2 hereof,
which failure shall have resulted in an "Event of Default"
under clause (a), (b) or (e) of Section 10.1 of the
Indenture;
(c) a failure by the Company to pay when due any other
amount required to be paid under this Refunding Agreement or
to observe and perform any covenant, condition or agreement
on its part to be observed or performed, which failure shall
continue for a period of ninety (90) days after written
notice, specifying such failure and requesting that it be
remedied, shall have been given to the Company by the Issuer
or the Trustee, unless the Issuer and the Trustee shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Issuer and the
Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued;
(d) on and after the Release Date, the expiration of a
period of ninety (90) days following:
(i) the adjudication of the Company as a bankrupt
by any court of competent jurisdiction;
(ii) the entry of an order approving a petition
seeking reorganization or arrangement of the Company
under the federal bankruptcy laws or any other
applicable law or statute of the United States of
America, or of any state thereof; or
(iii) the appointment of a trustee or a
receiver of all or substantially all of the property of
the Company, unless during such period such
adjudication, order or appointment of a trustee or
receiver shall be vacated or shall be stayed on appeal
or otherwise or shall have otherwise ceased to continue
in effect; or
(e) on and after the Release Date, the filing by the
Company of a voluntary petition in bankruptcy or the making
of an assignment for the benefit of creditors; the
consenting by the Company to the appointment of a receiver
or trustee of all or any part of its property; the filing by
the Company of a petition or answer seeking reorganization
or arrangement under the federal bankruptcy laws, or any
other applicable law or statute of the United States of
America, or of any state thereof; or the filing by the
Company of a petition to take advantage of any insolvency
act.
SECTION 8.2. Force Majeure. The provisions of Section 8.1
hereof are subject to the following limitations: If by reason of
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or other acts of any kind of the
government of the United States or of the State of Arkansas, or
any other sovereign entity or body politic, or any department,
agency, political subdivision, court or official of any of them,
or any civil or military authority; insurrections; riots;
epidemics; landslides; lightning; earthquakes; volcanoes; fires;
hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(i), (ii), (iii) or (iv) hereof and its
obligations under Sections 4.7, 6.1, 7.1 and 9.1 hereof, the
Company shall not be deemed in default by reason of not carrying
out said agreement or agreements or performing said obligation or
obligations during the continuance of such inability. The
Company agrees, however, to use its best efforts to remedy with
all reasonable dispatch the cause or causes preventing it from
carrying out its agreements; provided, that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is, in the judgment of
the Company, unfavorable to the Company.
SECTION 8.3. Remedies on Default. (a) Upon the occurrence
and continuance of any Event of Default described in clause (a)
of Section 8.1 hereof, the Trustee, as the holder of the General
and Refunding Bonds, shall, subject to the provisions of the
Indenture, have the rights provided in the Company Mortgage.
(b) Upon the occurrence and continuance of any Event of
Default described in Section 8.1 hereof, and further upon the
condition that, in accordance with the terms of the Indenture,
the Bonds shall have become immediately due and payable pursuant
to any provision of the Indenture, the payments required to be
paid pursuant to Section 4.2 hereof shall, without further
action, become and be immediately due and payable.
(c) Upon the occurrence and continuance of any Event of
Default, the Issuer, with the prior consent of the Trustee, or
the Trustee, may take any action at law or in equity to collect
the payments then due and thereafter to become due hereunder, or
to enforce performance and observance of any obligation,
agreement or covenant of the Company under this Refunding
Agreement.
(d) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(e) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case, the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
SECTION 8.4. No Remedy Exclusive. No remedy conferred
upon or reserved to the Issuer by this Refunding Agreement is
intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this
Refunding Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right
or power accruing upon any event of default shall impair any such
right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and
as often as may be deemed expedient. In order to entitle the
Issuer or the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required, or as may
be required by applicable law.
SECTION 8.5. Payment of Attorneys' Fees and Other
Expenses. If the Company shall be in default under any of the
provisions of this Refunding Agreement, and the Issuer or the
Trustee shall employ attorneys or incur other expenses for the
collection of sums due and payable under this Refunding Agreement
or on the General and Refunding Bonds, or for the enforcement of
performance or observance of any obligation or agreement on the
part of the Company contained in this Refunding Agreement, the
Company agrees that it will on demand therefor reimburse the
reasonable fees of such attorneys and such other reasonable
expenses so incurred.
SECTION 8.6. Waiver of Breach. In the event that any
agreement contained herein shall be breached by either the
Company or the Issuer and such breach shall thereafter be waived
by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any
other breach hereunder. In view of the assignment of the
Issuer's rights in and under this Refunding Agreement to the
Trustee under the Indenture, the Issuer shall have no power to
waive any default hereunder by the Company without the consent of
the Trustee. Any waiver of any "Event of Default" under the
Indenture and a rescission and annulment of its consequences, and
any waiver of any "Default" under the Company Mortgage and a
recission and annulment of its consequences shall constitute a
waiver of the corresponding Event of Default hereunder and a
rescission and annulment of the consequences thereof.
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. Redemption of Bonds. The Issuer shall take
the actions required by the Indenture to discharge the lien
thereof through the redemption, or provision for payment or
redemption, of all Bonds then outstanding, or to effect the
redemption, or provision for payment or redemption, of less than
all the Bonds then outstanding, upon receipt by the Issuer and
the Trustee from the Company of a notice designating the
principal amounts of the Bonds to be redeemed, or for the payment
or redemption of which provision is to be made, and, in the case
of redemption of Bonds, or provision therefor, specifying the
date of redemption, whether such notice shall be unconditional,
and the applicable redemption provision of the Indenture. Unless
otherwise stated therein or otherwise required by the Indenture,
such notice shall be revocable by the Company at any time prior
to the time at which the Trustee shall have given notice to the
holders of the Bonds to be redeemed. The Company shall furnish,
as a prepayment of the sums due hereunder, any moneys or
Government Securities required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection
with a defeasance of Bonds pursuant to Article XV of the
Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Term of the Agreement. This Refunding
Agreement shall be in full force and effect from the Issue Date
until the right, title and interest of the Trustee in and to the
Trust Estate (as defined in the Indenture) shall have ceased,
terminated and become void in accordance with Article XV of the
Indenture and until all payments required under this Refunding
Agreement shall have been made.
SECTION 10.2. Notices. Except as otherwise provided in
this Refunding Agreement, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when given in accordance with the provisions of Section
16.6 of the Indenture.
SECTION 10.3. Successors. This Refunding Agreement shall
inure to the benefit of the Issuer, the governing authority of
the Issuer, its members, officers or employees, the Company, the
Trustee and the holders from time to time of the Bonds, and shall
be binding upon the Issuer, the Company and their respective
successors and assigns.
SECTION 10.4. Amendments to Refunding Agreement. This
Refunding Agreement may not be effectively amended, changed,
modified, altered or terminated except in accordance with the
provisions of the Indenture, and no amendment to this Refunding
Agreement shall be binding upon either party hereto until such
amendment is reduced to writing and executed by both parties
hereto.
SECTION 10.5. Counterparts. This Refunding Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same
Agreement.
SECTION 10.6. Severability. If any clause, provision or
section of this Refunding Agreement shall be held illegal or
invalid by any court, the invalidity of such clause, provision or
section shall not affect any of the remaining clauses, provisions
or sections hereof and this Refunding Agreement shall be
construed and enforced as if such illegal or invalid clause,
provision or section had not been contained herein. In case any
agreement or obligation contained in this Refunding Agreement
shall be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of
the Issuer or the Company, as the case may be, to the full extent
permitted by law.
SECTION 10.7. Applicable Law. The laws of the State of
Arkansas shall govern the construction of this Refunding
Agreement.
SECTION 10.8. Holidays. If the date for making any payment
or the last date for performance of any act or the exercising of
any right, as provided in this Indenture, shall not be a Business
Day, such payment may be made or act performed or right exercised
on the next succeeding Business Day, with the same force and
effect as if done on the nominal date provided in this Refunding
Agreement, and no interest on the amount so payable shall accrue
for the period after such nominal date.
SECTION 10.9. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Refunding Agreement as herein provided, after payment in
full of the Bonds (or provision therefor) in accordance with the
Indenture, all other costs and expenses to be paid by the Company
hereunder, all Administration Expenses, and all amounts owing the
Issuer and the Trustee under this Refunding Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
SECTION 10.10. Company Approval of Indenture. The Indenture
has been submitted to the Company for examination, and the
Company, by execution of this Refunding Agreement, acknowledges
and agrees that it has participated in the drafting of the
Indenture and agrees that it has approved the Indenture and
agrees that it is bound by and shall have the rights set forth by
the terms and conditions thereof and covenants and agrees to
perform all obligations required of the Company pursuant to the
terms of the Indenture.
SECTION 10.11. Binding Effect. This Refunding Agreement
shall be binding upon the parties hereto and upon their
respective successors and assigns, and the words "Issuer" and
"Company" shall include the parties hereto and their respective
successors and assigns and include any gender, singular and
plural, and individuals, partnerships or corporations.
SECTION 10.12. Captions and Headings. The captions or
headings in this Refunding Agreement are for convenience only and
in no way define, limit or describe the scope or intent of any
provisions of this Refunding Agreement.
SECTION 10.13. No Personal Liability. No covenant or
agreement contained in this Refunding Agreement shall be deemed
to be the covenant or agreement of any official, officer, agent,
or employee of the Issuer in his individual capacity, and no such
person shall be subject to any personal liability or
accountability by reason of the issuance thereof.
SECTION 10.14. Parties in Interest. This Refunding
Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company, the Trustee and the Paying Agent and
their respective successors and assigns, and no other person,
firm or corporation shall have any right, remedy or claim under
or by reason of this Refunding Agreement; provided, however, that
any monetary obligation of the Issuer created by or arising out
of this Refunding Agreement shall be payable solely out of the
revenues derived from this Refunding Agreement or the sale of the
Bonds or income earned on invested funds as provided in the
Indenture and shall not constitute, and no breach of this
Refunding Agreement by the Issuer shall impose, a pecuniary
liability upon the Issuer or a charge upon the Issuer's general
credit or against its taxing powers.
SECTION 10.15. Consent of the Bond Insurer. All provisions
hereof regarding consents, approvals, directions, appointments or
requests by the Bond Insurer shall be deemed not to require or
permit such consents, approvals, directions, appointments or
requests by the Bond Insurer and shall be read as if the Bond
Insurance Policy was not mentioned therein during any time in
which the Bond Insurer is in default in its obligations to make
payments under the Bond Insurance Policy; provided, however, that
this Section shall not affect the rights of the Bond Insurer to
collect any amounts owed to it.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Refunding Agreement to be executed in their respective
corporate names and their respective corporate seals to be
hereunto affixed and attested by their duly authorized officers,
all as of the date first above written.
INDEPENDENCE COUNTY, ARKANSAS
By: ______________________________
County Judge
ATTEST:
By: _______________________________ [SEAL]
County Clerk
ENTERGY MISSISSIPPI, INC.
By: _____________________________
Title:
ATTEST:
By: _______________________________ [SEAL]
Title:
