Exhibit B-5
[GOVERNMENTAL AUTHORITY]
to
___________________________________________,
Trustee
__________________
TRUST INDENTURE
__________________
Dated as of ________ __, ____
__________________
____________________ Bonds, ____ Series
(Mississippi Power & Light Company Project)
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Trust Indenture)
Page
PARTIES 1
RECITALS 1
Form of Bond 3
Form of Trustee's Certificate of Authentication 5
Form of Validation Certificate 5
Form of Assignment 10
GRANTING CLAUSE 11
ARTICLE I
DEFINITIONS 13
ARTICLE II
The Bonds
SECTION 2.01.
Authorized Amount of Bonds 13
SECTION 2.02.
Issuance of Bonds 13
SECTION 2.03.
Form of Bonds 14
SECTION 2.04.
Details, Execution and Payment 14
SECTION 2.05.
Authentication; Exchange, Transfer
and Ownership of Bonds 15
SECTION 2.06.
Delivery of Bonds; Application of Proceeds 17
SECTION 2.07.
Temporary Bonds 18
SECTION 2.08.
Mutilated, Destroyed or Lost Bonds 18
SECTION 2.09.
Destruction of Bonds 18
SECTION 2.10.
Book-Entry Only System 18
ARTICLE III
Redemption of Bonds Before Maturity
SECTION 3.01.
Redemption Dates and Prices 20
SECTION 3.02.
Notice of Redemption 21
SECTION 3.03.
Effect of Call for Redemption 22
SECTION 3.04.
Partial Redemption 22
SECTION 3.05.
Funds in Trust; Unclaimed Funds 23
ARTICLE IV
General Covenants
SECTION 4.01.
Payment of Principal, Redemption Premium
if any, and Interest 23
SECTION 4.02.
Performance of Covenants; County 23
SECTION 4.03. 24
Instruments of Further Assurance; Liens
and Encumbrances
SECTION 4.04.
Recordation 24
SECTION 4.05.
Rights Under Agreement 24
SECTION 4.06.
Prohibited Activities 24
ARTICLE V
Revenue and Funds
SECTION 5.01.
Source of Payment of Bonds 25
SECTION 5.02.
Creation of Bond Fund 25
SECTION 5.03.
Payments into the Bond Fund 25
SECTION 5.04.
Use of Moneys in the Bond Fund 26
SECTION 5.05.
Custody of the Bond Fund 26
SECTION 5.06.
Non-presentment of Bonds 26
SECTION 5.07.
Moneys to be Held in Trust 26
SECTION 5.08.
Repayment to the Company from Bond Fund 27
SECTION 5.09.
Creation and Use of the Rebate Fund 27
ARTICLE VI
Investments
SECTION 6.01.
Investment of Moneys 27
ARTICLE VII
Discharge of Indenture
SECTION 7.01.
Discharge of Indenture 29
ARTICLE VIII
Default Provisions and Remedies of Trustee
and Bondholders
SECTION 8.01.
Events of Default 30
SECTION 8.02.
Acceleration 31
SECTION 8.03.
Other Remedies 32
SECTION 8.04.
Legal Proceedings by Trustee 32
SECTION 8.05.
Right of Bondholders to Direct Proceedings 33
SECTION 8.06.
Appointment of Receivers 33
SECTION 8.07.
Waiver 33
SECTION 8.08.
Application of Moneys 34
SECTION 8.09.
Remedies Vested in the Trustee 35
SECTION 8.10.
Rights and Remedies of Bondholders 36
SECTION 8.11.
Termination of Proceedings 36
SECTION 8.12.
Waivers of Events of Default 37
SECTION 8.13.
Opportunity of County and Company to
Cure Defaults Under Section
8.01(c); Notice 37
ARTICLE IX
The Trust
SECTION 9.01.
Acceptance of the Trusts 37
SECTION 9.02.
Fees, Charges and Expenses of Trustee 40
SECTION 9.03.
Notice to Bondholders if Default Occurs 41
SECTION 9.04.
Intervention by Trustee 41
SECTION 9.05.
Successor Trustee 41
SECTION 9.06.
Resignation by Trustee 41
SECTION 9.07.
Removal of Trustee 42
SECTION 9.08.
Appointment of Successor Trustee by the
Bondholders; Temporary Trustee 42
SECTION 9.09.
Concerning Any Successor Trustee 42
SECTION 9.10.
Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent 43
SECTION 9.11.
Trustee and County Required to Accept
Directions and Actions of Company 43
ARTICLE X
Indentures Supplemental Hereto
SECTION 10.01.
Supplemental Indentures Not Requiring
Consent of Bondholders 43
SECTION 10.02.
Supplemental Indentures Requiring Consent
of Bondholders 44
SECTION 10.03.
Trustee Authorized to Join in Supplements;
Reliance on Counsel 45
ARTICLE XI
Amendment of Agreement
SECTION 11.01.
Amendments, etc., to Agreement Not
Requiring Consent of Bondholders 46
SECTION 11.02.
Amendments, etc., to Agreement Requiring
Consent of Bondholders 46
SECTION 11.03.
Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel 46
ARTICLE XII
Miscellaneous
SECTION 12.01.
Consents, etc., of Bondholders 47
SECTION 12.02.
Limitation of Rights 47
SECTION 12.03.
Severability 47
SECTION 12.04.
Notices 48
SECTION 12.05.
Trustee as Paying Agent and Bond Registrar 48
SECTION 12.06.
Payments Due on Sundays and Holidays 48
SECTION 12.07.
Counterparts 48
SECTION 12.08.
Applicable Provisions of Law 48
SECTION 12.09.
Captions 48
SECTION 12.10.
No Liability of County 49
TRUST INDENTURE
THIS TRUST INDENTURE dated as of the _____ day of ________,
______, made and entered into by and between ___________, a
public body corporate and politic and a political subdivision of
the State of __________ (the "County"), and
______________________, a banking corporation duly organized,
existing and authorized to accept and execute trusts of the
character herein set out under the laws of the United States of
America, with its principal office in the __________________,
_________________, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
[Constitution and the laws of the State of Mississippi,
especially Sections 00-00-000 through 00-00-000, Mississippi Code
of 1972, as amended (hereinafter called the "Pollution Control
Act"), to acquire, purchase, construct, enlarge, expand and
improve facilities for eliminating, mitigating, and/or preventing
air and water pollution, to issue revenue bonds to defray the
cost of such facilities, and to execute an agreement with an
industry (as defined in the Pollution Control Act) for the sale
of such facilities to such industry]; and
[WHEREAS, pursuant to and in accordance with the provisions
of the Pollution Control Act, the County [has heretofore on
______ __, ____, issued $________ principal amount of its
___________ Bonds, Series __ (Mississippi Power & Light Company
Project) (the "Prior Bonds"), of which $_________ principal
amount is now outstanding, pursuant to a Trust Indenture dated as
of ________ __, ____, whereunder _______________ is trustee (the
"Prior Indenture"); and]
[WHEREAS, the Prior Bonds were issued to defray the cost of
acquisition, construction, installation and equipping of certain
air and water pollution control facilities (the "Project") at the
_______________________ (the "Plant") of Mississippi Power &
Light Company, a corporation authorized and existing under the
laws of the State of Mississippi and an "industry" as defined in
the Pollution Control Act (the "Company"), located at
_____________, ________________, _____________, within the
County; the Project was sold by the County to the Company
pursuant to a ____________________ Agreement between the County
and the Company dated as of __________ __, ____ (the "Prior
Agreement"); the Company is now the owner and operator of the
Plant and the Project;]
WHEREAS, at the request of the Company, the County proposes,
pursuant to [Sections 31-15-21 through 31-15-27, Mississippi Code
of 1972, as amended (the "Act"),] a resolution duly and validly
adopted by the County on ________ __, ____ (the "Issuing
Resolution") and this Indenture, to issue its ____________ Bonds,
________ Series (Mississippi Power & Light Company Project) in
the aggregate principal amount of $_________ (the "Bonds") for
the purpose of providing funds, which, together with other funds
to be made available therefor by the Company, will be sufficient
[to refund all of the Prior Bonds now outstanding, including
providing for the payment of any redemption premium due or to
become due thereon, interest to accrue to the selected redemption
date, any sinking fund maturities to become due prior to the
selected redemption date and all expenses in connection with such
refunding;] and
WHEREAS, the County has confirmed and continued the
installment sale of the Project to the Company pursuant to the
terms and conditions of [Facility] Agreement between the County
and the Company dated as of ______ __, ____ (the "Agreement"),
which fully [amends and restates the Prior Agreement,] and the
County proposes to [refund the Prior Bonds now outstanding]
pursuant to the terms and conditions set forth in this Indenture
by the issuance of the Bonds; and
WHEREAS, the Bonds in registered form and the Trustee's
Certificate of Authentication and [Clerk's] Registration and
Validation Certificates to be endorsed thereon are to be in
substantially the following form, with appropriate variations,
omissions and insertions as permitted or required by this
Indenture, to wit:
[FORM OF BOND]
[Add DTC Legend if Applicable]
UNITED STATES OF AMERICA
STATE OF ______________
__________________, _______________
_________________ BOND
____ SERIES
(MISSISSIPPI POWER & LIGHT COMPANY PROJECT)
No. R-_________$______________
MATURITY DATE ORIGINAL ISSUE DATE CUSIP
_________ __, ____
REGISTERED OWNER:
PRINCIPAL SUM:
KNOW ALL MEN BY THESE PRESENTS THAT [GOVERNMENTAL AUTHORITY]
(the "Issuer"), a body politic and corporate and a political
subdivision duly created and validly existing pursuant to the
laws and constitution of the State of ________ (the "State"), for
value received, promises to pay, solely from the source and as
hereinafter provided, to the registered owner named above, or
registered assigns, the principal sum specified above on the
maturity date specified above (or earlier as hereinafter referred
to) and in like manner and solely from the same source to pay
interest on said sum from the date determined as described in the
Indenture referred to on the reverse hereof at the rate of _____
per centum (__%) per annum, on __________ __, ____, and semi-
annually thereafter on _________ __ and _________ __ of each year
until the principal sum is paid or duly provided for. Interest
on the Bonds shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Principal of and redemption
premium, if any, and interest on this Bond are payable in lawful
money of the United States of America at the principal corporate
trust office of ___________________________, __________,
__________ ______, as paying agent and trustee under the
Indenture, or its successor in trust (the "Trustee"). Interest
hereon shall be payable to the person in whose name this Bond is
registered at the close of business on the fifteenth day of the
month preceding each interest payment date (whether or not such
date is a Business Day); such interest shall be paid by
clearinghouse check mailed to the person entitled thereto.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH [ON THE REVERSE HEREOF] OR [ON PAGES ____ THROUGH ____
HEREOF], WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH ABOVE THE EXECUTION AND AUTHENTICATION.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law;
that the issuance of this Bond and the issue of which it forms a
part do not exceed or violate any constitutional or statutory
limitation; and that provision has been made in the Indenture for
the deposit, but only from revenues thereunder pledged to the
payment of the principal of, redemption premium, if any, and
interest on this Bond and the issue of which it forms a part, of
moneys sufficient in amount for such purposes.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, [GOVERNMENTAL AUTHORITY], has caused
this Bond to be executed in its name on its behalf by the manual
or facsimile signature of the President of the Board of
Supervisors, its corporate seal or a facsimile thereof to be
hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of the
[Clerk of the Board of Supervisors] of [Governmental Authority],
all as of this ____ day of _____, _____.
[GOVERNMENTAL AUTHORITY]
[SEAL] By:
ATTEST:
By: ___________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
DATED:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated in
and issued under the provisions of the within-mentioned
Indenture. A signed original of the Opinion of Bond Counsel,
________________, ___________, ____________, pertaining to the
Bonds is on file with the undersigned.
___________________________
as Trustee
By:___________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be printed on all Bonds)
VALIDATION CERTIFICATE
STATE OF ___________________________
COUNTY OF __________________________
I, the undersigned [Clerk of the Board of Supervisors and
Chancery Clerk of [Governmental Authority]] do hereby certify
that the within Bond has been validated and confirmed by [Decree
of the Chancery Court of [Governmental Authority]], rendered on
the __ day of ______, ____.
[facsimile or manual signature]
[SEAL] [Clerk, Board of Supervisors and
Chancery Clerk of [Governmental
Authority]]
(THE FOLLOWING PROVISIONS SHALL APPEAR ON THE REVERSE SIDE OF THE
FORM OF BOND OR ON SUPPLEMENTAL PAGES THEREOF)
This Bond is one of the Issuer's _________________ Bonds,
____ Series (Mississippi Power & Light Company Project)
aggregating $_____________ in principal amount (the "Bonds")
issued pursuant to the provisions of [Sections 31-15-21 through
31-15-27, Mississippi Code of 1972, as amended (the "Act") and
the Constitution of the State, for the purpose of providing
funds, which, together with other funds to be made available
therefor, will be used to refund all of the Issuer's outstanding
______________ Bonds, Series _____ (Mississippi Power & Light
Company Project) (the "Prior Bonds"). The Prior Bonds were
issued on ________ __, ____, to defray the cost of acquisition,
construction, installation and equipping of certain air and water
pollution control facilities (the "Project") at the
__________________ (the "Plant") of Mississippi Power & Light
Company (the "Company"), located at ________________________,
____________, __________, within the Issuer; the Project was sold
by the Issuer to the Company pursuant to a _________________
Agreement between the Issuer and the Company dated as of
__________ __, _______; the Company is the owner and operator of
the Plant and the Project. The Prior Bonds are refunded with the
proceeds of the Bonds and other funds provided by the Company,]
pursuant to an a [Facility] Agreement between the Issuer and the
Company dated as of ______ __, ____ (the "Agreement"). The Bonds
are issued under and are equally and ratably secured by and
entitled to the protection of a Trust Indenture dated as of even
date of the Agreement (the "Indenture") from the Issuer to the
Trustee. Reference is hereby made to the Indenture for a
description of the rights, limitation of rights, duties and
obligations of the Issuer, Trustee, Paying Agent and the holders
of the Bonds.
The Bonds are issuable as fully registered Bonds in the
denomination of $_______ or any integral multiple thereof. At
the principal corporate trust office of the Trustee, in the
manner and subject to the limitations, conditions and charges
provided in the Indenture, Bonds may be exchanged for an equal
aggregate principal amount of Bonds of authorized denominations,
bearing interest at the same rate and maturing on the same date.
The Bonds are subject to optional redemption by the Issuer
prior to maturity if the Company shall exercise its option to
prepay the purchase price for the Project as provided in Sections
8.1(b) through (e) of the Agreement, and shall so prepay the said
purchase price in which event the Bonds shall be redeemed in
whole by the Issuer at any time at the principal amount thereof
plus accrued interest to the redemption date but without premium.
The Bonds are also subject to optional redemption by the
Issuer at the direction of the Company, prior to maturity, on and
after ______ __, ____, in whole at any time or in part from time
to time and if in part, by lot or in such other manner as may be
determined by the Trustee to be fair and equitable, at the
redemption prices (expressed as percentages of principal amount)
set forth in the table below plus accrued interest to the
redemption date:
Optional
Redemption
Redemption Period Price
_____________ through __________ ____%
_____________ through __________ ____%
____________ and thereafter ___%
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
180 days after a final determination or final action referred to
below, at a redemption price equal to the principal amount
thereof plus accrued interest thereon to the date of redemption,
but without premium, if, as a result of any final determination
of a federal court or final action of the Internal Revenue
Service, in a proceeding in which the Company has received timely
notice of and has had an opportunity to participate at its
expense, it is determined that as a result of the failure of the
Company to observe any covenant, agreement or representation in
the Agreement or the Issuer to observe any covenant, agreement or
representation in the Indenture, the interest payable on the
Bonds is not excludable from gross income of a holder of a Bond
(other than a holder who is a "substantial user" or "related
person" within the meaning of Section 147(a) of the Internal
Revenue Code of 1986, as amended, and applicable regulations
promulgated thereunder (the "Code")) under Section 103 of the
Code. The Bonds shall be redeemed either in whole or in part in
such principal amount that the interest payable on the Bonds
remaining outstanding after such redemption would not be included
in the gross income of a holder thereof (other than a holder who
is a "substantial user" or "related person" within the meaning of
Section 147(a) of the Code and applicable regulations promulgated
thereunder).
The Bonds shall also be subject to optional redemption by
the Issuer at the direction of the Company, in whole but not in
part, at any time prior to ______ __, ____, at a redemption price
equal to ____% of the principal amount being redeemed plus
accrued interest to the redemption date, if the Company shall
have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
In the event Bonds are called for redemption as aforesaid,
notice thereof identifying the Bonds (or portions of Bonds) to be
redeemed and the applicable redemption price is to be given by
the Trustee not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for redemption by first class
mail, postage prepaid, to the registered owners of the Bonds, but
failure to mail such notice or any defect therein shall not
affect the validity of any proceedings for redemption of any Bond
as to which no failure or defect occurred. Notice of optional
redemption shall be conditioned upon the deposit of moneys with
the Trustee on or before the date fixed for redemption and such
notice shall be of no effect unless such moneys are so deposited.
On the date designated for redemption, notice having been given
and, in the case of an optional redemption, moneys for payment of
the redemption price and accrued interest being held by the
Trustee, all as provided in the Indenture, the Bonds or portions
of Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of such
Bonds or such portions thereof. On such date, interest on such
Bonds or such portions thereof so called for redemption shall
cease to accrue. Such Bonds or such portions thereof so called
for redemption shall cease to be entitled to any benefit or
security under the Indenture, and the holders or registered
owners thereof shall have no rights in respect of such Bonds or
such portions thereof so called for redemption except to receive
payment of the redemption price thereof and accrued interest so
held by the Trustee. If a portion of this Bond shall be called
for redemption, a new Bond in principal amount equal to the
unredeemed portion hereof will be issued in authorized
denominations to the registered owner upon the surrender hereof.
This Bond and the issue of which it forms a part are limited
special obligations of the Issuer, the principal of, redemption
premium, if any, and interest on which are payable solely out of
the revenues and receipts derived by the Issuer under the
Agreement (except to the extent paid out of moneys attributable
to the proceeds derived from the sale of the Bonds, or to
interest and realized profit from the temporary investment of
such proceeds, or to amounts paid by the Company). The Issuer
shall not be obligated to pay the principal of the Bonds,
redemption premium, if any, or the interest thereon or other
costs incident thereto except from the said revenues and
receipts. The Bonds shall never constitute an indebtedness or
pledge of the general credit of the Issuer within the meaning of
any State constitutional provision or statutory limitation of
indebtedness and shall never constitute nor give rise to a
pecuniary liability of the Issuer or a charge against the general
credit or taxing powers of the Issuer, the State or any political
subdivision thereof. The Indenture provides that moneys
sufficient for the prompt payment when due of the principal of,
redemption premium, if any, and interest on the Bonds are to be
paid to the Trustee for the account of the Issuer and deposited
in trust in the Bond Fund described therein, that the Company's
payment obligations under the Agreement have been duly assigned
for that purpose, and that the rights of the Issuer under the
Agreement (other than with respect to certain fees and
administrative expenses and indemnification of the Issuer against
certain costs and risks defined in the Agreement) have been
assigned to the Trustee to secure payment of such principal of,
redemption premium, if any, and interest under the Indenture.
The Indenture prescribes the manner in which it may be
discharged, including a provision that the Bonds shall be deemed
to be paid if Governmental Obligations, as defined therein,
maturing as to principal and interest in such amounts and at such
times as will provide sufficient funds to pay the principal of,
redemption premium, if any, and interest on the Bonds and all
fees and expenses of the Trustee, shall have been deposited with
the Trustee, after which, and upon the giving of notice in
accordance with the Indenture, the Bonds shall no longer be
secured by or be entitled to the benefits of the Indenture,
except for any such payment from such Governmental Obligations.
In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all of the
Bonds issued under the Indenture and then outstanding, together
with interest accrued thereon, may become or may be declared due
and payable before the stated maturity thereof, subject to
rescission of acceleration as provided in the Indenture.
The holder of this Bond shall have no right to institute any
action for the enforcement of the Indenture or for the execution
of any trust thereof, except as provided in the Indenture. The
Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the holders of the
Bonds at any time by the Issuer and the Trustee without the
consent of the holders of the Bonds, and in certain other cases
such modifications may be made only with the consent of the
holders of not less than a majority in aggregate principal amount
of the Bonds at the time outstanding, as set forth in the
Indenture. Any such consent or waiver by the holder of this Bond
shall be conclusive and binding upon such holder and upon all
future holders of this Bond and of any Bond issued upon the
exchange of this Bond whether or not notation of such consent or
waiver is made upon this Bond. The Indenture also contains
provisions permitting the Trustee to waive certain past defaults
thereunder.
This Bond is transferable by the registered owner hereof in
person or by his attorney or legal representative at the
principal corporate trust office of the Trustee, but only in the
manner and subject to the limitations and conditions provided in
the Indenture and upon surrender and cancellation of this Bond.
Upon any such transfer the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange for this Bond a new
Bond or Bonds, registered in the name of the transferee, of
authorized denominations in aggregate principal amount equal to
the principal amount of this Bond, of the same maturity and
bearing interest at the same rate.
No covenant or agreement contained in this Bond or
the Indenture shall be deemed to be a covenant or agreement of
any officer or employee of the Issuer in his individual capacity,
and neither the members of the Issuer nor any official executing
this Bond shall be liable personally on this Bond or be subject
to any personal liability or accountability by reason of issuance
of this Bond. This Bond is issued with the intent that the laws
of the State of [Mississippi] shall govern its construction.
[FORM OF ASSIGNMENT]
(To be printed on all Bonds)
The following abbreviations, when used in the inscription on
the face of the within Bond, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - _____ Custodian _____ under Uniform
(cust) (minor)
Gifts to Minors Act ________________
(state)
Additional abbreviations may also be used though not in the
above list.
_________________________________________________
ASSIGNMENT
For value received,
hereby sell(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
______________________________
(Please print or typewrite Name and
Address, including Zip Code, of Assignee)
the within Bond and hereby irrevocably constitute(s) and
appoint(s)
attorney, with full power of substitution in the premises, to
transfer this Bond on the books of the within mentioned
Registrar.
DATED _____________
Signature Guaranteed:
___________________________ ______________________________
NOTICE: Signature(s) must NOTE: The name signed to this
be guaranteed by a member assignment must correspond with
firm of the New York Stock the name of the payee as it
Exchange or a commercial appears upon the face of the
bank or trust company. within Certificate in every
particular, without alteration,
enlargement or change
whatsoever.
[END OF FORM OF BOND]
and
WHEREAS, all things necessary to make the Bonds, when
validated by the [Chancery Court of [Governmental Authority]],
authenticated by the Trustee and issued as provided in this
Indenture, the valid, binding and legal limited obligations of
the County according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the amounts
pledged to the payment of principal of, redemption premium, if
any, and interest on the Bonds and a valid assignment of the
rights of the County under the Agreement have been done and
performed, and the creation, execution and delivery of this
Indenture, and the creation, execution and issuance of the Bonds,
subject to the terms hereof, have in all respects been duly
authorized.
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the Trustee
of the trusts hereby created, and of the purchase and acceptance
of the Bonds by the holders thereof, and also for and in
consideration of the sum of One Dollar ($1.00) to the County in
hand paid by the Trustee at or before the execution and delivery
of this Indenture, the receipt of which is hereby acknowledged,
and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, authenticated,
delivered, secured and accepted by all persons who shall from
time to time be or become holders thereof, and in order to secure
the payment of all the Bonds at any time issued and outstanding
hereunder and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and in
order to secure the performance and observance of all the
covenants, agreements and conditions therein or herein contained;
the County has executed and delivered this Indenture; the County
does hereby grant, bargain, sell, convey, assign and pledge to
the Trustee all rights, title and interests of the County in the
Agreement, including all revenues and receipts received or to be
received thereunder (except for payments for indemnification
under Section 4.6 of the Agreement and payment of fees and
expenses under Section 7.4 of the Agreement), as security for the
payment of the Bonds and the interest and the redemption premium,
if any, thereon and as security for the satisfaction of any other
obligation assumed by it in connection with such Bonds; and it is
mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of all and
singular the present and future holders of the Bonds issued and
to be issued under this Indenture, without preference, priority
or distinction as to lien or otherwise, except as otherwise
hereinafter provided, of any one Bond over any other Bond, by
reason of priority in the issue, sale or negotiation thereof or
otherwise;
PROVIDED, HOWEVER, that if the County, its successors or
assigns shall pay or cause to be paid, the principal of,
redemption premium, if any, and interest on the Bonds due or to
become due thereon, at the times and in the manner mentioned in
the Bonds, and shall cause the payments to be made into the Bond
Fund as required under Article V hereof, or shall provide, as
permitted hereby, for the payment thereof by depositing with the
Trustee the entire amount due or to become due thereon pursuant
to the provisions of Article VII hereof, and shall perform all
the covenants and conditions required of it by this Indenture,
and shall pay or cause to be paid to the Trustee all sums of
money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture
and the rights hereby granted shall terminate and the Trustee
shall give such written instruments as are necessary to satisfy
the lien hereof; otherwise this Indenture to be and remain in
full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and secured
hereunder are to be issued, authenticated and delivered, and all
said property, rights and interest, including, without
limitation, the amounts hereby assigned and pledged, are to be
dealt with and disposed of subject to the terms of this
Indenture, and the County agrees with the Trustee and with the
respective holders and owners from time to time, of said Bonds,
or any part thereof, as follows:
ARTICLE I
DEFINITIONS
All words and phrases defined in Article I of the Agreement
shall have the same meaning in this Indenture. In addition to
other definitions herein contained, the following words and
phrases shall have the following meanings:
"bondholder" or "holder" or "owner of the Bonds" means the
registered owner of any Bond.
"default" and "event of default" mean any occurrence or
event specified in Section 8.01 hereof.
"outstanding" or "Bonds outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds cancelled after purchase in the open
market or because of payment at or redemption prior to
maturity;
(b) Bonds deemed paid as provided in Article VII
hereof; and
(c) Bonds in lieu of which other Bonds have been
authenticated under Section 2.08 hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No Bonds may be
issued under the provisions of this Indenture except in
accordance with this Article II.
SECTION 2.02. Issuance of Bonds. There shall be issued
under and secured by this Indenture Bonds of the County in the
aggregate principal amount of ___________________ Dollars
($________) for the purpose of providing funds, which, together
with other funds made available therefor by the Company, are
sufficient to [refund all of the outstanding Prior Bonds.] The
Bonds shall be designated "[Governmental Authority] _______
Bonds, ____ Series (Mississippi Power & Light Company Project),"
dated the ___ day of _________, _____ (or as otherwise provided
in this Indenture), shall bear interest from the date determined
pursuant to Section 2.04 hereof at the rate of ____ per centum
(__%) per annum, which interest shall be payable on _______ __,
____, and semi-annually thereafter on the __ day of _________ and
________ of each year until the principal sum is paid or duly
provided for, and shall thereupon be stated to mature, subject to
the right of prior redemption as hereinafter set forth, on the __
day of _______, ____.
The Bonds are and will continue to be payable as to
principal, redemption premium, if any, and interest solely out of
and secured by an irrevocable pledge of the revenues to be
derived from the sale of the Project, and any other sums which
may be received from or in connection with the Project, all as
provided in this Indenture; the Bonds will be limited special
obligations of the County and shall never constitute nor give
rise to any pecuniary liability of the County or a charge against
its general credit or taxing powers, nor shall the County be
obligated to pay the Bonds or the interest or redemption premium,
if any, thereon except from revenues to be derived from the sale
of the Project, and any other sums which may be received from or
in connection with the Project as provided for herein.
SECTION 2.03. Form of Bonds. The Bonds are issuable as
fully registered Bonds in denominations of $______ or any
multiple thereof. The Bonds shall be substantially in the form
hereinabove set forth, with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture, and may have endorsed thereon such legends or text as
may be necessary or appropriate to conform to any applicable
rules and regulations of any governmental authority or any usage
or requirement of law with respect thereto.
SECTION 2.04. Details, Execution and Payment. Each Bond
shall bear interest from the interest payment date next preceding
the date on which it is authenticated, unless authenticated prior
to ________ __, ____, in which event it shall bear interest from
_______ __, ____, and unless authenticated upon an interest
payment date, in which case it shall bear interest from such
interest payment date; provided, however, that if at the time of
authentication of any registered Bond interest is in default,
such Bond shall bear interest from the date to which interest has
been paid.
The Bonds shall be executed by the manual or facsimile
signature of the [President of the Board of Supervisors] of the
County and the seal of the County shall be affixed, impressed,
imprinted or otherwise reproduced thereon and attested by the
manual or facsimile signature of the [Clerk of said Board of
Supervisors.]
In case any officer whose signature or facsimile signature
shall appear on any Bonds shall cease to be such officer before
the delivery of such Bonds, such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he had remained in office until such
delivery, and also any Bond may be signed by or bear the
facsimile signature of such persons as at the actual time of the
execution of such Bond shall be the proper officers to sign such
Bond although at the date of such Bond such persons may not have
been such officers.
The principal of, redemption premium, if any, and the
interest on the Bonds shall be payable in any coin or currency of
the United States of America which on the respective dates of
payment thereof is legal tender for the payment of public and
private debts. The principal of and redemption premium, if any,
on all Bonds shall be payable at the principal office of the
Trustee and Paying Agent, and payment of the interest on each
Bond shall be made by the Trustee on each interest payment date
to the person appearing on the registration books of the County
hereinafter provided for as the registered owner thereof on the
fifteenth day of the month preceding such interest payment date,
by check in clearinghouse funds mailed to such registered owner
at his address as it appears on such registration books. Payment
of the principal of all Bonds shall be made upon the presentation
and surrender of such Bonds as the same shall become due and
payable.
SECTION 2.05. Authentication; Exchange, Transfer and
Ownership of Bonds. Only such of the Bonds as shall have
endorsed thereon a certificate of authentication substantially in
the form hereinabove set forth, duly executed by the Trustee,
shall be entitled to any benefit or security under this
Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the
Trustee upon any such Bond shall be conclusive evidence that such
Bond has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on any
Bond shall be deemed to have been duly executed if signed by an
authorized officer of the Trustee, but it shall not be necessary
that the same officer sign the certificate of authentication on
all of the Bonds that may be issued hereunder at any one time.
Subject to the provisions of Section 2.10 hereof:
(a) Bonds, upon surrender thereof at the principal
office of the Trustee, together with an assignment duly
executed by the registered owner or his attorney or
legal representative in such form as shall be
satisfactory to the Trustee, may, at the option of the
registered owner thereof, be exchanged for an equal
aggregate principal amount of Bonds of the same
maturity, of any denomination or denominations
authorized by this Indenture, and bearing interest at
the same rate and in the same form as the Bonds
surrendered for exchange.
(b) The County hereby authorizes the exchange of
Bonds at the principal office of the Trustee.
(c) The Trustee is hereby appointed as Bond
Registrar and as such shall keep books for the
registration and for the transfer of Bonds as provided
in this Indenture.
(d) Xxx Xxxx may be transferred only upon the
books kept for the registration and transfer of Bonds
upon surrender thereof to the Bond Registrar together
with an assignment duly executed by the registered
owner or his attorney or legal representative in such
form as shall be satisfactory to the Bond Registrar.
Upon any such transfer the County shall execute and the
Trustee shall authenticate and deliver in exchange for
such Bond a new Bond or Bonds, registered in the name
of the transferee, of any denomination or denominations
authorized by this Indenture in an aggregate principal
amount equal to the principal amount of such Bond, of
the same maturity and bearing interest at the same
rate.
(e) In all cases in which Bonds shall be exchanged
or Bonds shall be transferred hereunder, the County
shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in
accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or transfer
shall forthwith be cancelled by the Trustee. Such
transfers of registration or exchanges of Bonds shall
be without charge to holders of such Bonds, but any
taxes or other governmental charge required to be paid
with respect to such exchange or transfer shall be paid
by the holder of the Bond, and such charge shall be
paid before any such new Bond shall be delivered.
Neither the County nor the Trustee shall be required to
make any such exchange or transfer of Bonds during the
fifteen (15) days immediately preceding the selection
of Bonds for such redemption or after such Bonds or any
portion thereof has been selected for redemption.
(f) Any registered owner of any Bond is hereby
granted power to transfer absolute title thereto by
assignment thereof to a bona fide purchaser for value
(present or antecedent) without notice of prior
defenses or equities or claims of ownership enforceable
against his assignor or any person in the chain of
title and before the maturity of such Bond. Every
prior holder or owner of any Bond shall be deemed to
have waived and renounced all of his equities or rights
therein in favor of every such bona fide purchaser, and
every such bona fide purchaser shall acquire absolute
title thereto and to all rights represented thereby.
(g) At reasonable times and under reasonable
regulations established by the Trustee, the list of
registered owners of the Bonds may be inspected and
copied by the Company or by holders or owners (or a
designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such
possession or ownership and the authority of such
designated representative to be evidenced to the
satisfaction of the Trustee.
SECTION 2.06. Delivery of Bonds; Application of Proceeds.
Upon the execution and delivery of this Indenture, the County
shall execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds and deliver them to the purchasers thereof
as directed by the County as hereinafter in this Section 2.06
provided.
Prior to the delivery by the Trustee of any such Bonds there
shall be filed with the Trustee:
(a) A copy, certified by the [Clerk of the
Board of Supervisors] of the County, of the resolution
adopted by said [Board of Supervisors] authorizing the
execution and delivery of the Agreement and authorizing
the execution of this Indenture and the issuance of the
Bonds.
(b) An original duly executed counterpart of
the Agreement and an original duly executed counterpart
of this Indenture.
(c) A request and authorization to the
Trustee on behalf of the County, signed by the
[President of the Board of Supervisors] of the County,
to authenticate and deliver the Bonds to the purchasers
therein identified upon payment to the Trustee but for
the account of the County, of a sum specified in such
request and authorization. The proceeds of such
payment shall be paid over to the Trustee; and
deposited or transferred as follows:
(i) To the Trustee for deposit in the Bond
Fund, a sum equal to the accrued interest, if any,
paid by the original purchasers of the Bonds; and
[(ii) To the trustee for the Prior Bonds, the
balance of such proceeds.]
SECTION 2.07. Temporary Bonds. Until definitive Bonds are
ready for delivery, there may be executed, and upon request of
the County the Trustee shall authenticate and deliver, in lieu of
definitive Bonds and subject to the same limitations and
conditions, temporary printed, engraved, lithographed or
typewritten Bonds, in the form of fully registered Bonds in
denominations of $________ or any multiple thereof, as the County
by resolution may provide, substantially of the tenor hereinabove
set forth and with such appropriate omissions, insertions and
variations as may be required.
If temporary Bonds shall be issued, the County shall cause
the definitive Bonds to be prepared and to be executed and
delivered to the Trustee, and the Trustee, upon presentation to
it at its principal office of any temporary Bond, shall cancel
the same and authenticate and deliver in exchange therefor at the
principal office of the Trustee, without charge to the holder
thereof, a definitive Bond or Bonds of an equal aggregate
principal amount, of the same maturity and bearing interest at
the same rate as the temporary Bond surrendered. Until so
exchanged the temporary Bonds shall in all respects be entitled
to the same benefit and security of this Indenture as the
definitive Bonds to be issued and authenticated hereunder.
SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In case
any Bond secured hereby shall become mutilated or be destroyed or
lost, the County shall cause to be executed, and the Trustee
shall authenticate and deliver, a new Bond of like date and tenor
in exchange and substitution for and upon the cancellation of
such mutilated Bond, or in lieu of and in substitution for such
Bond, if any, destroyed or lost, upon the holder's paying the
reasonable expenses and charges of the County and the Trustee in
connection therewith and, in the case of a Bond destroyed or
lost, the holder's filing with the Trustee evidence satisfactory
to it and to the County that such Bond was destroyed or lost, and
of his ownership thereof, and furnishing the County and the
Trustee indemnity satisfactory to them.
SECTION 2.09. Destruction of Bonds. Whenever any
outstanding Bonds shall be delivered to the Trustee upon the
cancellation thereof pursuant to this Indenture, upon payment of
the principal amount represented thereby or for replacement of a
mutilated Bond pursuant to Section 2.08 hereof, such Bonds shall
be promptly cancelled and destroyed by the Trustee and
counterparts of a certificate of destruction evidencing such
destruction shall be furnished by the Trustee to the County and
the Company.
Section 2.10. Book-Entry Only System. Upon issuance of the
Bonds, one fully-registered Bond will be registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Securities Depository") in the aggregate principal amount of the
Bonds. So long as Cede & Co. is the registered owner of the
Bonds, as nominee of the Securities Depository, references herein
to the holders of the Bonds or registered owner of the Bonds
shall mean Cede & Co. and shall not mean the beneficial owners of
the Bonds.
The Letter of Representations in substantially the form
attached hereto as Exhibit A, with such changes, omissions,
insertions and revisions as the Clerk of the Board of Supervisors
of the County and the Trustee may approve at any time, is hereby
approved, and the County and the Trustee shall execute and
deliver such Letter of Representations. The approval of the
County and the Trustee of any changes, omissions, insertions and
revisions to the Letter of Representations shall be conclusively
established by the execution of the Letter of Representations by
[Clerk of the Board of Supervisors] of the County and the
Trustee.
Transfers of beneficial ownership interests in the Bonds
will be accomplished by book entries made by the Securities
Depository, and, in turn by the participants in the Securities
Depository (the "Participants") who act on behalf of the indirect
participants in the Securities Depository (the "Indirect
Participants") and the beneficial owners of the Bonds. For each
transfer and exchange of beneficial ownership in the Bonds, the
beneficial owner may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in
relation thereto.
The Trustee and the County shall recognize the Securities
Depository or its nominee, Cede & Co., as the owner of the Bonds
for all purposes, including notices and voting. Conveyance of
notices and other communications by the Securities Depository to
Participants and by such Participants to Indirect Participants,
and by Participants and Indirect Participants to beneficial
owners of the Bonds will be governed by arrangements among the
Securities Depository, the Participants and the Indirect
Participants, subject to any statutory and regulatory
requirements as may be in effect from time to time.
NEITHER THE COUNTY NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR INDIRECT
PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS WITH RESPECT
TO (i) THE ACCURACY OF ANY RECORDS MAINTAINED BY THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR INDIRECT PARTICIPANT; (ii)
THE PAYMENT BY THE SECURITIES DEPOSITORY OR ANY SUCH PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER
IN RESPECT OF THE PRINCIPAL AMOUNT OR REDEMPTION PRICE OF OR
INTEREST ON THE BONDS; (iii) THE DELIVERY TO THE SECURITIES
DEPOSITORY OR ANY SUCH PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED
TO BE GIVEN TO HOLDERS OF THE BONDS UNDER THE TERMS OF THIS
INDENTURE; (iv) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR
(v) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY THE SECURITIES
DEPOSITORY AS HOLDER OF THE BONDS.
The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by
giving notice to the Trustee and discharging its responsibilities
with respect thereto under the applicable law. In such event, or
in the event the County at the request of the Company elects to
use a similar book-entry system with another securities
depository, there may be a successor securities depository (all
references to the Securities Depository include any such
successor). The County at the request of the Company may also
determine to discontinue participation in the system of book-
entry transfer through the Securities Depository at any time by
giving reasonable notice to the Securities Depository. If the
book-entry system is terminated, Bond certificates will be
delivered to the beneficial owners, at the expense of the
Company, as provided herein. The beneficial owners of the Bonds,
upon registration of certificates held in the beneficial owners'
names, will then become the registered owners of the Bonds and
registration, transfer and exchange of the Bonds by such owners
will be governed by Section 2.05 herein.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. The Bonds are
subject to optional redemption by the County prior to maturity,
if the Company shall exercise its option to prepay the purchase
price for the Project as provided in Sections 8.1(b) through (e)
of the Agreement, and shall so prepay the said purchase price in
which event the Bonds shall be redeemed in whole by the County at
any time at the principal amount thereof plus accrued interest to
the redemption date but without premium.
The Bonds are also subject to optional redemption prior to
maturity by the County, at the direction of the Company, prior to
maturity, on and after _____ __, ____, in whole at any time or in
part from time to time and if in part, by lot or in such other
manner as may be determined by the Trustee to be fair and
equitable, at the redemption prices (expressed as percentages of
principal amount) set forth in the table below plus accrued
interest to the redemption date:
Optional
Redemption
Redemption Period Price
____________ through ____________ ___%
____________ through ____________ ___%
____________ and thereafter ___%
In addition, the Bonds will be subject to mandatory
redemption on any date prior to their scheduled maturity, and
shall be redeemed prior to their scheduled maturity no later than
180 days after a final determination or final action referred to
below, at a redemption price equal to the principal amount
thereof plus accrued interest thereon to the date of redemption,
but without premium, if, as a result of any final determination
of a federal court or final action of the Internal Revenue
Service, in a proceeding in which the Company has received timely
notice of and has had an opportunity to participate at its
expense, it is determined that as a result of the failure of the
Company to observe any covenant, agreement or representation in
the Agreement or the Issuer to observe any covenant, agreement or
representation in this Indenture, the interest payable on the
Bonds is not excludable from gross income of a holder of a Bond
(other than a holder who is a "substantial user" of the Project
or "related person" within the meaning of Section 147 of the
Internal Revenue Code of 1986, as amended, and applicable
regulations promulgated thereunder (the "Code")) under Section
103 of the Code. The Bonds shall be redeemed, whether in whole
or in part, in such principal amount that the interest payable on
the Bonds remaining outstanding after such redemption would not
be included in the gross income of a holder thereof (other than a
holder who is a "substantial user" or "related person" within the
meaning of Section 147(a) of the Code and applicable regulations
promulgated thereunder).
The Bonds shall also be subject to optional redemption by
the County at the direction of the Company, in whole but not in
part, at any time prior to ________ __, ____, at a redemption
price equal to ____% of the principal amount being redeemed plus
accrued interest to the redemption date, if the Company shall
have consolidated with or merged with or into another
corporation, or sold or otherwise transferred all or
substantially all of its assets.
If less than all of the Bonds shall be called for
redemption, the particular Bonds or portions of registered Bonds
to be redeemed shall be selected by the Trustee by lot or in such
other manner as the Trustee in its discretion may determine;
provided, however, that the portion of any registered Bond to be
redeemed shall be in the principal amount of $____ or some
multiple thereof, and that, in selecting Bonds for redemption,
the Trustee shall treat each Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such
registered Bond by $____.
SECTION 3.02. Notice of Redemption. At least thirty (30)
days but not more than sixty (60) days before the redemption date
of any Bonds the Trustee shall cause a notice of any such
redemption, either in whole or in part, to be mailed, postage
prepaid, to all registered owners of Bonds to be redeemed in
whole or in part at their addresses as they appear on the
registration books hereinabove provided for, but failure so to
mail any such notice shall not affect the validity of the
proceedings for such redemption. Each such notice shall set
forth the date fixed for redemption, the redemption price to be
paid and, if less than all of the Bonds then outstanding shall be
called for redemption, the distinctive numbers and letters, if
any, of such Bonds to be redeemed and, in the case of Bonds to be
redeemed in part only, the portion of the principal amount
thereof to be redeemed. In case any Bond is to be redeemed in
part only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon
surrender of such Bond, a new Bond in principal amount equal to
the unredeemed portion of such Bond will be issued.
If at the time of giving of notice of an optional redemption
there shall not have been deposited with the Trustee moneys
sufficient to redeem all the Bonds called for redemption, such
notice shall state that it is conditioned upon the deposit of the
redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no
effect unless such moneys are so deposited. If such moneys are
not so deposited, the Bonds shall not be redeemed and the Trustee
shall, in the manner in which notice of redemption was given,
give notice that such moneys were not deposited.
SECTION 3.03. Effect of Call for Redemption. On the date
so designated for redemption, moneys for payment of the
redemption price and accrued interest to the redemption date
being held by the Trustee in trust for the holders of the Bonds
or portions thereof to be redeemed, all as provided in this
Indenture, the Bonds or portions of Bonds so called for
redemption shall become and be due and payable at the redemption
price provided for redemption of such Bonds or portions of Bonds
on such date, interest on the Bonds or portions of Bonds so
called for redemption shall cease to accrue, such Bonds or
portions of Bonds shall cease to be entitled to any benefit or
security under this Indenture, and the holders or registered
owners of such Bonds or portions of Bonds shall have no rights in
respect thereof except to receive payment of the redemption price
thereof and accrued interest to the redemption date and, to the
extent provided in Section 3.04 of this Article, to receive Bonds
for any unredeemed portions of Bonds.
SECTION 3.04. Partial Redemption. In case part but not all
of an outstanding Bond shall be selected for redemption, the
registered owner thereof or his attorney or legal representative
shall present and surrender such bond to the Trustee for payment
of the principal amount thereof so called for redemption, and the
County shall execute and the Trustee shall authenticate and
deliver to or upon the order of such registered owner or his
attorney or legal representative, without charge therefor, for
the unredeemed portion of the principal amount of the Bond so
surrendered, a Bond of the same maturity and bearing interest at
the same rate.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All moneys
which the Trustee shall have withdrawn from the Bond Fund or
shall have received from any other source and set aside, or
deposited with the paying agents, for the purpose of paying any
of the Bonds hereby secured, either at the maturity thereof or
upon call for redemption, shall be held in trust for the
respective holders of such Bonds. But any moneys which shall be
so set aside or deposited by the Trustee and which shall remain
unclaimed by the holders of such Bonds for a period of six (6)
years after the date on which such Bonds shall have become due
and payable shall upon request in writing be paid to the Company
and, thereafter, the holders of such Bonds shall look only to the
Company for the payment thereof and then only to the extent of
the amount so received without any interest thereon, and the
County, the Trustee shall have no responsibility with respect to
such moneys.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal, Redemption Premium, if
any, and Interest. The County covenants that it will promptly
pay the principal of, redemption premium, if any, and interest on
every Bond issued under this Indenture at the place, on the dates
and in the manner provided herein and in said Bonds according to
the true intent and meaning thereof, but only from the revenues
and receipts specifically pledged herein for such purposes.
SECTION 4.02. Performance of Covenants; County. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its
proceedings pertaining hereto. The County covenants that it is
duly authorized under the Constitution and laws of the State of
[Mississippi,] including particularly and without limitation the
Act, to issue the Bonds and to execute this Indenture, to assign
and pledge the Agreement, the amounts payable under the Agreement
and to pledge the amounts hereby pledged in the manner and to the
extent herein set forth; that all action on its part necessary
for the issuance of the Bonds and the execution and delivery of
this Indenture has been duly and effectively taken, and that the
Bonds in the hands of the holders and owners thereof are and will
be valid and enforceable obligations of the County according to
the terms thereof and hereof.
SECTION 4.03. Instruments of Further Assurance; Liens and
Encumbrances. The County covenants that it will do, execute,
acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indenture or indentures
supplemental hereto and such further acts, instruments and
transfers as the Trustee may reasonably require for the better
pledging and assigning unto the Trustee all and singular the
purchase price installments and any other income and other moneys
pledged hereby to the payment of the principal of and interest
and redemption premium, if any, on the Bonds. The County further
covenants that it will not create or suffer to be created any
lien, encumbrance or charge upon its interest in the Agreement,
including purchase price installments or any other income from
the Agreement; provided, however, that nothing in this Section
4.03 shall require the County to pay or cause to be discharged,
or make provision for, any such lien, encumbrance or charge so
long as the validity thereof shall be contested in good faith and
by appropriate legal proceedings.
SECTION 4.04. Recordation. The Company is obligated
pursuant to Section 9.7 of the Agreement to take all actions that
at the time and from time to time may be necessary (or, in the
opinion of the Trustee, may be necessary) to perfect, preserve,
protect and secure the interests of the County and the Trustee,
or either, in and to the revenues and receipts receivable by the
County pursuant to the Agreement, including, without limitation,
the filing of all financing and continuation statements that may
be required under the [Mississippi] Uniform Commercial Code. The
County and the Trustee covenant that they will execute all
documents necessary to permit the Company to fulfill its
obligations under said Section 9.7 of the Agreement.
SECTION 4.05. Rights Under Agreement. The Agreement, a
duly executed counterpart of which has been filed with the
Trustee, sets forth the covenants and obligations of the County
and the Company, including provisions that subsequent to the
issuance of Bonds and prior to their payment in full or provision
for payment thereof in accordance with the provisions thereof the
Agreement may not be amended, changed, modified, altered or
terminated (other than as provided therein) without the
concurring written consent of the Trustee, and reference is
hereby made to the same for a detailed statement of said
covenants and obligations of the Company thereunder; and the
County agrees that the Trustee in its own name or in the name of
the County may enforce all rights of the County and all
obligations of the Company under and pursuant to the Agreement
for and on behalf of the Bondholders, whether or not the County
is in default hereunder.
SECTION 4.06. Prohibited Activities. The County and the
Trustee covenant that neither of them shall take any action or
suffer or permit any action to be taken or condition to exist
which causes or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
Issuer and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations of the
County to make payments hereunder in respect of the principal of,
redemption premium, if any, and interest on such Bonds. Such
Bonds are not general obligations of the County but are limited
obligations payable solely from revenues and receipts derived
from the sale of the Project and as authorized by the Act and
provided herein.
The payments to be made by the Company under the Agreement
are to be paid directly to the Trustee for the account of the
County and deposited in the Bond Fund. Such payments shall be
sufficient in amount to provide for, and are pledged to secure,
the payment of the principal of, redemption premium, if any, and
interest on the Bonds.
SECTION 5.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "[Governmental Authority] Bonds, ____ Series
(Mississippi Power & Light Company Project) Bond Fund" (the "Bond
Fund"). Moneys deposited therein shall be used to pay the
principal of, redemption premium, if any, and interest on the
Bonds as provided in this Indenture.
SECTION 5.03. Payments into the Bond Fund. There shall be
deposited into the Bond Fund any accrued interest received from
the sale of the Bonds. In addition, there shall be deposited
into the Bond Fund, as and when received, (i) all purchase price
payments and the interest thereon made pursuant to the Agreement;
and (ii) all other moneys received by the Trustee under and
pursuant to any of the provisions of the Agreement which are
required, or which are accompanied by directions from the Company
that such moneys are, to be paid into the Bond Fund. The County
hereby covenants and agrees that, so long as any of the Bonds are
outstanding, it will deposit, or cause to be paid to the Trustee
for deposit in the Bond Fund for its account, sufficient sums
from revenues and receipts derived from the sale of the Project,
whether or not under and pursuant to the Agreement, promptly to
meet and pay the principal of, redemption premium, if any, and
interest on the Bonds as the same become due and payable;
provided, however, that nothing herein shall be construed as
requiring the County to use any funds or revenues from any source
other than receipts and revenues derived from the sale of the
Project.
SECTION 5.04. Use of Moneys in the Bond Fund. Except as
provided in Section 5.08 hereof, moneys in the Bond Fund shall be
used solely for the payment of the principal of, redemption
premium, if any, and interest on the Bonds.
SECTION 5.05. Custody of the Bond Fund. The Bond Fund
shall be in the custody of the Trustee but in the name of the
County, and the County hereby authorizes and directs the Trustee
to withdraw sufficient funds from the Bond Fund to pay the
principal of, redemption premium, if any, and interest on the
Bonds as the same become due and payable for the purpose of
paying said principal of, redemption premium, if any, and
interest, which authorization and direction the Trustee hereby
accepts.
SECTION 5.06. Non-presentment of Bonds. In the event any
Bond shall not be presented for payment when the principal
thereof becomes due, whether at stated maturity, upon redemption,
or otherwise, if funds sufficient to pay such Bond shall have
been made available to the Trustee for the benefit of the holder
thereof, all liability of the Issuer to the holder thereof for
the payment of such Bond shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such funds, without liability for interest
thereon, for the benefit of the holder of such Bond for a period
of six years after such due date (or, if shorter, the period
ending on the date immediately preceding the date that such funds
would escheat to the State of Mississippi), at which time such
funds shall be transferred, upon written request from a Company
Representative to the Company which shall hold such funds without
liability for interest thereon, for the benefit of the holder of
such Bond who shall thereafter be restricted exclusively to a
claim against the Company for any claim of whatever nature on his
part with respect to said Bond.
SECTION 5.07. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for the
account of the Bond Fund under any provision of this Indenture or
the Agreement shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of the Bonds, notice of the redemption of which has
been duly given and for moneys deposited with or paid to the
Trustee pursuant to Article VII hereof, shall, while held by the
Trustee, constitute part of the trust estate and be subject to
the security interest created hereby.
SECTION 5.08. Repayment to the Company from Bond Fund. Any
amounts remaining in the Bond Fund after payment in full of the
principal of, redemption premium, if any, and interest on the
Bonds and the fees and expenses of the Trustee and all other
amounts required to be paid hereunder shall belong and be paid to
the Company.
SECTION 5.09. Creation and Use of the Rebate Fund. There
is hereby created and established a special fund to be designated
"[Governmental Authority] ________ Bonds, ____ Series
(Mississippi Power & Light Company Project) Rebate Fund" (the
"Rebate Fund") which shall be held by the Trustee, in trust, for
the benefit of the County to secure payment to the United States
Government of all amounts to become due to the United States
Government under the rebate requirements set forth in Section
148(f) of the Code and to facilitate compliance by the Issuer,
the Trustee, and the Company with the provisions of the Company's
Tax Certificate and Covenants pertaining to the Bonds (the
"Certificate"). Capitalized terms and phrases used in this
Section and not otherwise defined in this Indenture, shall have
the meaning given to those terms in the Certificate.
The Trustee shall apply any moneys in the Rebate Fund in
accordance with written instructions from the Company. The
Company is obligated, pursuant to the Certificate, to give such
instructions to the Trustee in accordance with the Certificate.
The County and the Trustee shall not make or agree to make
any payments or participate in any non-arms-length transaction
which would have the effect of reducing the earnings on
investments, thereby reducing the amount required to be rebated
to the United States under Section 148(f) of the Code and
regulations thereunder.
The Rebate Fund shall not provide further security for the
Bonds.
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Moneys. Except as otherwise
provided in this Article VI, any moneys held as part of the Bond
Fund shall be invested and reinvested by the Trustee, subject to
applicable provisions of law, only as directed from time to time
by the Company in writing, including, without limitation, in
direct obligations of, or obligations guaranteed by or other
obligations (including repurchase agreements) fully secured by
direct obligations of, the United States of America or
obligations of the Federal National Mortgage Association, the
Federal Intermediate Credit Banks, Federal Banks for
Cooperatives, Federal Land Banks, Federal Home Loan Bank,
Government National Mortgage Association, Export-Import Bank of
the United States, United States Postal Service, Tennessee Valley
Authority or any other agency or corporation which is or may
hereafter be created by or pursuant to an Act of the Congress of
the United States as an agency or instrumentality thereof; or
direct obligations of, or obligations guaranteed by, any state of
the United States which is rated in the two highest ratings by a
recognized national rating service in Municipal Bonds; or Public
Housing Bonds, Temporary Notes, or Preliminary Loan Notes, fully
secured by contracts with the United States; or negotiable or non-
negotiable certificates of deposit, time deposits or bankers
acceptances issued by the Trustee or any bank, trust company or
national banking association which is located in the United
States of America (including branch offices of foreign banks) or
in any foreign country and which has a capital stock and surplus
aggregating at least $10,000,000; provided, however, that the
negotiable or non-negotiable certificates of deposit, time
deposits, or bankers acceptances of any bank, trust company or
national association may not exceed $100,000 if the aggregate
capital stock and surplus is less than $25,000,000; or commercial
paper rated by Xxxxx'x National Credit Office P-1 and S&P's A-1.
Such certificates of deposit, time deposits or bankers
acceptances may be purchased directly or indirectly from such a
bank, trust company or national banking association including the
Trustee; including in each case any hereafter issued obligations
or certificates. Each investment shall have a maturity not
exceeding the time within which the funds invested therein are
required to be available. The Trustee may, as directed in
writing by the Company, and to the extent required for payments
from the Bond Fund shall, sell any such obligation at any time,
and the proceeds of such sale, and of all payments at maturity
and upon redemption of such investments, shall be held in the
Bond Fund in which such obligations were held. The Trustee shall
not be held liable for any loss incurred by reason of such sale.
Such investments shall be made pursuant to written direction of
the Company by its authorized officer (being any Vice President,
the Treasurer, any Assistant Treasurer or the Company
Representative) to the Trustee. Any such investments shall be
held by or under the control of the Trustee and shall be deemed
at all times a part of the Bond Fund for which they were made.
The interest accruing on, any profit realized from, and any loss
resulting from, investment of moneys shall be credited or
charged, as the case may be, to the Bond Fund in which the
investment was made. The Trustee covenants to follow the
investment directions of the Company and shall not be held liable
for any loss resulting from such investment. The County further
covenants and represents to and for the benefit of the purchasers
of the Bonds that no use will be made of the proceeds from the
issue and sale of the Bonds which, on the basis of the facts,
estimates and circumstances now known and reasonably expected to
be in existence on the date of issue of the Bonds, would cause
the Bonds to be classified as of the date of issue as "arbitrage
bonds" within the meaning of Section 148 of the Code. Pursuant
to such covenant, the County obligates itself to comply
throughout the term of the Bonds with the requirements of Section
148 of the Code.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Discharge of Indenture. When the principal
of, redemption premium, if any, and interest on all of the Bonds
shall have been paid, or deemed paid as provided in this Article,
and if the County shall not then be in default under any of its
other obligations under the terms of this Indenture, and if the
Company shall have caused to be paid to the Trustee all other
sums of money due or to become due according to the provisions
hereof (or shall have made arrangements satisfactory to the
Trustee for such payment) and shall not then be in default under
any of its obligations under the terms of the Agreement, then
this Indenture and the lien created hereby shall be discharged
and satisfied, and thereupon the Trustee shall execute and
deliver to the Issuer such instruments in writing as shall be
requisite to cancel and discharge the Agreement and to evidence
the discharge and cancellation of this Indenture; provided,
however, that the Trustee shall remain obligated to hold in trust
any amounts then remaining in the Bond Fund and to pay to the
holders of the Bonds any amounts held by the Trustee for the
payment of the principal of, redemption premium, if any, and
interest on the Bonds according to the provisions of Section 5.04
hereof and to pay any remaining amounts to the Company as
provided in Article V hereof.
Any Bond shall be deemed to be paid within the meaning of
this Article when delivered to the Trustee for cancellation or
when payment of the principal of, redemption premium, if any, and
interest thereon to the due date thereof (whether at maturity, or
upon redemption, or otherwise) either (a) shall have been made or
caused to be made in accordance with the terms thereof, or (b)
shall have been provided by depositing with the Trustee, for such
payment, (i) moneys sufficient to make such payment or (ii)
moneys and/or Governmental Obligations maturing as to principal
and interest in such amounts and at such times as will insure the
availability of sufficient moneys to make such payment, provided
that all necessary and proper fees, compensation and expenses of
the Trustee pertaining to the Bonds with respect to which such
deposit is made shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. At such times
as a Bond shall be deemed to be paid hereunder, as aforesaid, it
shall no longer be secured by or entitled to the benefits of this
Indenture, except for the purposes of any such payment from such
moneys or Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (b)
of the immediately preceding paragraph shall be deemed a payment
of such Bonds as aforesaid until (1) proper notice of redemption
of such Bonds shall have been given in accordance with Article
III hereof, or in the event said Bonds are not by their terms
subject to redemption within the next succeeding sixty days,
until the Company shall have given the Trustee on behalf of the
County, in form satisfactory to the Trustee, irrevocable
instructions to give proper notice of such redemption and to
notify, as soon as practicable, the holders of the Bonds in
accordance with Article III hereof that the deposit required by
(b) above has been made with the Trustee and that said Bonds are
deemed to have been paid in accordance with this Article and
stating such maturity or redemption date upon which moneys are to
be available for the payment of the principal of and redemption
premium, if any, on said Bonds, plus interest, or (2) the stated
maturity of such Bonds. Any moneys so deposited with the Trustee
as provided in this Article VII, only at the written direction or
telecopy direction confirmed in writing of the Company, may also
be invested and reinvested in Governmental Obligations maturing
in the amounts and times as hereinbefore set forth, and all
income from all Governmental Obligations in the hands of the
Trustee pursuant to this Article which is not required for the
payment of the Bonds and interest and redemption premium thereon
with respect to which such moneys shall have been so deposited,
shall be deposited in the Bond Fund as and when realized and
collected for use and application as are other moneys deposited
in that Fund; provided, in addition, that the Trustee shall have
received the opinion of Bond Counsel to the effect that such
deposit does not adversely effect the exclusion of the interest
on the Bonds from gross income for purposes of federal income
taxation.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 8.01. Events of Default. Each of the
following events shall constitute and be referred to in this
Indenture as an "event of default":
(a) default in the due and punctual payment of
any interest on any Bond hereby secured and outstanding and
the continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of
the principal of and redemption premium, if any, on any Bond
hereby secured and outstanding, whether at the stated
maturity thereof, or upon proceedings for the unconditional
redemption thereof, or upon the maturity thereof by
acceleration;
(c) default in the payment of any other amount
required to be paid under this Indenture or in the
performance or observance of any other of the covenants,
agreements or conditions contained in this Indenture, or in
the Bonds issued under this Indenture, and continuance
thereof for a period of ninety (90) days after written
notice specifying such failure and requesting that it be
remedied, shall have been given to the County and the
Company by the Trustee, which may give such notice in its
discretion and shall give such notice at the written request
of holders of not less than 10% in aggregate principal
amount of the Bonds then outstanding, unless the Trustee, or
the Trustee and holders of any aggregate principal amount of
Bonds not less than the aggregate principal amount of Bonds
the holders of which requested such notice, as the case may
be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the
Trustee, or the Trustee and the holders of such principal
amount of Bonds, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action
is instituted by the County, or the Company on behalf of the
County, within such period and is being diligently pursued;
or
(d) the occurrence of an "event of default" under
Section 7.1(c) or (d) of the Agreement.
The term "default" as used in clauses (a), (b) and (c)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "event of default" as hereinabove
provided.
SECTION 8.02. Acceleration. Upon the occurrence of an
event of default specified in paragraphs (a), (b) or (d) of
Section 8.01 hereof, the Bonds and any interest accrued thereon,
shall, without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in the same manner as notice of redemption under 3.02
hereof.
If, after the principal of the Bonds has become due and
payable, all arrears of interest and interest on overdue
installments of interest (if lawful) at the rate per annum borne
by the Bonds and the principal and redemption premium, if any, on
all Bonds then outstanding which shall have become due and
payable otherwise than by acceleration and all other sums payable
under this Indenture except the principal of, and interest on,
the Bonds which by such acceleration shall have become due and
payable upon the Bonds, are paid by the County, and the County
pays the reasonable charges of the Trustee, the bondholders and
any trustee appointed under law, including the Trustee's
reasonable attorney's fees, then, and in every such case, the
Trustee shall annul such acceleration and its consequences, and
such annulment shall be binding upon all holders of Bonds issued
hereunder; but no such annulment shall extend to or affect any
subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of such annulment
notice pursuant to this paragraph to the County.
SECTION 8.03. Other Remedies. If any event of default
occurs and is continuing, except as otherwise provided in Section
9.11 hereof, the Trustee may pursue any available remedy by suit
at law or in equity to enforce the payment of the principal of
and redemption premium, if any, and interest on the Bonds then
outstanding hereunder, then due and payable, and enforce each and
every right granted to it under the Agreement and any supplements
or amendments thereto for the benefit of the bondholders. In
exercising such rights and the rights given the Trustee under
this Article VIII, the Trustee shall take such action as, in the
judgment of the Trustee applying the standards described in
Section 9.01(a) hereof, would best serve the interests of the
bondholders.
SECTION 8.04. Legal Proceedings by Trustee. If any event
of default has occurred and is continuing, the Trustee in its
discretion may, and upon the written request of the holders of
twenty-five percent in principal amount of all Bonds then
outstanding and receipt of indemnity to its satisfaction shall,
in its own name as Trustee:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the bondholders,
including the right to require the County to enforce any
rights under the Agreement and to require the County to
carry out any other provisions of this Indenture for the
benefit of the bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the County to
account as if it were the trustee of an express trust for
the bondholders; or
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the bondholders.
No remedy conferred upon or reserved to the Trustee or to
the bondholders by the terms of this Indenture is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given to the Trustee or to the bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing
upon any default or event of default shall impair any such right
or power or shall be construed to be a waiver of any such default
or event of default or acquiescence therein; and every such right
and power may be exercised from time to time as often as may be
deemed expedient.
No waiver of any default or event of default hereunder,
whether by the Trustee or by the bondholders, shall extend to or
shall affect any subsequent default or event of default or shall
impair any rights or remedies consequent thereon.
SECTION 8.05. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds then
outstanding shall have the right, at any time, by an instrument
or instruments in writing executed and delivered to the Trustee,
to direct the method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder, provided, that such
direction shall not be otherwise than in accordance with the
provisions of law or of this Indenture.
SECTION 8.06. Appointment of Receivers. Upon the
occurrence of an event of default, and upon the filing of a suit
or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the bondholders under this
Indenture, the Trustee shall be entitled, as a matter of right,
to the appointment of a receiver or receivers of the trust
estate, with such powers as the court making such appointment
shall confer.
SECTION 8.07. Waiver. Upon the occurrence of an event of
default, to the extent that such rights may then lawfully be
waived, neither the County, nor the State of [Mississippi,] nor
any political subdivision thereof, nor anyone claiming through or
under any of them, shall set up, claim, or seek to take advantage
of any appraisement, valuation, stay, extension or redemption
laws now or hereafter in force, in order to prevent or hinder the
enforcement of this Indenture, but the County, for itself and all
who may claim through or under it, hereby waives, to the extent
that it lawfully may do so, the benefit of all such laws.
SECTION 8.08. Application of Moneys. All moneys received
by the Trustee pursuant to any right given or action taken under
the provisions of this Article VIII shall, after payment of the
costs and expenses of the proceedings resulting in the collection
of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, including but not limited to
payments for and expenses of third party professionals, be
deposited in the Bond Fund and all moneys in the Bond Fund shall
be applied as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
FIRST - To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND - To the payment to the persons entitled
thereto of the unpaid principal of and redemption
premium, if any, on any of the Bonds which shall have
become due (other than Bonds matured or called for
redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), in the
order of their due dates, with interest on such Bonds
from the respective dates upon which they became due
and, if the amount available shall not be sufficient to
pay in full Bonds due on any particular date, together
with such interest, then to the payment ratably,
according to the amount of principal due on such date,
to the persons entitled thereto without any
discrimination or privilege.
THIRD - Payment of interest on and principal of
the Bonds, and to the redemption of Bonds in accordance
with the provisions of Article V.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to
the payment of the principal and interest then due upon the
Bonds, without preference or priority of principal over
interest or of interest over principal, or of any
installment of interest over any other installment of
interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal and
interest, to the persons entitled thereto without any
discrimination or privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if such acceleration shall
thereafter have been rescinded and annulled under the
provisions of this Article VIII then, subject to the
provisions of subsection (b) of this Section 8.08 in the
event that the principal of all the Bonds shall later become
due or be declared due and payable, the moneys shall be
applied in accordance with the provisions of subsection (a)
of this Section 8.08.
Whenever moneys are to be applied pursuant to the provisions
of this Section 8.08, such moneys shall be applied at such times,
and from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest payment
date unless it shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the
amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the
fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all principal of, redemption premium, if any, and
interest on all Bonds have been paid under the provisions of this
Section 8.08 and all expenses and charges of the Trustee have
been paid, any balance remaining in the Bond Fund shall be paid
to the Company as provided in Section 5.11 hereof.
SECTION 8.09. Remedies Vested in the Trustee. All rights
of action (including the right to file proof of claims) under
this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relating thereto;
and any such suit or proceeding instituted by the Trustee shall
be brought in its name as Trustee without the necessity of
joining as plaintiffs or defendants any holders of the Bonds; and
any recovery of judgment shall subject to Section 8.08 of this
Indenture be for the equal and ratable benefit of the holders of
the outstanding Bonds.
SECTION 8.10. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless also a default has occurred of which the Trustee has been
notified as provided in Section 9.01(h) hereof, or of which by
said subsection it is deemed to have notice, nor unless also such
default shall have become an event of default and the holders of
not less than twenty-five percent in aggregate principal amount
of Bonds then outstanding shall have made written request to the
Trustee and shall have offered it reasonable opportunity either
to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in their own name or
names, nor unless also they have offered to the Trustee indemnity
as provided in Section 9.01(l) hereof, nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his or
their action or to enforce any right hereunder except in the
manner herein provided, and that all proceedings at law or in
equity shall be instituted, had and maintained in the manner
herein provided and for the equal and ratable benefit of the
holders of all Bonds then outstanding. Nothing in this Indenture
contained shall, however, affect or impair the right of any
bondholder to enforce the payment of the principal of, redemption
premium, if any, and interest on any Bond at and after the
maturity thereof, or the obligation of the County to pay the
principal of, redemption premium, if any, and interest on each of
the Bonds issued hereunder to the respective holders thereof at
the time, place, from the source and in the manner expressed in
the Bonds.
SECTION 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, or otherwise, and
such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely, then and in
every such case the County and the Trustee shall be restored to
their former positions and rights hereunder; and all rights,
remedies and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
SECTION 8.12. Waivers of Events of Default. The Trustee
may in its discretion waive any event of default hereunder and
its consequences and rescind any acceleration of maturity of
principal, and shall do so upon the written request of the
holders of (a) not less than two-thirds in principal amount of
all the Bonds then outstanding in respect of which default in the
payment of principal and/or interest exists, or (b) more than one-
half in principal amount of all Bonds then outstanding in the
case of any other default; provided, however, that there shall
not be waived (i) any event of default in the payment of the
principal of any outstanding Bonds at the date of maturity
specified therein or (ii) any default in the payment when due of
the interest on any such Bonds unless prior to such waiver or
rescission, all arrears of interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds in respect of
which such default shall have occurred on overdue installments of
interest or all arrears of payments of principal when due, as the
case may be, and all expenses of the Trustee in connection with
such default shall have been paid or provided for, and in cases
of any such waiver or rescission, or in case any proceeding taken
by the Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and in
every such case the County, the Trustee and the bondholders shall
be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to
any subsequent or other default, or impair any right consequent
thereon.
SECTION 8.13. Opportunity of County and Company to Cure
Defaults Under Section 8.01(c); Notice. With regard to any
alleged default concerning which notice is given to the County
and the Company under the provisions of Section 8.01(c), the
County hereby grants the Company full authority for the account
of the County to perform any covenant or obligation alleged in
said notice to constitute a default, in the name and stead of the
County with full power to do any and all things and acts to the
same extent that the County could do and perform any such things
and acts and with power of substitution.
In the event that the Trustee fails to receive any purchase
price installment when due under the Agreement, the Trustee shall
immediately give notice by overnight courier, facsimile
transmission or certified mail to the Company specifying such
failure.
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Trustee, prior to the occurrence of an event
of default and after the curing of all events of default
which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture. In case an event of default has occurred (which
has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be
answerable for the conduct of the same in accordance with
the standard specified above, and shall be entitled to
advice of counsel concerning all matters of trusts hereof
and the duties hereunder, and may in all cases pay such
reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney (who may be the
attorney or attorneys for the County or the Company if
selected or retained prior to the occurrence of a default),
approved by the Trustee in the exercise of reasonable care.
The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in
reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on the Bonds), or for
the recording or re-recording, filing or re-filing of this
Indenture, or any other instrument required by this
Indenture to secure the Bonds, or for insuring the Project
or collecting any insurance moneys, or for the validity of
the execution by the County of this Indenture or of any
supplements hereto or instruments of further assurance, or
for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby, or for the value
or title of the Project or otherwise as to the maintenance
of the security hereof.
(d) The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The
Trustee may become the owner of Bonds secured hereby with
the same rights which it would have if it were not the
Trustee. To the extent permitted by law, the Trustee may
also receive tenders and purchase in good xxxxx Xxxxx from
itself, including any department, affiliate or subsidiary,
with like effect as if it were not the Trustee.
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it
to be genuine and correct and to have been signed or sent by
the proper person or persons. Any action taken by the
Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making
such request or giving such authority or consent is the
owner of any Bond, shall be conclusive and binding upon all
future owners of the same Bond and upon owners of Bonds
issued in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument,
paper or proceeding, the Trustee shall be entitled to rely
upon a certificate signed by the County Representative or
the Company Representative as sufficient evidence of the
facts therein contained; and, prior to the occurrence of a
default of which the Trustee has been notified as provided
in subsection (h) of this Section 9.01, or of which by said
subsection it is deemed to have notice, the Trustee shall
also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is
necessary or expedient, but may at its discretion secure
such further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same. The Trustee
may accept a certificate of the [Clerk of the Board of
Supervisors] of the County under its seal to the effect that
a resolution in the form therein set forth has been adopted
by said County as conclusive evidence that such resolution
has been duly adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty, and it shall not be answerable for other than its
negligence or willful default.
(h) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the County to cause to be made any of the
payments to the Trustee required to be made by Article IV
hereof or the failure of the County or the Company to file
with the Trustee any document required by this Indenture or
the Agreement to be so filed subsequent to the issuance of
the bonds, unless the Trustee shall be specifically notified
in writing of such default by the County or by the holders
of at least twenty-five percent in aggregate principal
amount of Bonds then outstanding; and all notices or other
instruments required by this Indenture to be delivered to
the Trustee, must, in order to be effective, be delivered at
the principal office of the Trustee, and in the absence of
such notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives shall have the right fully
to inspect all books, papers and records of the County
pertaining to the Bonds, and to take such memoranda from and
in regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, which the Trustee in its discretion may deem
desirable for the purpose of establishing the right of the
County to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in this
Indenture, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all
expenses to which it may be put and to protect it against
all liability, except liability which is adjudicated to have
resulted from its negligence or willful default by reason of
any action so taken.
(m) All moneys received by the Trustee or any paying
agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they
were received but need not be segregated from other funds
except to the extent required by law. Neither the Trustee
nor any paying agent shall be under any liability for
interest on any moneys received hereunder except such as may
be mutually agreed upon.
SECTION 9.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement from the
Company for reasonable fees for its services rendered hereunder
and all advances, counsel fees and other expenses reasonably and
necessarily made or incurred by the Trustee in connection with
such services. Upon an event of default, but only upon an event
of default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal of, redemption
premium, if any, and interest on any Bond upon the trust estate
for the foregoing fees, charges and expenses incurred by it
respectively.
SECTION 9.03. Notice to Bondholders if Default Occurs. If
a default occurs of which the Trustee is by Section 9.01(h)
hereof required to take notice or if notice of default be given
as provided in Section 9.01(h), then the Trustee shall promptly
give written notice thereof by certified mail or telecopier
communication to each registered owner of Bonds then outstanding
and to each holder of Bonds then outstanding shown by the list of
bondholders required by the terms of Section 2.05 hereof to be
kept at the office of the Trustee, such notice to be given on the
next business day if Company defaults on an installment payment
under the Agreement.
SECTION 9.04. Intervention by Trustee. In any judicial
proceeding to which the County is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of the owners of the Bonds, the Trustee may
intervene on behalf of bondholders and shall do so if requested
in writing by the owners of at least twenty-five percent of the
aggregate principal amount of Bonds then outstanding. The rights
and obligations of the Trustee under this Section 9.04 are
subject to the approval of a court of competent jurisdiction.
SECTION 9.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association
resulting from any such conversion, sale, merger, consolidation
or transfer to which it is a party, shall be and become successor
Trustee hereunder and vested with all of the title to the trust
estate and all the trusts, powers, discretions, immunities,
privileges and all other matters as was its predecessor, without
the execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 9.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving thirty days' written notice to the County and
by registered or certified mail to each registered owner of Bonds
then outstanding, and such resignation shall take effect at the
end of such thirty days, or upon the earlier appointment of a
successor Trustee pursuant to Section 9.08 hereof. Such notice
to the County may be served personally or sent by registered
mail.
SECTION 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent instruments
in writing delivered to the Trustee and to the County, and signed
by the owners of a majority in aggregate principal amount of
Bonds then outstanding.
SECTION 9.08. Appointment of Successor Trustee by the
Bondholders; Temporary Trustee. In case the Trustee hereunder
shall resign or be removed, or be dissolved, or shall be in
course of dissolution or liquidation, or otherwise become
incapable of acting hereunder, or in case it shall be taken under
the control of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
County at the direction of the Company. The County shall publish
notice of such appointment once in each of two consecutive
calendar weeks in a newspaper or financial journal of general
circulation among dealers in municipal securities in the Borough
of Manhattan, City and State of New York. If the County fails to
make such appointment promptly, a successor may be appointed by
the owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 9.08 shall be a trust
company or bank in good standing having a reported capital and
surplus of not less than $6,000,000, if there be such an
institution willing, qualified and able to accept the trusts upon
reasonable and customary terms.
SECTION 9.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its predecessor and also to the County an
instrument in writing accepting such appointment hereunder, and
thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its
predecessors; but such predecessor shall, nevertheless, on the
written request of the County, or of its successor, execute and
deliver an instrument transferring to such successor Trustee all
the estates, properties, rights, powers and trusts of such
predecessor hereunder; and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee hereunder
to its or his successor. Should any instrument in writing from
the County be required by any successor Trustee for more fully
and certainly vesting in such successor the estate, rights,
powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the County.
The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder,
together with all other instruments provided for in this
Article IX, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have
been filed and/or recorded and the successor Trustee shall bear
the costs thereof.
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent. In the event of a
change of Trustee, the Trustee which has resigned or been removed
shall cease to be Bond Registrar and custodian of the Rebate Fund
and the Bond Fund and paying agent for principal and interest of
the Bonds and the successor Trustee shall become such Bond
Registrar, custodian and paying agent.
SECTION 9.11. Trustee and County Required to Accept
Directions and Actions of Company. Whenever after a reasonable
request by the Company the County shall fail, refuse or neglect
to give any direction to the Trustee or to require the Trustee to
take any action which the County is required to have the Trustee
take pursuant to the provisions of the Agreement or the
Indenture, the Company as agent of the County may give any such
direction to the Trustee or require the Trustee to take any such
action, and the Trustee is hereby irrevocably empowered and
directed to accept such direction from the Company as sufficient
for all purposes of the Indenture. The Company shall have the
right as agent of the County to cause the Trustee to comply with
any of the Trustee's obligations under the Indenture to the same
extent that the County is empowered so to do.
Certain actions or failures to act by the County under the
Indenture may create or result in an event of default under the
Indenture and the Company, as agent of the County, may, to the
extent permitted by law, perform any and all acts or take such
action as may be necessary for and on behalf of the County to
prevent or correct said event of default and the Trustee shall
take or accept such performance by the Company as performance by
the County in such event.
The County hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do all
things and perform all acts provided, and to the extent so
provided, by this Section 9.11.
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The County and the Trustee may with the
prior consent of the Company and with an opinion of Bond Counsel
to the effect that such action will not impair the exclusion of
the interest on the Bonds from gross income for purposes of
federal income taxation, but without the consent of, or notice
to, any of the bondholders, enter into an indenture or indentures
supplemental to this Indenture as shall not be inconsistent with
the terms and provisions hereof for any one or more of the
following purposes:
(a) to cure any ambiguity, defect or omission in this
Indenture, or to otherwise amend this Indenture, in such
manner as shall not in the opinion of the Trustee impair the
security hereof or adversely affect the bondholders;
(b) to grant to or confer upon the Trustee for the
benefit of the bondholders any additional rights, remedies,
powers or authorities that may lawfully be granted to or
conferred upon the bondholders or the Trustee;
(c) to add additional covenants of the County, or to
surrender any right or power herein conferred upon the
County;
(d) to subject to this Indenture additional revenues,
properties or collateral; and
(e) to modify, amend or supplement this Indenture or
any indenture supplemental hereto in such manner as to
permit the qualification hereof and thereof under the Trust
Indenture Act of 1939 or any similar federal statute
hereafter in effect or to permit the qualification of the
Bonds for sale under the securities laws of any of the
states of the United States, and, if they so determine, to
add to this Indenture or any indenture supplemental hereto
such other terms, conditions and provisions as may be
permitted by said Trust Indenture Act of 1939 or similar
federal statute.
SECTION 10.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by
Section 10.01 hereof and subject to the terms and provisions
contained in this Section 10.02, and not otherwise, the holders
of not less than a majority in aggregate principal amount of the
Bonds then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such other indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the Trustee for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any indenture
supplemental hereto; provided, however, that nothing in this
Section 10.02 contained shall permit, or be construed as
permitting (i) an extension of the maturity date of the principal
of or the interest on any Bond issued hereunder, (ii) a reduction
in the principal amount of, or redemption premium on, any Bond or
Bonds or the rate or rates of interest thereon, or (iii) a
reduction in the aggregate principal amount of the Bonds required
for consent to such supplemental indenture.
If at any time the County shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section 10.02, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to be published
as shall be requested by the County and in any event one time in
a newspaper or financial journal of general circulation among
dealers in municipal securities in the Borough of Manhattan, City
and State of New York. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal office of the
Trustee for inspection by all bondholders. If, within sixty days
or such longer period as shall be prescribed by the County
following the final publication of such notice, the holders of
not less than a majority in aggregate principal amount of the
Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained herein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the County from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture as in this
Section 10.02 permitted and provided, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and
without the necessity for notation on the outstanding bonds.
If, because of the temporary or permanent suspension of the
publication or general circulation of any newspaper or for any
other reason, it is impossible or impractical to publish any
notice required in this Section 10.02, then such publication in
lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of notice.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article X which affects the
rights of the Company shall not become effective unless and until
the Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen days prior to the
publication of notice of the proposed execution of such
supplemental indenture as provided in this Section 10.02. The
Company shall be deemed to have consented to the execution and
delivery of any such supplemental indenture if the Trustee
receives a letter or other instrument signed by an authorized
officer of the Company expressing consent.
SECTION 10.03. Trustee Authorized to Join in Supplements;
Reliance on Counsel. The Trustee is authorized to join with the
County in the execution and delivery of any supplemental
indenture permitted by this Article X and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such supplemental indenture is so
permitted and has been duly authorized by the County and that all
things necessary to make it a valid and binding supplemental
indenture have been done.
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, etc., to Agreement Not Requiring
Consent of Bondholders. The County and the Trustee shall,
without the consent of or notice to the bondholders, consent to
any amendment, change or modification of the Agreement as may be
(i) required by the provisions of the Agreement or this
Indenture, (ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) in connection with the Project so as to
more precisely identify the same or substitute or add additional
facilities acquired in accordance with the provisions of the
Agreement, or (iv) in connection with any other change therein
which, in the judgment of the Trustee, is not to the prejudice of
the Trustee or the holders of the Bonds; provided, however, that
as a condition of such consent, there may be required an opinion
of Bond Counsel to that effect and to the effect that such action
does not adversely effect the exclusion of interest from gross
income for purposes of federal income taxation.
SECTION 11.02. Amendments, etc., to Agreement Requiring
Consent of Bondholders. Except for the amendments, changes or
modifications as provided in Section 11.01 hereof, neither the
County nor the Trustee shall consent to any other amendment,
change or modification of the Agreement without publication of
notice and the written approval or consent of the holders of not
less than a majority in aggregate principal amount of the Bonds
at the time outstanding given and procured as in this Section
11.02 provided. If at any time the County and the Company shall
request the consent of the Trustee to any such proposed
amendment, change or modification of the Agreement, the Trustee
shall, upon being satisfactorily indemnified with respect to
expenses, cause notice of such proposed amendment, change or
modification to be published in the same manner as provided by
Section 10.02 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file with the Trustee
for inspection by all bondholders.
SECTION 11.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to
join with the County in the execution and delivery of any
amendment permitted by this Article XI and in so doing shall be
fully protected by an opinion of counsel who may be counsel for
the County or the Company that such amendment is so permitted and
has been duly authorized by the County and that all things
necessary to make it a valid and binding agreement have been
done.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and executed
by the bondholders may be in any number of concurrent writings of
similar tenor and may be signed or executed by such bondholders
in person or by agent appointed in writing. Proof of the
execution of any such consent, request, direction, approval,
objection or other instrument or of the writing appointing any
such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the purposes of
this Indenture, and shall be conclusive in favor of the Trustee
with regard to any action taken by it under such request or other
instrument, namely the fact and date of the execution by any
person of any such writing may be proved by the certificate of
any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing
such writing acknowledged before him the execution thereof, or by
an affidavit of any witness to such execution. For all purposes
of this Indenture and of the proceedings for the enforcement
hereof, such person shall be deemed to continue to be the holder
of such Bond until the Trustee shall have received notice in
writing to the contrary.
SECTION 12.02. Limitation of Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds, is
intended or shall be construed to give to any person or company
other than the Company, the parties hereto, and the holders of
the Bonds, any legal or equitable right, remedy or claim under or
in respect of this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof are intended to be
and are for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein provided.
SECTION 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative, or unenforceable to any extent
whatever.
SECTION 12.04. Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered
or certified mail, postage prepaid, or sent by telegram,
addressed as follows: If to the County, at _________, _________
_____; if to the Trustee, at ________________, ________,
___________ _____, Attention: Corporate Trust Administration
Department; and if to the Company at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Treasurer. A duplicate
copy of each notice required to be given hereunder by either the
County or the Trustee shall also be given to the Company, and a
duplicate copy of each notice required to be given hereunder by
the Trustee to either the County or the Company shall also be
given to the other. The County, the Company and the Trustee may,
by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 12.05. Trustee as Paying Agent and Bond Registrar.
The Trustee is hereby designated and agrees to act as paying
agent and as Bond Registrar for and in respect to the Bonds.
SECTION 12.06. Payments Due on Sundays and Holidays. In
any case where the date of maturity of interest on or principal
of Bonds or the date fixed for redemption of any Bonds shall be
in the city of payment a Sunday or a legal holiday or a day on
which banking institutions are authorized by law to close, then
payment of interest or principal (and redemption premium, if any)
need not be made on such date but may be made on the next
succeeding business day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no
interest on such payment shall accrue for the period after such
date.
SECTION 12.07. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 12.08. Applicable Provisions of Law. This
Indenture shall be governed by and construed in accordance with
the laws of the State of [Mississippi.]
SECTION 12.09. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of
this Indenture.
SECTION 12.10. No Liability of County. No breach or
violation of any covenant, agreement or undertaking contained in
this Indenture shall impose any pecuniary liability upon the
County or any charge upon its general credit or against its
taxing powers, but the County shall nonetheless be obligated with
respect to, and liable to the extent of, revenues and receipts
specifically pledged herein.
IN WITNESS WHEREOF, [GOVERNMENTAL AUTHORITY], has caused
this Indenture to be executed by the [President of its Board of
Supervisors,] and its seal to be hereunto affixed, attested by
the [Clerk of said Board,] and __________________, as Trustee,
has caused this Indenture to be executed and its corporate seal
to be hereunto affixed and attested, all by its duly authorized
officers, all as of the date first above written.
[GOVERNMENTAL AUTHORITY]
By:
__________________________
Attest:
_____________________________
________________________________,
TRUSTEE
By:
Attest:
_____________________________
STATE OF ______________
COUNTY OF _____________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _____,
____, within my jurisdiction, the within named ________________
and __________________, duly identified before me, who
acknowledged that they are _______ and _______, respectively, of
the [Board of Supervisors] of [Governmental Authority], a County,
and that for and on behalf of said County, and as its act and
deed, they executed and sealed the above and foregoing
instrument, after first having been duly authorized by said
County so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
STATE OF ____________________ SS.:
COUNTY OF ___________________
Personally appeared before me, the undersigned authority in
and for the said county and state, on this ____ day of _____,
____, within my jurisdiction, the within named
____________________________ and _____________________________,
duly identified before me, who acknowledged that they are
____________________________ and _____________________________,
respectively, of _______________________, and that for and on
behalf of said corporation, and as its act and deed, they
executed the above and foregoing instrument, after first having
been duly authorized by said corporation so to do.
NOTARY PUBLIC
My Commission Expires:
______________________
(Affix Official Seal)
