Exhibit B-6
[GOVERNMENTAL AUTHORITY]
AND
MISSISSIPPI POWER & LIGHT COMPANY
__________________
[FACILITY] AGREEMENT
__________________
Dated as of ________ __, ____
__________________
_____________________ Bonds, ____ Series
(Mississippi Power & Light Company Project)
[FACILITY] AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this [Facility Agreement.)
Page
PARTIES 1
PREAMBLES 1
ARTICLE I
DEFINITIONS 2
ARTICLE II
Representations
SECTION 2.1. Representations by the County 4
SECTION 2.2. Representations by the Company 5
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; [Redemption of Prior Bonds]
SECTION 3.1. Construction and Equipping of the
Project 6
SECTION 3.2. Agreement to Issue Bonds;
Application of Bond Proceeds 6
[SECTION 3.3. Agreement to Redeem Prior Bonds] 6
SECTION 3.4. Disbursement of [Proceeds of Prior Bonds] 7
SECTION 3.5. Special Arbitrage Covenants 7
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement 7
SECTION 4.2. Sale of the Project Confirmed 7
SECTION 4.3. Use of the Project 8
SECTION 4.4. Purchase Price and Other Amounts
Payable 8
SECTION 4.5. Payments Assigned 9
SECTION 4.6. Indemnity Against Claims 9
SECTION 4.7. Maintenance of Project by Company 10
SECTION 4.8. Insurance Required 10
SECTION 4.9. Obligation of the Company Unconditional 10
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability
by the County 11
SECTION 5.2. Inspection of Books 11
SECTION 5.3. Company to Maintain its Corporate
Existence; Conditions Under Which
Exceptions Permitted 11
SECTION 5.4. Further Assurances and Corrective
Instruments 12
SECTION 5.5. County Representative 12
SECTION 5.6. Company Representative 12
SECTION 5.7. County's and Trustee's Access
to Project 12
SECTION 5.8. Non-Arbitrage Covenant 13
SECTION 5.9. Tax Exempt Status of Bonds 13
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease 13
SECTION 6.2. Redemption of Bonds 14
SECTION 6.3. Assignment and Pledge of Rights under the
Agreement 14
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined 14
SECTION 7.2. Remedies on Default 16
SECTION 7.3. No Remedy Exclusive 16
SECTION 7.4. Agreement to Pay Attorneys' Fees and
Expenses 17
SECTION 7.5. No Additional Waiver Implied by One
Waiver 17
SECTION 7.6. Remedial Rights Assigned to Trustee 17
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options 17
SECTION 8.2. Notice of Prepayment 19
SECTION 8.3. Relative Position of this Article and
Indenture 19
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices 19
SECTION 9.2. Binding Effect 20
SECTION 9.3. Severability 20
SECTION 9.4. Amounts Remaining in the Bond Fund 20
SECTION 9.5. Amendments, Changes and Modifications 20
SECTION 9.6. Execution in Counterparts 20
SECTION 9.7. Recording and Filing 20
SECTION 9.8. Applicable Law 21
SECTION 9.9. No Charge Against County's Credit 21
SECTION 9.10. Captions 21
Signatures and Seals 22
Exhibit A
Acknowledgments
THIS [FACILITY] AGREEMENT (hereinafter called the
"Agreement") made and entered into as of ______ __, ____, by and
between [Governmental Authority], a public body corporate and
politic and a political subdivision of the State of [Mississippi]
(the "County"), and Mississippi Power & Light Company (the
"Company"), a corporation organized and existing under the Laws
of the State of Mississippi.
WITNESSETH:
WHEREAS, the County is authorized and empowered by the
constitution and the laws of the State of [Mississippi,
especially Sections ▇▇-▇▇-▇▇▇ through ▇▇-▇▇-▇▇▇, 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, the Company is an industry as defined in the
[Pollution Control Act;] 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 the Company, located at
__________________, [Mississippi,] within __________________,
[Mississippi;] [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; and]
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"),] and a resolution duly and
validly adopted by the County on _____ ____, ____ (the "Issuing
Resolution"), 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
available therefor to be provided 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 proposes to confirm and continue the
installment sale of the Project to the Company pursuant to the
terms and conditions of this [Facility] Agreement, which fully
amends and restates the Prior Agreement, and the County proposes
to refund the Prior Bonds pursuant to the terms and conditions
set forth in this Agreement by the issuance of the Bonds; and]
WHEREAS, the Issuer has received all authorizations,
approvals and consents required to be obtained prior to the
issuance of the Bonds; and
WHEREAS, the Company has received all authorizations,
approvals and consents required to be obtained prior to its entry
into this Agreement; and
[WHEREAS, the County and the Company desire to amend and
restate the Prior Agreement in its entirety and each of its
provisions by the [Facility] Agreement;]
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
ARTICLE I
Definitions
["Act" means Sections 31-15-21 through 31-15-27, Mississippi
Code of 1972, as amended.]
"Agreement" means this [Facility] Agreement and any
amendments and supplements thereto.
"Bonds" means the bonds of the County issued pursuant to
Section 2.02 of the Indenture.
"Bond Fund" means the fund created in Section 5.02 of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended,
including the regulations promulgated thereunder.
"Company" means Mississippi Power & Light Company, a
Mississippi corporation, and its successors and assigns and any
surviving, resulting or transferee corporation as provided in
Section 5.3 hereof.
"Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate
furnished to the County and the Trustee containing the specimen
signature of such person and signed on behalf of the Company by
the President or any Vice President of the Company. Such
certificate may designate an alternate or alternates. The
Company Representative may be an employee of the Company.
"Company's Tax Certificate and Covenants" means the
Company's Tax Certificate and Covenants and the Certificate of
Company Official With Respect To Projects Financed With The
[Prior Bonds] And Certain Other Matters, which is made an exhibit
thereto.
"County" means _______________, _____, a political
subdivision of the State of _______.
"County Representative" means the person at the time
designated to act in behalf of the County by written certificate
furnished to the Company and the Trustee containing the specimen
signature of such person and signed on behalf of the County by
the [President or Clerk of the Board of Supervisors] of the
County. Such certificate may designate an alternate or
alternates. The County Representative may be an employee of the
County.
"First Mortgage" means the Mortgage and Deed of Trust dated
as of September 1, 1944, as heretofore and hereafter supplemented
and amended, between the Company and Irving Trust Company (Bank
of New York, Successor) and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇. ▇.
▇▇▇▇▇▇▇▇▇▇, successor), as trustees, securing first mortgage
bonds of the Company heretofore or which may hereafter be issued
thereunder.
"G&R Mortgage" means the Mortgage and Deed of Trust, dated
as of February 1, 1988, as heretofore and hereafter supplemented
and amended, between the Company and Bank of Montreal Trust
Company and Z. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, successor),
as trustees, securing general and refunding mortgage bonds of the
Company heretofore or which may hereafter be issued thereunder.
"Government Obligations" means (a) direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged, or (b)
obligations issued by a person controlled or supervised by and
acting as an instrumentality of the United States of America, the
payment of the principal of, premium, if any, and interest on
which is fully and unconditionally guaranteed as a full faith and
credit obligation by the United States of America.
"Indenture" means the Trust Indenture dated as of _______
__, ____, between the County and __________________, as Trustee,
pursuant to which the Bonds are authorized to be issued and the
interest of the County in this Agreement and in the revenues and
receipts received by the County in respect of the Project as in
this Agreement provided are to be pledged and assigned, and any
indenture supplemental thereto.
"Permitted Encumbrances" means, as of any particular time,
(i) liens for taxes not then delinquent, (ii) this Agreement and
the Indenture, (iii) utility, access and other easements and
rights of way, restrictions and exceptions that the Company
Representative certifies will not interfere with the operation of
or impair the value of the Project, (iv) any mechanic's,
laborer's, materialman's, supplier's or vendor's lien or right in
respect thereof if payment is not yet due and payable, (v) such
minor defects, irregularities, encumbrances, easements, rights of
way, and clouds on title as normally exist with respect to
property similar in character to the Project and as do not, in
the opinion of counsel for the Company, materially impair the
property affected thereby for the purpose for which it was
acquired or is held by the County and (vi) the lien of the First
Mortgage and of the G&R Mortgage and excepted encumbrances as
therein defined.
"Plant" means the Company's ________________________ located
in the County.
["Pollution Control Act" means Sections ▇▇-▇▇-▇▇▇ through 49-
17-123, Mississippi Code of 1972, as amended.]
"Project" means the [air and water pollution control]
facilities described in Exhibit A, as amended or revised, and the
Improvements thereto as permitted and installed pursuant to [the
Prior Agreement or] this Agreement.
"Trustee" means the trustee at the time serving as such
under the Indenture.
ARTICLE II
Representations
SECTION 2.1. Representations by the County. The County
represents and warrants that:
(a) The County is a political subdivision of the
State of ___________. Under the provisions of the
[Pollution Control Act,] the County has the power to enter
into the transactions contemplated by this Agreement and to
carry out its obligations hereunder. The County is duly
authorized to execute and deliver this Agreement. The
County agrees that it will do or cause to be done all things
necessary to preserve and keep in full force and effect its
existence.
(b) [The County through issuance of the Prior
Bonds provided funds for the acquiring, constructing,
installing and equipping of the Project, and has sold the
Project to the Company, which sale is hereby confirmed.]
(c) The County will, upon the request and at the
expense of the Company, cause the execution and delivery
from time to time to the Company of such further instruments
of conveyance as the Company deems to be necessary to effect
or evidence the conveyance to the Company of good and
marketable title to the Project, or any portion thereof,
subject only to Permitted Encumbrances.
(d) The County has authorized the issuance of not
exceeding $_______________ aggregate principal amount of its
Bonds on the terms set forth in the Indenture for the
purpose of providing funds which, together with other funds
available therefor to be provided by the Company, will be
sufficient to [refund the Prior Bonds.]
(e) The County has not assigned, and will not,
except as otherwise required by mandatory provisions of law,
assign its interest in this Agreement other than to secure
the Bonds.
SECTION 2.2. Representations by the Company. The
Company represents and warrants that:
(a) The Company is a corporation duly
incorporated and in good standing under the laws of the
State of Mississippi, has power to enter into, and to
perform and observe the agreements and covenants on its part
contained in, this Agreement and by proper corporate action
has duly authorized the execution and delivery of this
Agreement.
(b) Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement will conflict with or
constitute a breach of or default under the Company's
corporate charter or any agreement or instrument to which
the Company is a party or by which it is bound.
([c) The Air and Water Pollution Control
Commission of the State of Mississippi on _______, __, ____,
found and certified that the Project is necessary and that
the design thereof will result in the elimination,
mitigation and/or prevention of air and water pollution.]
(d) The statements of fact and representations
made by the Company in the Company's Tax Certificate and
Covenants in connection with the determination of the tax-
exempt status of the interest on the Bonds are true and
correct in all material respects.
(e) The Securities and Exchange Commission has
approved all matters relating to the Company's participation
in the transactions contemplated by this Agreement which
require said approval, and no consent, approval,
authorization or other order of any regulatory body or
administrative agency or other governmental body is legally
required for the Company's participation therein, except
such as may have been obtained or may be required under the
securities laws of any state.
(f) The Company has good and marketable title to
the Project, free and clear of all claims, liens and
encumbrances other than Permitted Encumbrances.
ARTICLE III
Construction and Equipping of the Project;
Issuance of Bonds; [Redemption of Prior Bonds]
SECTION 3.1 Construction and Equipping of the Project.
[The County and the Company agree that the Project has been
acquired, constructed, installed and equipped.]
SECTION 3.2. Agreement to Issue Bonds; Application of Bond
Proceeds. In order to provide funds for the payment of the cost
of [refunding the $_______ principal amount of Prior Bonds
presently outstanding,] the County will issue and sell the Bonds
as and when requested by the Company, and shall deliver the
proceeds thereof as follows:
(a) 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
[(b) To the trustee for the Prior Bonds, the balance of
such proceeds.]
[SECTION 3.3. Agreement to Redeem Prior Bonds. The Company
agrees to pay to the trustee for the Prior Bonds, in funds
available to the Trustee on ______ __, ____, the day immediately
preceding the redemption date of the Prior Bonds, for deposit
into the bond fund created under the Prior Indenture securing the
Prior Bonds and in accordance with the terms of the Prior
Indenture, any amount necessary to pay the principal of,
redemption premium and accrued interest due on the Prior Bonds,
to the extent that the amount delivered by the County pursuant to
Section 3.2(b) hereof is insufficient for such purpose. Unless
and until the deposit required by the preceding sentence of this
Section 3.3 shall have been timely made, all covenants, terms,
conditions and representations of the Company contained in the
Prior Agreement, including but not limited to Sections 4.4 and
4.7, shall remain in full force and effect as against the
Company, notwithstanding the entering into of this Agreement.]
[SECTION 3.4. Disbursement of Proceeds of Prior Bonds. The
Company represents and certifies that all proceeds of the Prior
Bonds have been disbursed as provided in the Prior Agreement.]
SECTION 3.5. Special Arbitrage Covenants. The Company
further covenants and represents to and for the benefit of the
purchasers of the Bonds that, on the basis of the facts,
estimates and circumstances now known and reasonably expected to
be in existence on the date or dates of issue of the Bonds, no
use will be made of the proceeds from the issue and sale of the
Bonds which would cause the Bonds to be classified as of the date
or dates of their issue as arbitrage bonds within the meaning of
Section 148 of the Code. The Company further covenants and
agrees to pay timely on behalf of the County Rebatable Arbitrage
(as defined in the Company's Tax Certificate and Covenants dated
and delivered on the date of issuance of the Bonds) to the United
States Government in accordance with the provisions of the Tax
Certificate in order to maintain continuous compliance with
Section 148 of the Code.
ARTICLE IV
Term of Agreement; Sale of the Project;
Provisions for Payment
SECTION 4.1. Term of Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the Bonds shall have been fully paid or provision
made for such payment.
SECTION 4.2. Sale of the Project Confirmed. In further
consideration of the Company's agreement to pay the purchase
price, payable in installments as set forth in this Agreement,
the County has conveyed and vested in the Company all of the
right, title and interest of the County in the Project.
SECTION 4.3. Use of the Project. The County hereby
covenants and agrees that it will not take any action, other than
pursuant to the exercise of its rights under Section 7.2 of this
Agreement, to prevent the Company from having possession and
enjoyment of the Project during the term of this Agreement and
will, at the request of the Company, and at the Company's cost,
cooperate with the Company in order that the Company may have
possession and enjoyment of the Project.
SECTION 4.4. Purchase Price and Other Amounts Payable.
During the term of this Agreement, the Company will pay to the
Trustee (in funds which will be immediately available funds on
the day when payment is due) for deposit into the Bond Fund as
the purchase price for the Project an amount equal to the
aggregate principal amount of the Bonds, and as interest on the
purchase price of the Project an amount equal to the interest and
premium (if any) on the Bonds, all of which shall be payable at
the times and in the amounts as follows: on the day when payment
thereof is due, commencing with the first interest payment date
on the Bonds and continuing thereafter until the principal of,
premium (if any) and interest on the Bonds shall have been fully
paid (or provision for the payment thereof shall have been made
in accordance with the Indenture), the Company shall pay amounts
as interest on, or as interest on and principal of, the purchase
price of the Project, as the case may be, which will be equal to
the amounts payable on such date, respectively, as interest on,
or as interest on premium (if any) and principal of, the Bonds,
as the case may be whether at the stated maturity or by mandatory
redemption thereof as provided in the Indenture, or on any other
date when the principal shall become, or be required to become,
due; provided, however, that no partial prepayment of the
purchase price of the Project and interest thereon pursuant to
Section 8.1 hereof shall limit the Company's obligation to pay
the amount of purchase price and interest thereon which, together
with such prepayment, shall equal the principal of, premium (if
any) and interest on the outstanding Bonds. In the event there
are available moneys in the Bond Fund on any payment date, such
moneys shall be credited against the purchase price or interest
payment then due, first in respect of interest on the purchase
price and then to the extent of remaining moneys, in respect of
principal of the purchase price.
The Company shall not be obligated to make any further
purchase price payments under this Section and the Company's
obligation to make purchase payments under this Section 4.4 shall
be deemed satisfied at any time that the entire principal,
premium (if any) and interest on the Bonds shall have been fully
paid in accordance with their terms, or any time that there shall
be in the Bond Fund an amount sufficient to pay, retire and
redeem all outstanding Bonds in accordance with the provisions of
the Indenture (including, without limiting the generality of the
foregoing, principal, interest to maturity or earliest applicable
redemption date, as the case may be, redemption premiums (if
any), expenses of redemption and Trustee's and paying agents'
fees).
The Company will also pay when due and payable (i) all
reasonable fees, expenses and charges of the Trustee and The
Depository Trust Company, (ii) all reasonable and necessary
expenses incurred by the County with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or Indenture, and (iii) any expenses in connection with
any registration or redemption of the Bonds.
SECTION 4.5. Payments Assigned. It is agreed that all
payments to be made by the Company pursuant to Section 4.4 of
this Agreement and all rights and interest of the County under
this Agreement (except for the County's rights under the last
paragraph of Section 4.4 and under Sections 4.6 and 7.4 hereof
and any rights of the County to receive notices, certificates,
requests, directions and other communications hereunder), are
assigned to the Trustee. The Company assents to such assignment
and hereby agrees that its obligation to make such payments shall
be absolute, irrevocable and unconditional and shall not be
subject to cancellation, termination or abatement, or to any
defense or any right of set-off, counterclaim or recoupment
arising out of any breach under this Agreement, the Indenture or
otherwise by the County or the Trustee or any other party, or out
of any indebtedness or liability at any time owing to the Company
by the County. The Company hereby agrees to pay to the Trustee
all of said payments payable by the Company pursuant to Section
4.4 of this Agreement at the times and in the amounts specified
herein, whether or not the Plant or the Project, or any portion
thereof, shall have been completed or shall have been destroyed
by fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain, and that there shall be no abatement of or diminution in
any such payments by reason thereof, whether or not the Plant or
the Project shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Plant or the Project, or for any other
reason.
SECTION 4.6. Indemnity Against Claims. The Company will
indemnify the County and the Trustee against claims arising out
of ownership and operation of the Project. The Company will also
pay and discharge and will indemnify and hold harmless the County
from any lien or charge upon payments by the Company to the
County hereunder. If any such claim is asserted, or any such
lien or charge upon payments, or any such taxes, assessments,
impositions or other charges, are sought to be imposed, the
County or the Trustee, as the case may be, will give prompt
notice to the Company, and the Company shall have the sole right
and duty to assume, and will assume, the defense thereof, with
full power to litigate, compromise or settle the same in its sole
discretion.
SECTION 4.7. Maintenance of Project by Company. The
Company agrees that at all times during the term of this
Agreement it will, so long as the Plant remains in operation,
maintain, preserve and keep the Project or cause the Project to
be maintained, preserved and kept with the appurtenances and
every part and parcel thereof, in good repair, working order and
condition and that it will from time to time make or cause to be
made all necessary and proper repairs, replacements and renewals;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project. In any instance where the Company determines that any
portion of the Project has become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, the Company may remove
such portion of the Project and sell, trade-in, exchange or
otherwise dispose of such removed portion without any
responsibility or accountability to the County, Trustee or the
Bondholders thereof.
SECTION 4.8. Insurance Required. The Company agrees to
insure the Project in such amounts and in such manner as its
similar properties are usually insured against loss or damage of
the kinds usually insured against by it, and to carry liability
insurance with respect to the Project in such amounts and in such
manner as are carried by it with respect to similar properties.
SECTION 4.9. Obligation of the Company Unconditional. The
obligation of the Company to make the payments pursuant to this
Agreement and to perform and observe the other agreements on its
part contained herein shall be absolute, irrevocable and
unconditional, and the Company's obligation to make payments
pursuant to Section 4.4 of this Agreement shall be further
subject to the provisions of Section 4.5 of this Agreement. Until
such time as the principal of, premium, if any, and interest on
the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture,
the Company (i) will not suspend or discontinue any payments
pursuant to this Agreement, (ii) will perform and observe all its
other agreements contained in this Agreement and (iii) except as
provided in Article VIII, will not terminate this Agreement for
any cause including, without limiting the generality of the
foregoing, loss of title to (or the temporary use of) the Project
by virtue of the exercise by others of the power of eminent
domain, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Project,
commercial frustration of purpose, any change in the tax or other
laws of the United States of America or of the State of
[Mississippi] or any political subdivision of either thereof or
any failure of the County to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement. Nothing
contained in this Section 4.7 shall be construed to release the
County from the performance of any of the agreements on its part
herein contained; and, in the event the County shall fail to
perform any such agreement on its part, the Company may institute
such action against the County as the Company may deem necessary
to compel performance or recover its damages for nonperformance
so long as such action shall not violate the agreements on the
part of the Company contained in the preceding sentence, and in
no event shall the Company be entitled to any diminution of the
amounts payable under Section 4.4 hereof. The Company may,
however, at its own cost and expense and in its own name or in
the name of the County, prosecute or defend any action or
proceeding or take any other action involving third persons which
the Company deems reasonably necessary in order to insure, secure
or protect its right of possession, occupancy and use of the
Project, and in such event the County hereby agrees to cooperate
fully with the Company and to take all action necessary to effect
the substitution of the Company for the County in any such action
or proceeding if the Company shall so request.
ARTICLE V
Special Covenants
SECTION 5.1. No Warranty of Condition or Suitability by the
County. The County makes no warranty, either express or implied,
as to the Project or that it will be suitable for the Company's
purposes or needs.
SECTION 5.2. Inspection of Books. The County and the
Trustee shall be permitted, at all reasonable times, to examine
the books and records of the Company with respect to the Bonds.
SECTION 5.3. Company to Maintain its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees
that during the term of this Agreement it will maintain its
corporate existence and qualification to do business in the State
of Mississippi [and Arkansas], will not dissolve or otherwise
dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one
or more other corporations to consolidate with or merge into it;
provided, that the Company may, without violating the agreements
contained in this Section 5.3, consolidate with or merge into
another domestic corporation (i.e., a corporation incorporated
and existing under the laws of one of the States of the United
States of America or under the laws of the United States of
America) or permit one or more other corporations to consolidate
with or merge into it, or sell or otherwise transfer to another
domestic corporation all or substantially all of its assets as an
entirety and thereafter dissolve; provided, in the event the
Company is not the surviving, resulting or transferee
corporation, as the case may be, that the surviving, resulting or
transferee corporation assumes, accepts and agrees in writing to
pay and perform all of the obligations of the Company herein and
is a Mississippi corporation or is qualified to do business in
the State of Mississippi [and Arkansas] as a foreign corporation
or appoints an agent for service of process in the State of
Mississippi [and Arkansas].
SECTION 5.4. Further Assurances and Corrective Instruments.
The County and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of
this Agreement.
SECTION 5.5. County Representative. Whenever under the
provisions of this Agreement the approval of the County is
required or the County is required to take some action at the
request of the Company, such approval shall be made or such
action shall be taken by the County Representative to the extent
permitted by law; and the Company and the Trustee shall be
authorized to act on any such approval or action and the County
shall have no complaint against the Company or the Trustee as a
result of any such action taken.
SECTION 5.6. Company Representative. Whenever under the
provisions of this Agreement the approval of the Company is
required or the Company is required to take some action at the
request of the County, such approval or such request shall be
made by the Company Representative; and the County or the Trustee
shall be authorized to act on any such approval or request and
the Company shall have no complaint against the County or the
Trustee as a result of any such action taken.
SECTION 5.7. County's and Trustee's Access to Project. The
County and the Trustee shall have the right, upon appropriate
prior notice to the Company, to have reasonable access to the
Project during normal business hours for the purpose of making
examinations and inspections of the same; provided, however, that
the foregoing shall not require the Company to permit inspection
of any properties or records to an extent which would require the
Company to reveal any of its proprietary information or trade
secrets.
SECTION 5.8. Non-Arbitrage Covenant. The Company and the
County covenant that they shall take no action, nor shall the
Company direct or approve the Trustee's taking any action or
making any investment or use of the proceeds of the Bonds, which
would cause the Bonds to be "arbitrage bonds" within the meaning
of Section 148 of the Code, including any proposed or final
regulations thereunder that may be applicable to the Bonds at the
time of such action, investment or use.
SECTION 5.9. Tax Exempt Status of Bonds. The Company
covenants and agrees that it shall not take or authorize or
permit any action to be taken, and has not taken or authorized or
permitted any action to be taken, which adversely affects the
exclusion of interest on the Bonds from gross income for purposes
of federal income taxes pursuant to Section 103 of the Code.
Without limiting the generality of the foregoing, the Company
further covenants and agrees as follows:
(a) No changes have been or will be made in the
Project which in any way adversely affect the exclusion of
interest on any of the Bonds from gross income for purposes
of federal income taxation pursuant to Section 103 of the
Code;
(b) No action shall be taken that will cause the Bonds
to be "federally guaranteed" as defined in Section 149(b) of
the Code; and
(c) No portion of the proceeds of the Bonds in excess
of 2% of the proceeds thereof (within the meaning of Section
147(g) of the Code) will be used to finance costs of
issuance of the Bonds.
ARTICLE VI
Assignment, Indemnification, Leasing and
Selling; Redemption
SECTION 6.1. Assignment and Lease. This Agreement may be
assigned, and the Project may be sold or leased as a whole or in
part, by the Company without the necessity of obtaining the
consent of either the County or the Trustee, subject, however, to
the condition that no assignment, sale or leasing (other than
pursuant to Section 5.3 hereof) shall relieve the Company from
primary liability for any of its obligations hereunder, and in
the event of any such assignment, sale or leasing, the Company
shall continue to remain primarily liable for payments of the
amounts specified in Section 4.4 to the same extent as though no
assignment or lease had been made. Furthermore, any assignee of
the Company's interest in this Agreement shall assume the
obligations of the Company hereunder to the extent of the
interest assigned, and the Company shall, promptly upon the
making of any assignment, furnish or cause to be furnished to the
County and to the Trustee a true and complete copy of each such
assignment and assumption of obligations.
SECTION 6.2. Redemption of Bonds. Upon the Company's
deposit of moneys in the Bond Fund in an amount sufficient to
redeem Bonds then subject to redemption, the County, at the
request of the Company, shall forthwith take all steps necessary
under the applicable redemption provisions of the Indenture to
effect redemption of all or part of the then outstanding Bonds,
as may be specified by the Company, on the redemption date
specified by the Company; provided that, the date of any such
redemption shall not be less than forty-five (45) days from the
date each such redemption request is given, unless the County
shall agree to a shorter period.
SECTION 6.3. Assignment and Pledge of Rights Under the
Agreement. The County shall assign its rights under this
Agreement and shall pledge any moneys receivable under this
Agreement to the Trustee as security for payment of the principal
of, premium, if any, and interest on the Bonds.
ARTICLE VII
Events of Default and Remedies
SECTION 7.1. Events of Default Defined. The following
shall be "events of default" under this Agreement and the terms
"event of default" or "default" shall mean, whenever they are
used in this Agreement, any one or more of the following events:
(a) Failure by the Company to pay when due the
amounts required to be paid pursuant to the first paragraph
of Section 4.4 of this Agreement, which failure shall have
resulted in an "event of default" under Section 8.01(a) or
(b) of the Indenture.
(b) Failure by the Company to pay when due any
other amount required to be paid under this Agreement or to
observe and perform any other covenant, condition or
agreement on its part to be observed or performed, other
than as referred to in subsection (a) of this Section 7.1,
for a period of ninety (90) days after written notice,
specifying such failure and requesting that it be remedied,
is given to the Company by the County or the Trustee, unless
the County and the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the County and the
Trustee will not unreasonably withhold their consent to an
extension of such time if corrective action is instituted by
the Company within the applicable period and is being
diligently pursued.
(c) The expiration of a period of sixty (60) days
following the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the
Company under the United States Bankruptcy Code or any other
applicable Federal or State law of a similar nature, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of or for
the Company or any substantial part of its property, or
ordering the winding up or liquidation of its affairs unless
during such period such decree, order or appointment of a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official shall be vacated or
shall be stayed on appeal or otherwise or shall have
otherwise ceased to continue in effect.
(d) The commencement by the Company of a voluntary
case, or the institution by it of proceedings, to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization, arrangement or relief under
the United States Bankruptcy Code or any other applicable
Federal or State law of a similar nature, or the consent or
acquiescence by it to the filing of any such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any substantial
part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action.
The foregoing provisions of this Section 7.1 are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements on its
part herein contained, other than the obligations on the part of
the Company contained in Article IV hereof, the Company shall not
be deemed in default during the continuance of such inability.
The term "force majeure" as used herein shall mean, without
limitation, the following: acts of God; strikes; lockouts or
other industrial disturbances; acts of public enemies; orders of
any kind of the government of the United States or of the State
of [Mississippi] or any of their departments, agencies or
officials, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraints of government and people; civil disturbances;
explosions; breakage or accident to machinery, transmission
lines, pipes or canals; partial or entire failure of utilities;
or any other cause or event not reasonably within the control of
the Company. The Company agrees, however, to remedy with all
reasonable dispatch the cause or causes preventing the Company
from carrying out its agreements; provided, that the settlement
of strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the Company, and the Company
shall not be required to make settlement of strikes, lockouts and
other industrial disturbances by acceding to the demands of the
opposing party or parties when such course is in the judgment of
the Company unfavorable to the Company.
SECTION 7.2. Remedies on Default. As provided in Section
7.6 hereof, whenever any event of default referred to in Section
7.1 hereof shall have occurred and be continuing, and further
upon the condition that the Bonds shall have become due and
payable pursuant to any provision of the Indenture:
(a) Payments required to be paid pursuant to
Section 4.4 of this Agreement shall, without further action,
become and be immediately due and payable.
(b) The Trustee shall have access to and may
inspect, examine and make copies of the books and records
and any and all accounts, data and income tax and other tax
returns of the Company.
(c) The Trustee may take whatever action at law
or in equity may appear necessary or desirable to collect
the amounts referred to in (a) above, then due and
thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the
Company under this Agreement.
Any amounts collected pursuant to action taken under this Section
7.2 shall be paid into the Bond Fund and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture), to the Company.
SECTION 7.3. No Remedy Exclusive. No remedy herein
conferred upon the Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon default shall impair
any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient.
SECTION 7.4. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should default under any of the
provisions of this Agreement and the County or the Trustee should
employ attorneys or incur other expenses for the collection of
amounts payable hereunder or the enforcement or performance or
observance of any obligation or agreement on the part of the
Company herein contained, the Company agrees that it will on
demand therefor pay to the County or the Trustee the reasonable
fees of such attorneys and such other expenses so incurred by the
County or the Trustee.
SECTION 7.5. No Additional Waiver Implied by One Waiver.
In the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights in
and under this Agreement to the Trustee under the Indenture, the
Issuer shall have no power to waive any default hereunder by the
Company without the consent of the Trustee.
SECTION 7.6. Remedial Rights Assigned To Trustee. Upon the
execution and delivery of the Indenture, the Trustee shall have
the exclusive right to exercise all rights and remedies granted
by this Article VII in the same manner and under the limitations
and conditions that the Trustee is entitled to exercise rights
and remedies upon the occurrence of an event of default pursuant
to Article VIII of the Indenture.
ARTICLE VIII
Options; Prepayment of Purchase Price
SECTION 8.1. Options. The Company shall have, and is
hereby granted, options to prepay the purchase price for the
Project in whole and to cancel or terminate this Agreement, and
to prepay the purchase price of the Project in part, as follows:
(a) At any time, so long as the Company is not in
default under this Agreement, the Company may prepay (i) the
entire purchase price together with accrued interest thereon
and terminate this Agreement, by paying moneys to the
Trustee for deposit in the Bond Fund which, after crediting
against the purchase price and accrued interest thereon the
amount then on deposit in the Bond Fund, will be equal to an
amount sufficient, or by delivering Government Obligations
or certificates of deposit of a qualified depository of the
State of [Mississippi] fully secured by Government
Obligations to the Trustee for deposit in the Bond Fund, the
principal of and the interest on which when due, after
crediting against the purchase price and accrued interest
thereon the amount then on deposit in the Bond Fund, will be
equal to an amount sufficient to pay the principal of all
Bonds to be outstanding on a date selected for redemption
(which date, under the Indenture, must be on or after ______
__, ____), interest to accrue on said Bonds to said date,
the redemption premium, if any, payable upon said date and
by paying or making provision for paying all fees and
expenses of the Trustee and any paying agents accrued or to
accrue to said date and by making arrangements satisfactory
to the Trustee for the giving at the appropriate time of the
required notice of redemption calling all Bonds to be
outstanding on said date of redemption; or (ii) part of the
purchase price and the County agrees that the Trustee may
accept such prepayments of purchase price payments when the
same are tendered by the Company; all purchase price
payments so prepaid under this part (ii) shall be paid to
the Trustee for deposit in the Bond Fund and credited
against the purchase price and interest obligation provided
in Section 4.4 hereof, or shall be used for the redemption
if the Bonds are then subject to redemption, or, at the
election of the Company, purchase of outstanding Bonds in
the manner and to the extent provided in the Indenture;
(b) If the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason, the Company may
prepay the entire purchase price and accrued interest
thereon and terminate this Agreement as hereinbefore
provided;
(c) If the Company shall have determined that the
continued operation of the Project is impracticable,
uneconomical or undesirable due to (i) the imposition of
taxes, other than ad valorem taxes currently levied upon
privately owned property used for the same general purpose
as the Project, or other liabilities or burdens with respect
to the Project or the operation thereof, (ii) changes in
technology, in environmental standards or legal requirements
or in the economic availability of materials, supplies,
equipment or labor or (iii) destruction of or damage to all
or part of the Project, the Company may prepay the entire
purchase price and accrued interest thereon and terminate
this Agreement as hereinafter provided;
(d) If all or substantially all of the Project or
the Plant, shall have been condemned or taken by eminent
domain, the Company may prepay the entire purchase price and
accrued interest thereon and terminate this Agreement as
hereinbefore provided;
(e) If the operation of the Project or the Plant
shall have been enjoined or shall have otherwise been
prohibited by an order, decree, rule or regulation of any
court or of any federal, state or local regulatory body,
administrative agency or other governmental body, the
Company may prepay the entire purchase price and accrued
interest thereon and terminate this Agreement as
hereinbefore provided.
The amount payable by the Company in the event of its
exercise of the right of accelerated payment of the purchase
price and interest pursuant to paragraphs (b), (c), (d) and (e)
of this Section 8.1 shall be the sum of (i) an amount of money to
be paid into the Bond Fund which, after crediting against such
amount the amount then on deposit in the Bond Fund and available
for such purpose, will be sufficient to retire and redeem at the
principal amount thereof all the outstanding Bonds on the date on
which such Bonds will be redeemed, including without limitation,
principal, all interest accrued or to accrue to the date of
redemption and redemption expenses but without premium, plus (ii)
an amount of money equal to the Trustee's and paying agents' fees
and expenses under the Indenture, and the expenses of the County
approved by the Company, accrued and to accrue until such final
payment and redemption of the Bonds.
SECTION 8.2. Notice of Prepayment. To exercise an option
granted in or to consummate a prepayment pursuant to this Article
VIII, the Company shall give written notice to the County and the
Trustee at least fifteen (15) days before the Trustee is required
to give notice of such prepayment which notice shall specify
therein the date of closing of the prepayment, which date shall
be not less than 45 days nor more than 90 days from the date the
notice is mailed and, in case of redemption of the Bonds, the
Company shall make arrangements satisfactory to the Trustee for
the giving of the required notice of redemption.
SECTION 8.3. Relative Position of this Article and
Indenture. The rights and options granted to the Company in
Section 8.1 hereof shall be and remain prior and superior to the
Indenture and may be exercised or shall be fulfilled, as the case
may be, whether or not the Company is in default hereunder,
provided that such default will not result in nonfulfillment of
any condition to the exercise of any such right or option.
ARTICLE IX
Miscellaneous
SECTION 9.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the County, at
the office of the ________________, _________________,
_______________, _______ ______; if to the Company, at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and if to the Trustee,
at __________________, ________, ______ ____, Attention:
Corporate Trust Department. A duplicate copy of each notice,
certificate or other communication given hereunder by either the
County or the Company or the other shall also be given to the
Trustee. 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 9.2. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the County, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Sections 5.3, 6.1 and 6.3 hereof.
SECTION 9.3. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
SECTION 9.4. Amounts Remaining in the Bond Fund. Any
amounts remaining in the Bond Fund upon expiration or sooner
termination of the terms of this Agreement, after payment in full
of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and the fees
and expenses of the Trustee and any paying agents in accordance
with the Indenture, shall belong to and be paid to the Company by
the Trustee.
SECTION 9.5. Amendments, Changes and Modifications.
Subsequent to the issuance of the Bonds and prior to their
payment in full (or provision for the payment thereof having been
made in accordance with the provisions of the Indenture), this
Agreement may not be effectively amended, changed, modified,
altered or terminated except with the prior written consent of
the Trustee (which shall not be unreasonably withheld) and in
accordance with the Indenture.
SECTION 9.6. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 9.7. Recording and Filing. The Company shall 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 receipts,
revenues and other amounts derived under this Agreement with
respect to the Project, including, without limitation, the filing
of all financing and continuation statements that may be required
under the [Mississippi] Uniform Commercial Code.
SECTION 9.8. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of [Mississippi.]
SECTION 9.9. No Charge Against County's Credit. This
Agreement shall inure to the benefit of and shall be binding upon
the County, the Company and their respective successors and
assigns, but no breach of any provision hereof shall ever
constitute or give rise to a pecuniary liability of the County,
or a charge against its general credit or taxing powers nor shall
the county be obligated hereunder except with respect to the
proper application of the proceeds to be derived from the sale of
the Bonds and the revenue and receipts to be derived by it from
the sale of the Project or any part thereof.
SECTION 9.10. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Agreement.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the County and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective seals to be hereunto affixed and attested by
their duly authorized officers, all as of the date first written.
[GOVERNMENTAL AUTHORITY]
By:
___________________________
Attest:
_________________________________
MISSISSIPPI POWER & LIGHT COMPANY
By:
Attest:
______________________________
Exhibit A to
[Facility] Agreement
Between [Governmental Authority]
and Mississippi Power & Light Company
DESCRIPTION OF PROJECT
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 the _________________ of _____________,
_____________, 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 LOUISIANA SS.:
PARISH OF _____________
Personally appeared before me, the undersigned authority in
and for the said parish 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 Mississippi Power & Light Company, 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)