Filed On 6/1/94 · SEC File 70-08405 · Accession Number 7323-94-17
As Of Filer Filing On/For/As Docs:Pgs
6/01/94 Entergy Arkansas Inc U-1/A 10:165
Pre-Effective Amendment to Application or Declaration · Form U-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: U-1/A File No. 70-8405 3 16K
2: EX-99 Exhibit B-1 25± 112K
3: EX-99 Exhibit B-2 36± 161K
4: EX-4 Exhibit B-3 59± 256K
5: EX-99 Exhibit D-1(A) 14± 43K
6: EX-99 Exhibit D-1(B) 6± 21K
7: EX-99 Exhibit D-2(A) 16± 47K
8: EX-99 Exhibit D-2(B) 2± 8K
9: EX-5 Exhibit F-1 2± 10K
10: EX-5 Exhibit F-2 2± 10K
Exhibit B-3
________________________________________________________________
___________ COUNTY, ARKANSAS
to
_________________________________________
____________________
_______________
TRUST INDENTURE _______________
Dated as of _______________
_________________________________________________________________
$__________ _________ County, Arkansas Pollution Control Revenue
Refunding Bonds, Series ____ (Arkansas Power & Light Company
Project)
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is not
part of the Trust Indenture
and is only for convenience of reference.)
Parties 1
Recitals 1
Granting Clauses 2
ARTICLE I
DEFINITIONS
Section 101 Definitions 5
Section 102 Use of Words 9
ARTICLE II
THE BONDS
Section 201 Authorized Form and Amount of Bonds 10
Section 202 Details of Series ____ Bonds 10
Section 203 Payment 11
Section 204 Execution 11
Section 205 Limited Obligation 11
Section 206 Authentication 11
Section 207 Delivery of the Bonds 12
Section 208 Mutilated, Destroyed or Lost Bonds 12
Section 209 Registration and Exchange of Bonds 13
Section 210 Cremation and Other Dispositions 14
Section 211 Additional Bonds 14
Section 212 Temporary Bonds 15
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301 Redemption Applicable to Series 16
____ Bonds Only
Section 302 Notice 17
Section 303 Redemption Payments 18
Section 304 Cancellation 18
Section 305 Partial Redemption of Bonds 18
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
Section 401 Payment of Principal, Premium, If 19
Any, and Interest
Section 402 Performance of Covenants 19
Section 403 Instruments of Further Assurance 20
Section 404 Recordation and Other Instruments 20
Section 405 Inspection of Project Books 20
Section 406 Rights Under Sale Agreement 20
Section 407 Prohibited Activities 20
Section 408 No Transfer of First Mortgage Bonds 21
Section 409 Voting of First Mortgage Bonds 21
Section 410 Surrender of First Mortgage Bonds 21
Section 411 Notice to Company Mortgage Trustees 21
ARTICLE V
REVENUES AND FUNDS
Section 501 Creation of Bond Fund 23
Section 502 Payments Into Bond Fund 23
Section 503 Use of Moneys in Bond Fund 23
Section 504 Withdrawals from Bond Fund 23
Section 505 Non-Presentment of Bonds 23
Section 506 Administration Expenses 24
Section 507 Moneys to be Held in Trust 24
Section 508 Refund to Company of Excess Payments 25
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601 Creation of Construction Fund 26
Section 602 Payments Into Construction Fund 26
Section 603 Disbursements From Construction Fund 26
Section 604 Balance In Construction Fund 26
Section 605 Redemption of Bonds Pursuant to 27
Section 301(a) or Similar Provisions
Section 606 Redemption Upon Taxability of Interest 28
Section 607 Acceleration of Bonds 28
Section 608 Refunding of Bonds 28
ARTICLE VII
INVESTMENTS
Section 701 Investment of Moneys 29
Section 702 Arbitrage Law Requirements 30
ARTICLE VIII
RIGHTS OF THE COMPANY
Section 801 Rights of Company Under Sale Agreement 32
Section 802 Enforcement of Rights and Obligations 32
ARTICLE IX
DISCHARGE OF LIEN
Section 901 Discharge of Lien 33
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001 Events of Default 35
Section 1002 Acceleration 35
Section 1003 Other Remedies; Rights of Bondholders 36
Section 1004 Right of Bondholders to Direct 37
Proceedings
Section 1005 Appointment of Receiver 37
Section 1006 Waiver 37
Section 1007 Application of Moneys 37
Section 1008 Remedies Vested in Trustee 39
Section 1009 Rights and Remedies of Bondholders 39
Section 1010 Termination of Proceedings 39
Section 1011 Waivers of Events of Default 40
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
Section 1101 Acceptance of Trusts 41
Section 1102 Fees, Charges and Expenses of Trustee 43
and Paying Agents
Section 1103 Notice to Bondholders of Default 44
Section 1104 Intervention by Trustee 44
Section 1105 Merger or Consolidation of Trustee 44
Section 1106 Resignation by Trustee 44
Section 1107 Removal of Trustee 45
Section 1108 Appointment of Successor Trustee 45
Section 1109 Concerning Any Successor Trustee 45
Section 1110 Reliance Upon Instruments 46
Section 1111 Appointment of Co-Trustee 46
Section 1112 Designation and Succession of Paying Agents 47
Section 1113 Several Capacities 47
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201 Supplemental Indentures without 48
Bondholder Consent
Section 1202 Supplemental Indentures requiring Bondholder 49
Consent
Section 1203 Consent of Company 50
Section 1204 Opinion of Bond Counsel 50
ARTICLE XIII
AMENDMENT TO SALE AGREEMENT
Section 1301 Amendments Not Requiring Consent of 51
Bondholders
Section 1302 Amendments Requiring Consent of 51
Bondholders
Section 1303 Opinion of Bond Counsel 51
ARTICLE XIV
MISCELLANEOUS
Section 1401 Consents, etc. of Bondholders 52
Section 1402 Limitation of Rights 52
Section 1403 Severability 52
Section 1404 Notices 53
Section 1405 Applicable Provisions of Law 53
Section 1406 Counterparts 53
Section 1407 Successors and Assigns 54
Section 1408 Captions 54
Section 1409 Photocopies and Reproductions 54
Section 1410 Bonds Owned by the County or the Company 54
Section 1411 Holidays 54
Signatures and Seals 55
Acknowledgments 56
Exhibit A - Form of Series ____ Bond 58
TRUST INDENTURE
This TRUST INDENTURE dated as of _______ _, ____, by
and between _________ COUNTY, ARKANSAS, a political subdivision
under the Constitution and laws of the State of Arkansas (here
inafter referred to as the "County"), as party of the first part,
and _________________________________________, an institution
organized under and existing by virtue of the laws of the United
States of America with its principal office, domicile and post
office address in __________, ________ (hereinafter referred to
as the "Trustee"), as party of the second part;
W I T N E S S E T H:
WHEREAS, the County is authorized and empowered under
the laws of the State of Arkansas, including particularly Title
14, Chapter 267 of the Arkansas Code of 1987 Annotated (the
"Act"), to issue revenue bonds and to expend the proceeds thereof
to finance and refinance the acquisition, construction,
reconstruction, extension, equipment or improvement of pollution
control facilities for the disposal or control of sewage, solid
waste, water pollution, air pollution, or any combination
thereof; and
WHEREAS, certain pollution control facilities
(hereinafter referred to as the "Facilities") have been, and are
being, acquired, constructed and equipped at the electric
generating plant of Arkansas Power & Light Company, an Arkansas
corporation (the "Company"), located within the boundaries of the
County near ____________, Arkansas and known as ________________
___ (hereinafter referred to as the "Plant"); and
WHEREAS, pursuant to and in accordance with the
provisions of the Act, the County has heretofore issued and
delivered its Pollution Control Revenue Bonds, Series ____
(Arkansas Power & Light Company Project), in the aggregate
principal amount of $_________ (the "Prior Bonds"), for the
purpose of financing the cost of acquiring, constructing and
equipping all or part of the Company's interest in the Facilities
(hereinafter referred to as the "Project"), and paying the
expenses of authorizing and issuing the Prior Bonds; and
WHEREAS, the County proposes to issue $_________
aggregate principal amount of its revenue bonds under the Act
(identified in Article I hereof and referred to herein as the
"Series ____ Bonds") for the purpose of refunding the Prior
Bonds; and
WHEREAS, the Series ____ Bonds bear interest, mature
and are subject to redemption as hereinafter in this Trust
Indenture set forth in detail; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the Countyaccording to the import thereof, and to constitute this
Trust Indenture a valid assignment and pledge of revenues to the
payment of the principal of and premium, if any, and interest on
the Bonds, in accordance with the provisions hereof, have or will
have been done and performed, and the creation, execution and
delivery of this Trust Indenture and the creation, execution and
issuance of the Bonds, subject to the terms hereof, have in all
respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS
TRUST INDENTURE WITNESSETH:
That the County, in consideration of the premises and
the acceptance by the Trustee of the trusts hereby created and of
the purchase and acceptance of the Bonds by the holders and
owners thereof, and the sum of One Dollar ($1.00), lawful money
of the United States of America, to it duly paid by the Trustee,
at or before the execution and delivery of these presents, and
for other good and valuable considerations, the receipt of which
is hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the County of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the County
hereinafter set forth:
1.
All the rights and interest of the County in and to the
Sale Agreement (as hereinafter defined) (except for the rights of
the County under Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the
Sale Agreement and any rights of the County to receive notices,
certificates, requests, requisitions, directions and other
communications under the Sale Agreement), including, without
limitation, its right to receive the First Mortgage Bonds (as
hereinafter defined); all Revenues (as hereinafter defined) and
the proceeds of all thereof; and the First Mortgage Bonds issued
and delivered by the Company pursuant to the Sale Agreement.
2.
All the rights and interest of the County in and to the
Bond Fund and the Construction Fund (as hereinafter defined), and
all moneys and investments therein, but subject to the provisions
of this Trust Indenture pertaining thereto, including those
pertaining to the making of disbursements therefrom.
3.
All moneys, securities and obligations from time to
time held by the Trustee under the terms of this Trust Indenture
and any and all real and personal property of every kind and
nature from time to time hereafter by delivery or by writing of
any kind conveyed, mortgaged, pledged, assigned or transferred,
as and for additional security hereunder by the County or by
anyone in its behalf or with its written consent to the Trustee
which is hereby authorized to receive any and all such property
at any and all times and to hold and apply the same subject to
the terms hereof; except for moneys, securities or obligations
deposited with or paid to the Trustee for redemption or payment
of Bonds which are deemed to have been paid in accordance with
Article IX hereof and funds held pursuant to Section 505 hereof,
which shall be held by the Trustee in accordance with the
provisions of said Article IX or Section 505, as the case may be.
TO HAVE AND TO HOLD all the same with all privileges
and appurtenances hereby conveyed and assigned, or agreed or
intended so to be, to the Trustee and its successors in said
trusts and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth for the equal and proportionate benefit and security of
all owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to lien
of any Bonds over any other Bonds, except insofar as any sinking,
amortization or other fund, or any terms or conditions of
redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds of any
particular series.
PROVIDED, HOWEVER, that if the County shall pay or
cause to be paid to the owners of the Bonds the principal of and
premium, if any, and interest to become due thereon at the times
and in the manner stipulated therein, and if the County shall
keep, perform and observe all and singular the covenants and
promises in the Bonds and in this Trust Indenture expressed as to
be kept, performed and observed by it on its part, all as
provided in and subject to the provisions of Article IX hereof,
then and in that case these presents and the estate and rights
hereby granted, except as otherwise provided in Article IX, shall
cease, determine and be void, and thereupon the Trustee shall
cancel and discharge the lien of this Trust Indenture and execute
and deliver to the County such instruments in writing as shall be
requisite to evidence the discharge hereof pursuant to the
provisions of said Article IX; otherwise this Trust Indenture to
be and remain in full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured hereunder
areto be issued, authenticated and delivered, and the Trust
Estate (as hereinafter defined) and the other estate and rights
hereby granted, are to be dealt with and disposed of, under, upon
and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the County has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words
and terms elsewhere defined in this Indenture, the following
words and terms as used in this Indenture shall have the
following meanings:
"Act" -- Title 14, Chapter 267 of the Arkansas Code of
1987 Annotated, as amended and enacted from time to time.
"Additional Bonds" -- The Bonds in addition to the
Series ____ Bonds, which are issued under the provisions of
Section 211 of this Indenture.
"Administration Expenses" -- The reasonable and
necessary expenses incurred by the County with respect to the
Sale Agreement, this Indenture and any transaction or event
contemplated by the Sale Agreement or this Indenture including
the compensation and reimbursement of expenses and advances
payable to the Trustee, any Paying Agent, and the Bond Registrar.
"Authorized Company Representative" -- The person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the County and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Senior Vice President, any Vice
President, or the Treasurer.
"Bonds" -- The Series ____ Bonds and all Additional
Bonds issued by the County pursuant to this Indenture.
"Bond Counsel" -- Any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the County and the Trustee.
"Bond Fund" -- The fund by that name created and
established in Section 501 of this Indenture.
"Bond Registrar" -- The registrar of Bonds named
herein.
"Capital Account" -- Any of the accounts by that name
created and established in Section 601 of this Indenture.
"Clerk" -- The person holding the office and performing
the duties of the County Clerk of the County.
"Code" -- The Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" -- Arkansas Power & Light Company, an
Arkansas corporation. The Company is a party to the Sale
Agreement, and the reference includes any successor or assignee
pursuant to the provisions thereof.
"Company Mortgage" -- The Mortgage and Deed of Trust
dated as of October 1, 1944, between the Company and Guaranty
Trust Company of New York (now Morgan Guaranty Trust Company of
New York) and Henry A. Theis (John W. Flaherty, successor), and,
as to property, real or personal, situated or being in Missouri,
Marvin A. Mueller (The Boatmen's National Bank of St. Louis,
successor), as trustees, as heretofore and hereafter amended and
supplemented.
"Company Mortgage Trustees" -- The trustees under the
Company Mortgage.
"Completion Date" -- The date of completion of the
Facilities as that date shall be certified as provided in Section
3.04 of the Sale Agreement.
"Construction Fund" -- The fund by that name created
and established in Section 601 of this Trust Indenture.
"Cost of Construction" -- All costs paid or incurred by
the Company with respect to the Facilities and the financing
there-of for the payment of which the County is authorized to
issue bonds under the Act, more particularly identified in the
Sale Agreement.
"County" -- ________ County, Arkansas, a political
subdivi-sion under the Constitution and laws of the State of
Arkansas.
"County Judge" -- The person holding the office and
performing the duties of the County Judge of the County.
"Event of Default" -- Any event of default specified in
Section 1001 hereof.
"Facilities" -- The pollution control facilities at the
Plant to be financed, in whole or in part, with the proceeds of
the Bonds (including any changes in, additions to, substitutions
for, or deletions of facilities or portions thereof made under
Section 3.03 of the Sale Agreement), more particularly identified
in the Sale Agreement.
"First Mortgage Bonds" -- The bonds of one or more
series issued and delivered under the Company Mortgage and held
by the Trustee pursuant to Section 5.03 of the Sale Agreement.
"Government Securities" -- (a) Direct or fully
guaranteed obligations of the United States of America (including
any suchsecurities issued or held in book-entry form on the books
of the Department of Treasury of the United States of America);
and
(b) Certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof; provided,
however, that the custodian of such obligations or specific
interest or principal payments shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock surplus and undivided profits of at
least $50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated to
pay to the holders of such certificates, depositary receipts or
other instruments the full amount received by such custodian in
respect of such obligations or specific payments and shall not be
permitted to make any deduction therefrom.
"holder" or "bondholder" or "owner of the Bonds" -- The
registered owner of any Bond.
"Indenture" -- This Trust Indenture and all amendments
and supplements hereto.
"Investment Account" -- Any of the accounts by that
name created and established in Section 601 of this Indenture.
"outstanding" -- When used with reference to the Bonds,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture; and
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and delivered
pursuant to this Indenture.
"Paying Agent" -- Any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds of a series are
payable, and any successor designated pursuant to this Indenture.
With respect to the Series ____ Bonds, the Trustee is the
original Paying Agent.
"Permitted Encumbrances" -- (a) The Installment Sale
Agreement dated as of _________ _, ____, by and between the
Countyand the Company, recorded in the office of the Circuit
Clerk and Ex Officio Recorder of _______ County, Arkansas in
Record Book ___ at page ___, and any amendments and supplements
thereto; (b) the Trust Indenture dated as of _________ _, ____,
by and between the County and
______________________________________, ___________, ________, as
Trustee, recorded in the office of the Circuit Clerk and Ex
Officio Recorder of _______ County, Arkansas in Record Book ___
at page ___, and any amendments and supplements thereto; (c) the
Installment Sale Agreement dated as of ________ _, ____, by and
between the County and the Company, recorded in the office of the
Circuit Clerk and Ex Officio Recorder of ______ County, Arkansas
in Record Book ____ at page ___, and any amendments and
supplements thereto; (d) the Trust Indenture dated as of ________
_, ____, by and between the County and
___________________________________ ________________, ________,
as Trustee, recorded in the office of the Circuit Clerk and Ex
Officio Recorder of ______ County, Arkansas in Record Book ____
at page ___, and any amendments and supplements thereto; (e) the
Installment Sale Agreement dated as of ________ _, ____, by and
between the County and the Company, recorded in the office of the
Circuit Clerk and Ex Officio Recorder of ________ County,
Arkansas in Record Book ____ at page ___, and any amendments and
supplements thereto; (f) the Trust Indenture dated as of
________ _, ____, by and between the County and
_________________________________________, __________, ________,
as Trustee, recorded in the office of the Circuit Clerk and Ex
Officio Recorder of _______ County, Arkansas in Record Book ____
at page ___, and any amendments and supplements thereto; (g)
liens for taxes, assess-ments and other governmental charges not
delinquent or which can be paid without penalty; (h) unfiled,
inchoate mechanics' and materialmen's liens for construction work
in progress; (i) workmen's, repairmen's, warehousemen's and
carriers' liens and other similar liens, if any, arising in the
ordinary course of business; (j) all the following, if they do
not individually or in the aggregate materially impair the use of
the Facilities or materially detract from the value thereof to
the Company, viz.: any easements, restrictions, mineral, oil, gas
and mining rights and reservations, zoning laws and defects in
title or other encumbrances to which the Facilities may be
subject because of the installation thereof at the Plant; (k) any
lien for the satisfaction and discharge of which a sum of money
or a surety bond is on deposit with the Trustee; (l) the rights
of the County and the Company under the Sale Agreement and any
subsequent installment sale agreement or lease relating to all or
any part of the Facilities; (m) the rights of the Trustee under
this Indenture; and (n) the lien of the Company Mortgage and the
"Excepted Encumbrances" referred to therein.
"person" -- Includes natural persons, firms,
associations, corporations and public bodies.
"Plant" -- The Company's electric generating plant
located within the boundaries of the County near ____________,
Arkansas and known as ____________________.
"Prior Bonds" -- The County's Pollution Control Revenue
Bonds, Series ____, in the aggregate principal amount of
$_________.
"Record Date" -- With respect to any interest payment
date of the Bonds occurring on the first day of any month, the
fifteenth day of the calendar month next preceding such interest
payment date; and with respect to any interest payment date of
the Bonds occurring on the fifteenth day of any month, the first
day of such month.
"Revenues" -- All moneys paid or payable by the Company
to the Trustee for the account of the County in respect of the
principal of and premium, if any, and interest on the First
Mortgage Bonds, including, without limitation, amounts paid or
payable by the Company pursuant to Sections 5.02 and 9.01 of the
Sale Agreement, and all receipts of the Trustee credited under
the provisions of this Indenture against such payments.
"Sale Agreement" -- The Installment Sale Agreement
dated as of _______ _, ____, by and between the County and the
Company, and any amendments and supplements thereto.
"Series ____ Bonds" -- The initial issue of Bonds under
and secured by this Indenture in the aggregate principal amount
of $__________.
"Trustee" -- The banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is
___________________________ _____________, __________, ________.
"Trust Estate" -- The property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
Section 102. Use of Words. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bond", "owner", "holder" and
"person" shall include the plural, as well as the singular,
number.
ARTICLE II
THE BONDS
Section 201. Authorized Form and Amount of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with this Article. All Bonds issued hereunder
shall be in the form of registered Bonds without coupons. The
total principal amount of Bonds that may be issued is hereby
expressly limited to $__________, except as provided in Sections
208, 211 and 212 hereof.
Section 202. Details of Series ____ Bonds. The Series
____ Bonds (i) shall be designated "______ County, Arkansas
Pollution Control Revenue Refunding Bonds, Series ____ (Arkansas
Power & Light Company Project)," (ii) shall be in the aggregate
principal amount of $__________, (iii) shall be issued in the
denomination of $_____ each, or any integral multiple thereof,
(iv) shall be numbered consecutively from 1 upwards in order of
issuance according to the records of the Trustee, (v) shall be
dated as hereinafter provided, (vi) shall bear interest as
hereinafter provided, payable semiannually on _______ 1 and
____ 1 of each year commencing ____ 1, ____, and (vii) shall
mature on _______ 1, ____.
The Series ____ Bonds shall bear interest from and
including the date thereof until the principal thereof shall have
become due and payable in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise, at the rate of
_____ percent (____%) per annum. Overdue principal of the Series
____ Bonds shall bear interest at the rate of ___ percent (_%)
per annum until paid. Overdue installments of interest shall not
bear interest.
Series ____ Bonds issued before ____ 1, ____, shall be
dated as of _______ 1, ____, and Series ____ Bonds issued on or
subsequent to ____ 1, ____, shall be dated as of the interest
payment date next preceding the date of authentication and
delivery thereof by the Trustee, unless such date of
authentication and delivery shall be an interest payment date, in
which case they shall be dated as of such date of authentication
and delivery; provided, however, that if, as shown by the records
of the Trustee, interest on any Bonds surrendered for transfer or
exchange shall be in default, the Bonds issued in exchange for
Bonds surrendered for transfer or exchange shall be dated as of
the date to which interest has been paid in full on the Bonds
surrendered.
The Series ____ Bonds shall be substantially in the
form set forth in Exhibit A attached hereto with such appropriate
variations, omissions and insertions as are permitted or required
by this Indenture.
Section 203. Payment. The principal of and premium,
if any, on the Bonds shall be paid upon the presentation and
surrender of said Bonds at the principal corporate trust office
of the Trustee. The interest on the Bonds shall be payable by
check drawn upon the Trustee and mailed to the registered owners
as of the close of business on the Record Date with respect to
the interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
Section 204. Execution. The Bonds shall be executed
on behalf of the County by the County Judge and the County Clerk
(by their manual or facsimile signatures) and shall have
impressed or imprinted thereon the seal of the County. A
facsimile signature shall have the same force and effect as if
personally signed. In case any officer whose signature or
facsimile of whose signature shall appear on the Bonds shall
cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, the same as if he had remained in
office until delivery.
Section 205. Limited Obligation. The Bonds, together
with interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the revenues pledged to
the Bond Fund, which revenues are hereby pledged and mortgaged
for the equal and ratable payment of the Bonds (principal,
premium, if any, and interest) and shall be used for no other
purpose than to pay the principal of and premium, if any, and
interest on the Bonds, except as may be otherwise expressly
authorized in this Indenture. The Bonds (including premium, if
any) and interest thereon shall not constitute an indebtedness of
the County within the meaning of any constitutional or statutory
provision and shall never constitute an obligation of or a charge
against the general credit or taxing powers of the County.
Section 206. Authentication. Only such Bonds as shall
have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A attached hereto
duly executed by the Trustee shall be entitled to any right or
benefit under this Indenture. No Bond shall be valid and
obligatory for any purpose unless and until such Certificate of
Authentication shall have been duly executed by the Trustee, and
such Certificate of the Trustee upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of the Trustee, but it shall
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
Section 207. Delivery of the Bonds. The County shall
execute and deliver to the Trustee and the Trustee shall
authenticate the Bonds of any series and deliver said Bonds to
the original purchaser or purchasers thereof as may be directed
hereinafter in this Section 207, in Section 211 hereof, or in any
supplemental indenture.
Prior to the delivery on original issuance by the
Trustee of any authenticated Bonds of any series there shall be
or have been delivered to the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and, in the case of Additional
Bonds, a supplemental indenture by and between the County and the
Trustee setting forth the details concerning such Bonds.
(b) An original duly executed counterpart or a duly
certified copy of the Sale Agreement and, in the case of
Additional Bonds, an amendment of or supplement to the Sale
Agreement, if any.
(c) (i) An original duly executed counterpart or a
duly certified copy of the indenture supplemental to the Company
Mortgage creating the series of First Mortgage Bonds to be issued
in respect of such series of Bonds as provided in Section 5.03 of
the Sale Agreement and (ii) such First Mortgage Bonds.
(d) A written order to the Trustee by the County to
authenticate and deliver the Bonds of such series to the original
purchasers thereof upon payment to Trustee, but for the account
of the County, of a sum specified in such order.
(e) A copy, duly certified by the Clerk, of the
proceedings of the governing body of the County authorizing the
issuance of the Bonds.
(f) In the case of any series of Additional Bonds, a
written opinion of Bond Counsel, to the effect that the issuance
of such Bonds and the execution thereof have been duly
authorized, all conditions precedent to the delivery thereof have
been fulfilled, and that the exclusion of the interest on the
Series ____ Bonds and any Additional Bonds theretofore issued
from gross income for federal income tax purposes will not be
affected by the issuance of the Bonds being issued.
Section 208. Mutilated, Destroyed or Lost Bonds. In
case any Bond issued hereunder shall become mutilated or be
destroyed or lost, the County shall, if not then prohibited by
law, cause to be executed and the Trustee shall authenticate and
deliver a new Bond of the same series of like date, number,
maturity and tenor in exchange and substitution for and upon
cancellation of such mutilated Bond, or in lieu of and in
substitution for such Bond destroyed or lost, upon the holder's
paying the reasonable expensesand charges of the County and
Trustee in connection therewith, and, in the case of a Bond
destroyed or lost, his filing with the Trustee evidence
satisfactory to the Company and the Trustee that such Bonds were
destroyed or lost, and of his ownership thereof, and furnishing
the County, the Company and the Trustee with indemnity
satisfactory to them. The Trustee is hereby authorized to
authenticate any such new Bond. In the event any such Bonds
shall have matured, instead of issuing a new Bond, the County may
pay the same without the surrender thereof.
Section 209. Registration and Exchange of Bonds. The
County hereby constitutes and appoints the Trustee as Bond
Registrar of the County, and as Bond Registrar the Trustee shall
keep books for the registration and for the transfer of the Bonds
as provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the County, the Trustee, nor the Bond
Registrar shall be affected by any notice to the contrary but
such registration may be changed as herein provided. All
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Bonds may be transferred on the books of registration
kept by the Trustee by the registered owner in person or by his
duly authorized attorney, upon surrender thereof, together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the County
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations of
the same series with corresponding maturities. The County shall
execute and the Trustee shall authenticate and deliver Bonds
which the bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding. The execution by the
County of any Bond of any denomination shall constitute full and
due authorization of such denomination and the Trustee shall
thereby be authorized to authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds
shall be without charge to the holders of such Bonds, but any
taxes or other governmental charges required to be paid with
respect tothe same shall be paid by the holder of the Bond
requesting such transfer or exchange as a condition precedent to
the exercise of such privilege.
The Trustee shall not be required to transfer or
exchange any Bond after the mailing of notice calling such Bond
for redemption has been made, nor during the period of fifteen
(15) days next preceding mailing of a notice of redemption of any
Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
Section 210. Cremation and Other Dispositions. All
Bonds surrendered for the purpose of payment or retirement, or
for exchange, or for replacement or payment as provided above, or
for cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the County an appropriate certificate describing the
Bonds involved and the manner of disposition.
Section 211. Additional Bonds. The County, at the
request of the Company and to the extent permitted by law in
effect at the time thereof, may issue from time to time one or
more series of Additional Bonds for the purposes provided in
Section 4.02 of the Sale Agreement. Additional Bonds shall be
secured equally and ratably with the Series ____ Bonds and any
other Additional Bonds theretofore issued and then outstanding,
except insofar as any sinking, amortization or other fund, or any
terms or conditions of redemption or purchase, established under
this Indenture may afford additional benefit or security for the
Bonds of any particular series, and except as set forth in
Section 5.03 of the Sale Agreement. Before any Additional Bonds
are authenticated there shall be delivered to the Trustee the
items required for the issuance of Bonds by Section 207 hereof.
The right to issue Additional Bonds set forth in this
Indenture shall not imply that the County may not issue, and the
County expressly reserves the right to issue, to the extent
permitted by law, obligations under another indenture or
indentures to provide additional funds to pay the Cost of
Construction, or to refund all or any principal amount of all or
any series of Bonds, or any combination thereof, and the
provisions of this Indenture governing the issuance of Additional
Bonds shall not apply thereto.
The proceeds of the issuance and sale of any series of
Additional Bonds, including purchase premium, if any, and
accruedinterest, if any, thereon to the date of delivery thereof
paid by the original purchasers thereof, shall be applied
simultaneously with the delivery of such Additional Bonds in the
manner provided in this Indenture and in the supplemental
indenture authorizing such Additional Bonds.
Notwithstanding anything herein to the contrary, no
Additional Bonds shall be issued unless (i) the Sale Agreement is
in effect, and (ii) at the time of issuance there is no Event of
Default (as defined in the Sale Agreement) under the Sale
Agreement or Event of Default under this Indenture.
Section 212. Temporary Bonds. Until Bonds in
definitive form are ready for delivery, the County may execute,
and upon the request of the County, the Trustee shall
authenticate and deliver, subject to the provisions, limitations
and conditions set forth herein, one or more Bonds in temporary
form, whether printed, typewritten, lithographed or otherwise
produced, substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the County
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption Applicable to Series ____
Bonds Only. The Series ____ Bonds shall be subject to redemption
prior to maturity as follows:
(a) The Series ____ Bonds shall be subject to optional
redemption by the County, at the direction of the Company, in
whole but not in part, at any time, at a redemption price equal
to the principal amount being redeemed plus accrued interest to
the redemption date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
is impracticable, uneconomical or undesirable due to
(A) the imposition of taxes, other than ad valorem
taxes currently levied upon privately owned property
used for the same general purpose as the Facilities, or
other liabilities or burdens with respect to the
Facilities or the construction or operation thereof,
(B) changes in technology, in environmental standards
or legal re-quirements or in the economic availability
of materials, supplies, equipment or labor or (C)
destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of the Facilities
or the Plant shall have been condemned or taken by
eminent domain; or
(iv) the construction or operation of the
Facilities or the Plant shall have been enjoined or
shall have otherwise been prohibited by any order,
decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Series ____ Bonds shall be subject to
mandatory redemption, at a redemption price equal to the
principal amount being redeemed plus accrued interest to the
redemption date, on the one hundred eightieth day (or such
earlier date as may be designated by the Company) after a final
determination by a court of competent jurisdiction or an
administrative agency, to the effect that as a result of a
failure by the Company to perform or observe any covenant,
agreement or representation contained in the Sale Agreement, the
interest payable on the Series ____ Bonds is included for federal
income tax purposes in the gross income of thebondholders
thereof, other than any bondholder who is a "substantial user" of
the Facilities or a "related person" within the meaning of
Section 147(a) of the Code. No determination by any court or
administrative agency will be considered final unless the Company
has participated in the proceeding which resulted in such
determination, either directly or through a bondholder, to a
degree it reasonably deems sufficient and until the conclusion of
any appellate review sought by any party to such proceeding or
the expiration of the time for seeking such review. The Series
____ Bonds shall be redeemed either in whole or in part in such
principal amount that the interest payable on the Series ____
Bonds remaining outstanding after such redemption would not be
included in the gross income of any bondholder thereof, other
than a bondholder who is a "substantial user" of the Facilities
or a "related person" within the meaning of Section 147(a) of the
Code.
(c) The Series ____ Bonds shall be subject to optional
redemption by the County, at the direction of the Company, 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 below, plus accrued interest to the redemption date:
Redemption Redemption
Period Price
_________, ____ through ________ __, ____ ___%
_________, ____ through ________ __, ____ ___%
_________, ____ through ________ __, ____ ___%
_________, ____ through ________ __, ____ ___%
_________, ____ and thereafter 100%
The Series ____ 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.
In case a Series ____ Bond is of a denomination larger
than $_____, a portion of such Bond ($_____ or any integral
multiple thereof) may be redeemed if otherwise permitted, but
Series ____ Bonds shall be redeemed only in the principal amount
of $_____ or any integral multiple thereof.
Section 302. Notice. Notice of the call for any
redemption, identifying the Bonds or portions thereof being
called and the date on which they shall be presented for payment,
shall be given by the Trustee by first class mail, postage
prepaid, to theregistered owner of each such Bond addressed to
such registered owner at his registered address and placed in the
mails not less than thirty (30) days nor more than sixty (60)
days prior to the date fixed for redemption; provided, however,
that failure to give such notice by mailing, or any defect
therein, shall not affect the validity of any proceeding for the
redemption of any Bond with respect to which no such failure or
defect has occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at
the option of the County (at the direction of the Company),
unless moneys sufficient to pay the principal of and premium, if
any, and interest on the Bonds to be redeemed shall have been
received by the Trustee prior to the giving of such notice, such
notice shall state that said redemption shall be conditional upon
the receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
Section 303. Redemption Payments. Subject to the
provisions of the last paragraph of Section 302 hereof, on or
prior to the date fixed for redemption, funds shall be deposited
with the Trustee to pay, and the Trustee is hereby authorized and
directed to apply such funds to the payment of, the Bonds or
portions thereof to be redeemed, together with accrued interest
thereon to the redemption date and any required premium. Upon
the giving of notice and the deposit of funds for redemption,
interest on the Bonds or portions thereof thus redeemed shall no
longer accrue after the date fixed for redemption.
Section 304. Cancellation. All Bonds which have been
redeemed shall not be reissued but shall be canceled and disposed
of by the Trustee in accordance with Section 210 hereof.
Section 305. Partial Redemption of Bonds. Upon
surrender of any Bond for redemption in part only, the County
shall execute and the Trustee shall authenticate and deliver to
the holder thereof a new Bond or Bonds of the same series and the
same maturity, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
ARTICLE IV
GENERAL COVENANTS; THE FIRST MORTGAGE BONDS
Section 401. Payment of Principal, Premium, If Any,
and Interest. The County covenants that it will promptly pay or
cause to be paid the principal of and premium, if any, and
interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in the Bond
according to the true intent and meaning thereof; provided,
however, that the obligation of the County hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or premium, if any, or interest on the Bonds shall
be reduced by the amount of moneys, if any, on deposit in the
Bond Fund and available to be applied by the Trustee toward the
payment of the principal of or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds) are payable solely from the Revenues, which Revenues are
hereby specifically pledged to the payment thereof in the manner
and to the extent herein specified, and nothing in the Bonds or
this Indenture should be considered as assigning or pledging any
funds or assets of the County other than the Revenues and the
right, title and interest of the County in the Sale Agreement
(except for the rights of the County under Sections 5.05, 5.06,
5.07, 6.03, and 8.05 of the Sale Agreement and any rights of the
County to receive notices, certificates, requests, requisitions,
directions and other communications under the Sale Agreement) in
the manner and to the extent herein specified. Anything in this
Indenture to the contrary notwithstanding, it is understood that
whenever the County makes any covenants involving financial
commitments, including, without limitation, those in the various
sections of this Article IV, it pledges no funds or assets other
than the Revenues and the right, title and interest of the County
in the Sale Agreement (except for the rights of the County under
Sections 5.05, 5.06, 5.07, 6.03, and 8.05 of the Sale Agreement
and any rights of the County to receive notices, certificates,
requests, requisitions, directions and other communications under
the Sale Agreement), the Bond Fund and the Construction Fund in
the manner and to the extent herein specified, but nothing herein
shall be construed as prohibiting the County from using any other
funds or assets.
Section 402. Performance of Covenants. The County
covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all ordinances
pertaining thereto. The County covenants that it is duly
authorized under the Constitution and laws of the State of
Arkansas, including particularly and without limitation the Act,
to issue Bonds authorized hereby and to execute this Indenture
and to make the pledge and covenants in the manner and to the
extent herein set forth; that all action on itspart for the
issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds
in the hands of the holders and owners thereof are and will be
valid and enforceable obligations of the County according to the
import thereof.
Section 403. Instruments of Further Assurance. The
County covenants that it will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and
delivered, such indenture or indentures supplemental hereto and
such further acts, instruments and transfers as the Trustee may
reasonably require for the better assuring, transferring,
mortgaging, pledging, assigning and confirming unto the Trustee
the Trust Estate.
Section 404. Recordation and Other Instruments. The
County and the Trustee covenant that they will cooperate with the
Company in causing this Indenture, the Sale Agreement, such
security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to
time to be kept, to be recorded and filed in such manner and in
such places as may be required by law in order to fully preserve
and protect the security of the holders and owners of the Bonds
and the rights of the Trustee hereunder, and to perfect the
security interest created by this Indenture.
Section 405. Inspection of Project Books. The County
and the Trustee covenant and agree that all books and documents
in their possession relating to the Facilities and the revenues
derived from the Facilities (including the records pertaining to
the Construction Fund) shall at all reasonable times be open to
inspection by such accountants or other agencies as the other
party may from time to time designate and by the Company.
Section 406. Rights Under Sale Agreement. The Sale
Agreement, a duly executed counterpart of which has been filed
with the Trustee, sets forth the covenants and obligations of the
County and the Company, including provisions that subsequent to
the issuance of Bonds and prior to their payment in full or
provision for payment thereof in accordance with the provisions
hereof the Sale Agreement may not be effectively amended,
changed, modified, altered or terminated, or any provision waived
without the written consent of the Trustee, and reference is
hereby made to the same for a detailed statement of said
covenants and obligations of the Company thereunder, and the
County agrees that the Trustee in its name or in the name of the
County may enforce all rights of the County and all obligations
of the Company under and pursuant to the Sale Agreement, for and
on behalf of the bondholders, whether or not the County is in
default hereunder.
Section 407. Prohibited Activities. The County and
the Trustee covenant that neither of them shall take any action
or suffer or permit any action to be taken or condition to exist
whichcauses or may cause the interest payable on the Bonds to be
includable in gross income for purposes of federal income
taxation. Without limiting the generality of the foregoing, the
County and the Trustee covenant that (a) the proceeds of the sale
of the Bonds, the earnings thereon, and any other moneys on
deposit in any fund or account maintained in respect of the Bonds
(whether such moneys were derived from the proceeds of the sale
of the Bonds or from other sources) will not be used in a manner
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Code, and (b) all action
with respect to the Bonds required by Section 148(f) of the Code
shall be taken in a timely manner.
Section 408. No Transfer of First Mortgage Bonds. The
Trustee shall not sell, assign or transfer the First Mortgage
Bonds except to a successor trustee under this Indenture.
Section 409. Voting of First Mortgage Bonds. The
Trustee shall, as the holder of the First Mortgage Bonds, attend
such meeting or meetings of bondholders under the Company
Mortgage or, at its option, deliver its proxy in connection
therewith, as relate to matters with respect to which it is
entitled to vote or consent. So long as no Event of Default
hereunder shall have occurred and be continuing, either at any
such meeting or meetings, or otherwise when the consent of the
holders of the Company's first mortgage bonds issued under the
Company Mortgage is sought without a meeting, the Trustee shall
vote as the holder of the First Mortgage Bonds, or shall consent
with respect thereto, proportionately with what the Trustee
reasonably believes will be the vote or consent of the holders of
all other first mortgage bonds of the Company then outstanding
under the Company Mortgage the holders of which are eligible to
vote or consent; provided, however, that the Trustee shall not
vote as such holder in favor of, or give its consent to, any
amendment or modification of the Company Mortgage which is
correlative to any amendment or modification of this Indenture
referred to in Section 1202 hereof without the prior consent and
approval, obtained in the manner prescribed in said Section 1202,
of bondholders which would be required under said Section 1202
for such correlative amendment or modification of this Indenture.
Any action taken by the Trustee in accordance with the
provisions of this Section 409 shall be binding upon the County
and the bondholders.
Section 410. Surrender of First Mortgage Bonds. The
Trustee shall surrender First Mortgage Bonds to the Company
Mortgage Trustees in accordance with the provisions of Section
5.03(d) of the Sale Agreement.
Section 411. Notice to Company Mortgage Trustees. In
the event that a payment on the First Mortgage Bonds shall
havebecome due and payable and shall not have been fully paid,
the Trustee shall forthwith give notice thereof to the Company
Mortgage Trustees specifying the amount of funds required to make
such payment. In the event that any Bonds are to be redeemed
pursuant to any provisions of this Indenture requiring mandatory
redemption of Bonds of any series (other than at the direction of
the Company), except for provisions which establish sinking fund
redemption requirements, the Trustee shall forthwith give notice
thereof to the Company Mortgage Trustees specifying the principal
amount of Bonds so to be redeemed and the redemption date
therefor. Any such notice given by the Trustee shall be signed by
its President, a Vice President or a Trust Officer thereof. The
Trustee shall incur no liability for failure to give any such
notice and such failure shall have no effect on the obligations
of the Company on the First Mortgage Bonds or on the rights of
the Trustee or of the bondholders.
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of Bond Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the County to be designated "________
County, Arkansas Pollution Control Revenue Refunding Bond Fund -
Arkansas Power & Light Company Project".
Section 502. Payments Into Bond Fund. There shall be
deposited into the Bond Fund as and when received:
(a) All accrued interest received at the time of
the issuance and delivery of the Bonds;
(b) Amounts transferred to the Bond Fund pursuant
to the provisions of Sections 604, 605, 606
and 607 hereof;
(c) All Revenues; and
(d) All moneys received by the Trustee under and
pursuant to any of the provisions of the Sale
Agreement or this Indenture which are not
directed to be paid into a fund (or held)
other than the Bond Fund.
Section 503. Use of Moneys in Bond Fund. Except as
otherwise provided in Sections 508 and 1102 hereof, moneys in the
Bond Fund shall be used solely for the payment of the principal
of and premium, if any, and interest on the Bonds.
Section 504. Withdrawals from Bond Fund. The Bond
Fund shall be in the name of the County, designated as set forth
in Section 501, and the County hereby irrevocably authorizes and
directs the Trustee to withdraw from the Bond Fund sufficient
funds to pay the principal of and premium, if any, and interest
on the Bonds at maturity and redemption prior to maturity and to
use such funds for the purpose of paying principal, premium, if
any, and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
Trustee hereby accepts.
Section 505. Non-Presentment of Bonds. In the event
any Bonds shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Trustee for that purpose, or left in trust if
previously so deposited, funds sufficient to pay the principal
thereof, and premium, if any, together with all interest unpaid
and due thereon, to the due date thereof, for the benefit of the
holder thereof, allliability of the County to the holder thereof
for the payment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
Section 506. Administration Expenses. It is
understood and agreed that pursuant to the provisions of Section
5.05 of the Sale Agreement, the Company agrees to pay the
Administration Expenses of the County. All such payments under
the Sale Agreement which are received by the Trustee shall not be
paid into the Bond Fund, but shall be segregated by the Trustee
and expended solely for the purpose for which such payments are
received.
Section 507. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for deposit
into the Bond Fund or the Construction Fund under any provision
of this Indenture and all moneys withdrawn from the Bond Fund and
held by any Paying Agent, shall be held by the Trustee or such
Paying Agent in trust, and except for moneys deposited with or
paid to the Trustee for the redemption of Bonds, notice of which
redemption has been duly given, and for moneys deposited with or
paid to the Trustee pursuant to Article IX hereof, shall, while
held by the Trustee or any Paying Agent, constitute part of the
Trust Estate and be subject to the lien hereof. Any moneys
received by or paid to the Trustee pursuant to any provisions of
the Sale Agreement calling for the Trustee to hold, administer
and disburse the same in accordance with the specific provisions
of the Sale Agreement shall be held, administered and disbursed
pursuant to such provisions, and where required by the provisions
of the Sale Agreement the Trustee shall set the same aside in a
separate account. The County agrees that if it shall receive any
moneys pursuant to applicable provisions of the Sale Agreement,
it will forthwith upon receipt thereof pay the same over to the
Trustee to be held, administered and disbursed by the Trustee in
accordance with the provisions of the Sale Agreement pursuant to
which the County may have received the same. Furthermore, if for
any reason the Sale Agreement ceases to be in force and effect
while any Bonds are outstanding, the County agrees that if it
shall receive any moneys derived from the Facilities, it will
forthwith upon receipt thereof pay the same over to the Trustee
to be held, administered and disbursed by the Trustee in
accordance with provisions of the Sale Agreement that would be
applicable if the Sale Agreement were then in force and effect,
and if there be no such provisions which would be so applicable,
then the Trustee shall hold, administer and disburse such moneys
solely for the discharge of the County's obligations under this
Indenture.
Section 508. Refund to Company of Excess Payments.
Anything herein to the contrary notwithstanding, the Trustee is
authorized and directed to refund to the Company all excess
amounts as specified in the Sale Agreement, whether such excess
amounts be in the Bond Fund or in special accounts.
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. Creation of Construction Fund. There is
hereby created and ordered to be established with the Trustee a
special account of the County to be designated "_________ County,
Arkansas Pollution Control Revenue Refunding Bond Construction
Fund - Arkansas Power & Light Company Project". The Trustee
shall establish and maintain within the Construction Fund, in
respect of each series of Bonds issued hereunder, a "Capital
Account" and an "Investment Account."
Section 602. Payments into Construction Fund. The
proceeds from the issuance and sale of each series of Bonds,
other than accrued interest, if any, on such Bonds to the date of
delivery thereof paid by the original purchaser or purchasers
thereof, shall be deposited into the Capital Account established
in respect of such series of Bonds. All income or other gain
from the investment of moneys in the Capital Account or the
Investment Account maintained in respect of any series of Bonds
shall be deposited into the Investment Account for such series of
Bonds.
Section 603. Disbursements from Construction Fund.
Moneys in the Construction Fund shall be disbursed by the Trustee
to pay Cost of Construction or to reimburse the Company for Cost
of Construction paid by it, all in accordance with and pursuant
to the provisions of the Sale Agreement. The Trustee shall keep
and maintain adequate records pertaining to each account within
the Construction Fund and all disbursements therefrom and shall
file an accounting thereof if and when requested by the County or
the Company.
Section 604. Balance in Construction Fund. Upon
receipt by the Trustee of a certificate furnished pursuant to
Section 3.04 or Section 3.08 of the Sale Agreement, any balance
remaining in the Capital Account or the Investment Account
maintained within the Construction Fund in respect of a series of
Bonds (except for amounts retained by the Trustee at the
Company's direction for Cost of Construction not then due and
payable), shall at the direction of the Company be transferred by
the Trustee into the Bond Fund; provided, however, no amount
shall be transferred into the Bond Fund unless an amount equal to
at least 95% of the sum of the net proceeds of such series of
Bonds (within the meaning of Section 142(a) of the Code), and the
total amount of moneys accrued in the Investment Account and the
investment income expected to be received from amounts so
deposited in the Bond Fund, have been used (i) for the
acquisition, construction, reconstruction or improvement of land
or property of a character subject to the allowance for
depreciation under Section 167 of the Code, or for payment of
amounts which are, for federal income tax purposes, chargeable to
the Facilities' capital account (for example, underSection 263 of
the Code) or would be so chargeable either with a proper election
by the Company or but for a proper election by the Company to
deduct such amounts, and (ii) to provide sewage or solid waste
disposal facilities within the meaning of Section 142(a)(5) or
(6) of the Code and regulations thereunder, provided that the
moneys paid from the Investment Account shall be disregarded for
purposes of the foregoing computation if the Company shall have
submitted to the Trustee an opinion of Bond Counsel to the effect
that such moneys may be so disregarded without impairing the
exemption from federal income taxes of interest on the Bonds.
Any amount not transferred into the Bond Fund as provided above
(exclusive of amounts retained by the Trustee in the Construction
Fund for payment of Costs of Construction not then due and
payable) shall be segregated by the Trustee and used by the
Trustee for (a) the redemption of Bonds of the same series of
Bonds from which such moneys were derived on or prior to the
earliest redemption date permitted by this Indenture without a
premium or penalty in accordance with the provisions of this
Indenture; or (b) the payment of a portion of the annual
principal due on Bonds of the same series from which such moneys
were derived (i) in years before such Bonds are subject to
redemption without premium or penalty, or (ii) in years when such
Bonds are subject to redemption without premium or penalty but
only in an amount in excess of the unexpended proceeds of such
Bonds, provided, however, that the portion of the annual
principal payment, if any, due on such Bonds that may be paid
hereunder shall not exceed an amount that bears the same ratio to
the annual principal due that the total unexpended proceeds of
such Bonds (exclusive of investment earnings) bear to the face
amount of such Bonds; or (c) any other purpose provided that the
Trustee is furnished with an opinion of Bond Counsel to the
effect that such use is lawful under the Act and will not
adversely affect the exclusion of interest on any of the Bonds
from gross income for purposes of federal income taxation. Until
used for one or more of the foregoing purposes, such segregated
amount may be invested as permitted by this Indenture but may not
be invested, without an opinion of Bond Counsel to the effect
that such investment will not adversely affect the exclusion of
interest on any of the Bonds from gross income for purposes of
federal income taxation, to produce a yield greater than the
yield on the Bonds, all in accordance with Section 148 of the
Code and regulations thereunder.
Section 605. Redemption of Bonds Pursuant to Section
301(a) or Similar Provisions. In the event that Bonds of any
series are to be redeemed pursuant to Section 301(a) hereof or
any similar provision contained in any supplemental indenture,
the Trustee shall, at the direction of the Company, withdraw from
the Capital Account or the Investment Account maintained within
the Construction Fund in respect of such series of Bonds, or
both, and deposit into the Bond Fund amounts in the aggregate not
exceeding the aggregate principal amount of, and accrued interest
on, the Bonds of such series so to be redeemed, with advice to
the Countyand the Company of such action, such withdrawals and
deposits to be made on the date specified in such direction.
Section 606. Redemption Upon Taxability of Interest.
In the event that Bonds of any series are to be redeemed pursuant
to Section 301(b) hereof, or any similar provision contained in
any supplemental indenture, the Trustee shall, at the direction
of the Company, withdraw from the Capital Account or the
Investment Account maintained within the Construction Fund in
respect of such series of Bonds, or both, and deposit into the
Bond Fund amounts in the aggregate not exceeding the aggregate
principal amount of, and accrued interest on, the Bonds so to be
redeemed, with advice to the County and the Company of such
action, such withdrawals and deposits to be made on the date
specified in such direction.
Section 607. Acceleration of Bonds. In the event that
the principal of the Bonds shall have become due and payable
pursuant to Section 1002 hereof, the Trustee may, and at the
direction of the holders of twenty-five percent (25%) in
aggregate principal amount of Bonds outstanding hereunder, shall
deposit into the Bond Fund all amounts remaining in the
Construction Fund, with advice to the County and the Company of
such action.
Section 608. Refunding of Bonds. In the event that
all outstanding Bonds of any series are paid, redeemed or deemed
to have been paid within the meaning of Article IX hereof by
reason of the application of the proceeds of the sale of any
obligations issued by the County under an indenture other than
this Indenture, the Trustee shall, at the direction of the
Company, withdraw all amounts remaining in the Capital Account
and the Investment Account maintained within the Construction
Fund in respect of such series of Bonds and deposit such amounts
into corresponding accounts in the construction, acquisition or
other similar fund created under the indenture under which such
obligations of the County are issued, with advice to the County
and the Company of such action, such withdrawals and deposits to
be made, in accordance with the provisions of such indenture, on
the date on which such Bonds are so paid, redeemed or deemed to
have been paid.
ARTICLE VII
INVESTMENTS
Section 701. Investment of Moneys. (a) Moneys held
for the credit of the Construction Fund shall, upon direction by
the Authorized Company Representative, be invested and reinvested
by the Trustee in any one or more of the following obligations or
securities on which neither the Company nor any of its
subsidiaries is the obligor: (i) Government Securities; (ii)
interest bearing deposit accounts (which may be represented by
certificates of deposit) in national or state banks (which may
include the Trustee, any Paying Agent, and the Bond Registrar)
having a combined capital and surplus of not less than
$10,000,000, or savings and loan associations having total assets
of not less than $40,000,000; (iii) bankers' acceptances drawn on
and accepted by commercial banks (which may include the Trustee,
any Paying Agent, and the Bond Registrar) having a combined
capital and surplus of not less than $10,000,000; (iv) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, any State of the United
States of America, the District of Columbia or the Commonwealth
of Puerto Rico, or any political subdivision of any of the
foregoing, which are rated in any of the three highest rating
categories by a nationally recognized rating agency; (v)
obligations of any agency or instrumentality of the United States
of America; (vi) commercial or finance company paper which is
rated in any of the three highest rating categories by a
nationally recognized rating agency; (vii) corporate debt
securities rated in any of the three highest rating categories by
a nationally recognized rating agency; and (viii) repurchase
agreements with banking or financial institutions having a
combined capital and surplus of not less than $10,000,000 (which
may include the Trustee, any Paying Agent, and the Bond
Registrar) with respect to any of the foregoing obligations or
securities. As used above, the reference to rating categories
shall mean generic categories which may include numerical or
other qualifications of ratings within each such generic rating
category such as "+" or "-". Such investments shall have
maturity dates, or shall be subject to redemption by the holder
at the option of the holder, on or prior to the dates the moneys
invested therein will be needed as reflected by a statement of
the Authorized Company Representative which statement must be on
file with the Trustee prior to any investment.
(b) Moneys held for the credit of any other fund or
account, including, without limitation, the Bond Fund, shall to
the extent practicable be invested and reinvested in Government
Securities which will mature, or which will be subject to
redemption at the option of the holder, not later than the date
or dates on which the money held for credit of the particular
fund shall be required for the purposes intended. The Trustee
shall soinvest and reinvest pursuant to instructions from the
Authorized Company Representative.
(c) Obligations so purchased as an investment of
moneys in any fund or account shall be deemed at all times a part
of such fund or account. Subject to the provisions of Section
602 hereof, any profit and income realized from such investments
shall be credited to the fund or account and any loss shall be
charged to the fund or account.
Section 702. Arbitrage Law Requirements. In
compliance with the provisions of Section 148 of the Code and
regulations thereunder, all investments and reinvestments made
under this Article VII shall be subject to the following:
(a) In the event that the County or the Company is of
the opinion that it is necessary or advisable to restrict or
limit the yield on the investment of any moneys held in the
Construction Fund, the Bond Fund or any other fund in order to
avoid the Bonds being considered "arbitrage bonds" within the
meaning of Section 148 of the Code, or any proposed, temporary or
final regulations thereunder as such regulations may apply to
obligations issued as of the date of original issuance and
delivery of the Bonds, the County or the Company may issue to the
Trustee a written certificate to such effect together with
appropriate written instructions, in which event the Trustee
shall take such action as is necessary so as to restrict or limit
the yield on such investment in accordance with such certificate
and instructions, irrespective of whether the Trustee shares such
opinion.
(b) The Trustee shall establish and maintain within
the Bond Fund, the Construction Fund or any other fund, in
respect of each series of Bonds issued hereunder, a separate
account into which shall be deposited as and when received any
amounts which are subject or could be subject to rebate to the
United States under Section 148(f)(6) of the Code, which amounts
shall be held in such separate accounts until paid to the United
States pursuant to said Section or until the Trustee determines
that no such payment is required. Moneys in such separate
account within the Construction Fund shall be subject to prior
withdrawal to pay the Cost of Construction in accordance with the
provisions of the Sale Agreement; provided, however, that no
withdrawal shall be permitted unless and until (i) all other
moneys in the Construction Fund, together with any other moneys
constituting gross proceeds (within the meaning of Section 148(f)
of the Code) have first been so used within six (6) months of the
date of issuance of the Bonds as provided in Section 148(f)(4)(B)
of the Code, or (ii) the Company shall furnish an opinion of Bond
Counsel to the Trustee to the effect that such moneys will not be
subject to rebate to the United States under Section 148(f) of
the Code and regulations thereunder.
(c) The County and the Trustee shall not make or agree
to make any payments or participate in any non-arms-length
transaction which would have the effect of reducing the earnings
on investments, thereby reducing the amount required to be
rebated to the United States under Section 148(f) of the Code and
regulations thereunder.
(d) The Company has undertaken in the Sale Agreement
to make the determinations required by paragraph (b) of this
Section 702 and to provide statements to the Trustee to the
effect that all actions with respect to the Bonds required by
Section 148(f) of the Code has been taken. The Trustee shall be
entitled to rely upon such determinations and statements as
sufficient evidence of the facts therein contained.
ARTICLE VIII
RIGHTS OF THE COMPANY
Section 801. Rights of Company Under Sale Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Sale Agreement and an
Event of Default hereunder shall not constitute an "Event of
Default" under the Sale Agreement unless by the terms of the Sale
Agreement it constitutes an "Event of Default" thereunder.
Section 802. Enforcement of Rights and Obligations.
The County and the Trustee agree that the Company in its own name
or in the name of the County may enforce all of the rights of the
County, all obligations of the Trustee, and all of the Company's
rights provided for in this Indenture.
ARTICLE IX
DISCHARGE OF LIEN
Section 901. Discharge of Lien. If the County shall
pay or cause to be paid to the holders and owners of the Bonds
the principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the County shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it on its part
and shall pay or cause to be paid all other sums payable
hereunder by the County, then these presents and the estate and
rights hereby granted shall cease, determine and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the County such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the County the estate hereby conveyed, and assign and
deliver to the County any property at the time subject to the
lien of this Indenture which may then be in its possession,
except moneys or Government Securities held by it for the payment
of the principal of and premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning
of this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that
the Trustee shall have received an opinion of Bond Counsel to the
effect that such deposit will not affect the exclusion of the
interest on any of the Bonds from gross income for purposes of
federal income taxation or cause any of the Bonds to be treated
as arbitrage bonds within the meaning of Section 148(a) of the
Code) maturing as to principal and interest in such amounts and
at such times as will provide sufficient moneys to make such
payment when due, and all necessary and proper fees, compensation
and expenses of the Trustee and any Paying Agent pertaining to
the Bonds with respect to which such deposit is made and all
other liabilities of the Company under the Sale Agreement shall
have been paid or the payment thereof provided for to the
satisfaction of the Trustee. No deposit under (b) above shall
constitute such discharge and satisfaction until the Company
shall have irrevocably notified the Trustee of the date for
payment of such Bond either at maturity or on a date on which
such Bond may be redeemed in accordance with the provisions
hereof and notice of such redemption shall have been given or
irrevocable provisions shall have been made for the giving of
such notice.
The County or the Company may at any time surrender to
the Trustee for cancellation by it any Bonds previously
authenticated and delivered hereunder, which the County or the
Company may have acquired in any manner whatsoever, and such
Bonds, upon such surrender and cancellation, shall be deemed to
be paid and retired.
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 1001. Events of Default. Each of the
following events shall constitute and is referred to in this
Indenture as an "Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured and
outstanding, whether at the stated maturity thereof, or upon
unconditional proceedings for redemption thereof, or upon the
maturity thereof by acceleration;
(c) an "Event of Default" as such term is defined in
Section 8.01(a) of the Sale Agreement; or
(d) default in the payment of any other amount
required to be paid under this Indenture or the performance or
observance of any other of the covenants, agreements or
conditions contained in this Indenture, or in the Bonds issued
under this Indenture, and continuance thereof for a period of
ninety (90) days after written notice specifying such failure and
requesting that it be remedied, shall have been given to the
County and the Company by the Trustee, which may give such notice
in its discretion and shall give such notice at the written
request of Bondholders of not less than 10% in aggregate
principal amount of the Bonds then outstanding, unless the
Trustee, or the Trustee and bondholders of an aggregate principal
amount of Bonds not less than the aggregate principal amount of
Bonds the bondholders of which requested such notice, as the case
may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or
the Trustee and the bondholders of such principal amount of
Bonds, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is instituted by
the County, or the Company on behalf of the County within such
period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (d)
above shall mean default by the County in the performance or
observance of any of the covenants, agreements or conditions on
its part contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
Section 1002. Acceleration. Upon the occurrence and
continuance of an Event of Default described in clause (a) or
(b)of the first paragraph of Section 1001 hereof, the Bonds
shall, without further action, become and be immediately due and
payable, anything in this Indenture or in the Bonds to the
contrary notwithstanding, and the Trustee shall give notice
thereof in writing to the County and the Company, and notice to
bondholders in the same manner as a notice of redemption under
Section 302 hereof.
Upon the occurrence and continuance of an Event of
Default described in clause (c) of the first paragraph of Section
1001 hereof, and further upon the condition that, in accordance
with the terms of the Company Mortgage, the First Mortgage Bonds
shall have become immediately due and payable pursuant to any
provision of the Company Mortgage, the Bonds shall, without
further action, become and be immediately due and payable,
anything in this Indenture or in the Bonds to the contrary
notwithstanding, and the Trustee shall give notice thereof in
writing to the County and the Company, and notice to bondholders
in the same manner as a notice of redemption under Section 302
hereof.
Section 1003. Other Remedies; Rights of Bondholders.
Upon the occurrence and continuance of an Event of Default, the
Trustee may, in addition or as an alternative, pursue any
available remedy by suit at law or in equity to enforce the
payment of the principal of and premium, if any, and interest on
the Bonds then outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it
shall have been requested so to do by the holders of twenty-five
percent (25%) in aggregate principal amount of Bonds outstanding
hereunder and shall have been indemnified as provided in Section
1101 hereof, the Trustee shall be obligated to exercise such one
or more of the rights and powers conferred upon it by this
Section as the Trustee, being advised by counsel, shall deem most
expedient in the interests of the bondholders.
No remedy by the terms of this Indenture conferred upon
or reserved to the Trustee (or to the bondholders) is intended to
be exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power
accruing upon any default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any
such default or Event of Default or acquiescence therein; and
every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the bondholders, shall extend to
orshall affect any subsequent default or Event of Default or
shall impair any rights or remedies consequent thereon.
Section 1004. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding the holders of a majority in aggregate principal
amount of Bonds outstanding hereunder shall have the right, at
any time, by an instrument or instruments in writing executed and
delivered to the Trustee, to direct the method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture, or for
the appointment of a receiver or any other proceeding hereunder;
provided that such direction shall not be otherwise than in
accordance with the provisions of law and of this Indenture.
Section 1005. Appointment of Receiver. Upon the
occurrence and continuance of an Event of Default, and upon the
filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the bondholders under
this Indenture, the Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the Trust
Estate and of the tolls, rents, revenues, issues, earnings,
income, products and profits thereof, pending such proceedings
with such powers as the court making such appointment shall
confer.
Section 1006. Waiver. In case of an Event of Default
on the part of the County, as aforesaid, to the extent that such
rights may then lawfully be waived, neither the County nor anyone
claiming through it or under it shall or will set up, claim, or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Indenture, but the
County, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State of Arkansas.
Section 1007. Application of Moneys. Available moneys
remaining after discharge of costs, charges and liens prior to
this Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled thereto
of all installments of interest then due, in the order of the
maturity of the installments of such interest, and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the
amounts due on such installment, to the persons entitled thereto,
without any discrimination or privilege;
Second: To the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds which shall have
become due (other than Bonds called for redemption for the
payment of which moneys are held pursuant to the provisions of
this Indenture), in the order of their due dates, with interest
on such Bonds from the respective dates upon which they become
due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the amount of
principal due on such date, to the persons entitled thereto
without any discrimination or privilege of any Bond over any
other Bond and without preference or priority of principal over
interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of Bonds, all in
accordance with the provisions of Article V of this Indenture.
(b) If the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid upon
the Bonds, without preference or priority of principal over
interest or of interest over principal, or of any Bond over any
other Bond, ratably, according to the amounts due respectively
for principal and interest, to the person entitled thereto
without discrimination or privilege.
(c) If the principal of all the Bonds shall have
become due and payable, and if acceleration of the maturity of
the Bonds by reason of an Event of Default shall thereafter have
been rescinded and annulled under the provisions of this Article
then, subject to the provisions of paragraph (b) of this Section
in the event that the principal of all the Bonds shall later
become due and payable, the moneys shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee
pursuant to the provisions of this Section, such moneys shall be
applied by it at such times, and from time to time, as it shall
determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys
becoming available for such application in the future. Whenever
the Trustee shall apply such funds, it shall fix the date (which
shall be an interest payment date unless it shall deem another
date more suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be paid on
such dates shall cease to accrue. The Trustee shall give such
notice as it may deem appropriate of the deposit with it of any
such moneys and of the fixing of any such date and shall not be
required to make payment to the holder of any Bond until such
Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid.
Section 1008. Remedies Vested in Trustee. All rights
of action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto and any such suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds
hereby secured, and any recovery of judgment shall be for the
equal benefit of the holders of the outstanding Bonds.
Section 1009. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any suit,
action or proceeding in equity or at law for the enforcement of
this Indenture or for the execution of any trust hereof or for
the appointment of a receiver or any other remedy hereunder,
unless a default has occurred of which the Trustee has been
notified as provided in subsection (g) of Section 1101, or of
which by said subsection it is deemed to have notice, nor unless
such default shall have become an Event of Default and the
holders of twenty-five percent (25%) in aggregate principal
amount of Bonds outstanding hereunder shall have made written
request to the Trustee and shall have offered it reasonable
opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in its
own name, nor unless also they have offered to the Trustee
indemnity as provided in Section 1101 nor unless the Trustee
shall thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request and
offer of indemnity are hereby declared in every such case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more holders of the
Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by his or their
action or to enforce any right hereunder except in the manner
herein provided, and that all proceedings at law or in equity
shall be instituted, held and maintained in the manner herein
provided for the equal benefit of the holders of all Bonds
outstanding hereunder. Nothing in this Indenture contained
shall, however, affect or impair the right of any bondholders to
enforce the payment of the principal of and interest on any Bonds
at and after the maturity thereof, or the obligation of the
County to pay the principal of and interest on each of the Bonds
issued hereunder to the respective holders thereof at the time
and place in said Bonds expressed.
Section 1010. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver or otherwise, and
suchproceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee,
then and in every such case the County and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the property herein conveyed, and all rights, remedies
and powers of the Trustee shall continue as if no such
proceedings had been taken, except to the extent the Trustee is
legally bound by such adverse determination.
Section 1011. Waivers of Events of Default. The
provisions of Article X are subject to the condition that any
waiver of any "Default" under the Company Mortgage and a
rescission and annulment of its consequences shall constitute a
waiver of the corresponding Event or Events of Default under
clause (c) of the first paragraph of Section 1001 hereof and a
rescission and annulment of the consequences thereof, but no such
waiver, rescission and annulment shall extend to or affect any
subsequent Event of Default or impair any right or remedy
consequent thereon.
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
Section 1101. Acceptance of Trusts. The Trustee
hereby accepts the trust imposed upon it by this Indenture, and
agrees to perform said trust (i) except during the continuance of
an Event of Default as an ordinarily prudent trustee under a
corporate mortgage, and (ii) during the continuance of an Event
of Default, with the same degree of care and skill in the
exercise of its rights hereunder as a prudent man would exercise
or use under the circumstances in the conduct of his affairs, but
only upon and subject to the following expressed terms and
conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or through
attorneys, agents, receivers or employees, and shall be entitled
to advice of counsel concerning all matters of trusts hereof and
its duties hereunder, and may in all cases pay reasonable
compensation to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection with the
trusts hereof. The Trustee may act upon the opinion or advice of
any attorney, surveyor, engineer or accountant selected by it in
the exercise of reasonable care, or, if selected or retained by
the County prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (g) of this
Section 1101, or of which by said subsection the Trustee is
deemed to have notice, approved by the Trustee in the exercise of
such care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance with
any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any insurance
moneys, or for the validity of the execution by the County of
this Indenture or of any supplemental indentures or instrument of
further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby, or for
the value of the title of the property herein conveyed or
otherwise as to the maintenance of the security hereof; except
that in the event the Trustee enters into possession of a part or
all of the property herein conveyed pursuant to any provision of
this Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions and agreements aforesaid as to the condition of the
property herein conveyed.
(c) The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it, in the
exercise of reasonable care, to be genuine and correct and to
have been signed or sent by the proper person or persons. Any
action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of the owner of any Bond secured
hereby, shall be conclusive and binding upon all future owners of
the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee shall be entitled to rely upon a
certificate of the County signed by its County Judge and attested
by the Clerk of the County, as sufficient evidence of the facts
therein contained and prior to the occurrence of a default of
which it has been notified as provided in subsection (g) of this
Section 1101, or of which by that subsection it is deemed to have
notice, and shall also be at liberty to accept a similar
certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its
discretion, at the reasonable expense of the County, in every
case secure such further evidence as it may think necessary or
advisable but shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Clerk of the County under
its seal to the effect that a resolution or ordinance in the form
therein set forth has been adopted by the County as conclusive
evidence that such resolution or ordinance has been duly adopted,
and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty of
the Trustee.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except a
default under clause (a) or (b) of the first paragraph of
Section 1001 hereof concerning which the Trustee shall be deemed
to have notice) unless the Trustee shall be specifically notified
in writing of such default by the County or by the holders of at
least ten percent (10%) in aggregate principal amount of Bonds
outstanding hereunder and all notices or other instruments
required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered to the office of the
Trustee, and in the absence of such notice so delivered, the
Trustee may conclusively assume there is no such default except
as aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfillment
of contracts during any period in which it may be in the
possession of ormanaging the real and tangible personal property
as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to
inspect any and all of the property herein conveyed, including
all books, papers and records of the County pertaining to the
Facilities and the Bonds, and to take such memoranda from and in
regard thereto as may be desired, provided, however, that nothing
contained in this subsection or in any other provision of this
Indenture shall be construed to entitle the above named persons
to any information or inspection involving the confidential
know-how of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals, or
other information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, deemed desirable for the purpose of
establishing the right of the County to the authentication of any
Bonds, the withdrawal of any cash, the release of any property,
or the taking of any other action by the Trustee.
(l) Before taking such action hereunder, the Trustee
may require that it be furnished an indemnity bond satisfactory
to it for the reimbursement to it of all expenses to which it may
be put and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so taken
by the Trustee.
Section 1102. Fees, Charges and Expenses of Trustee
and Paying Agents. The Trustee and any Paying Agent shall be
entitled to payment and/or reimbursement for reasonable fees for
services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred in and
about the execution of the trusts created by this Indenture. The
County has made provisions in the Sale Agreement for the payment
of such Administration Expenses and reference is hereby made to
the Sale Agreement for the provisions so made. In this regard,
it is understood that the County pledges no funds or revenues
other than those derived from and the avails of the Trust Estate
to the payment of any obligation of the County set forth in this
Indenture, including the obligations set forth in this Section
1102, but nothing herein shall be construed as prohibiting
theCounty from using any other funds and revenues for the payment
of any of its obligations under this Indenture. Upon an Event of
Default, but only upon an Event of Default, the Trustee and the
Paying Agents shall have a first lien with right of payment prior
to payment on account of principal or interest of any Bond issued
hereunder upon the Trust Estate for such reasonable and necessary
advances, fees, costs and expenses incurred by them respectively.
Section 1103. Notice to Bondholders of Default. The
Trustee shall be required to make demand upon and give notice to
the Company and each registered owner of Bonds then outstanding
as follows:
(a) If the Company shall fail to make any installment
payment under the Sale Agreement on the day such payment is due
and payable, the Trustee shall give notice to and make demand
upon the Company on the next succeeding business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 1101(g) deemed to have or
is given notice, the Trustee shall promptly give notice to the
Company and to bondholders.
Section 1104. Intervention by Trustee. In any
judicial proceeding to which the County is a party and which in
the opinion of the Trustee and its counsel has a substantial
bearing on the interests of holders of Bonds issued hereunder,
the Trustee may intervene on behalf of bondholders and shall do
so if requested in writing by the holders of at least ten percent
(10%) of the aggregate principal amount of Bonds outstanding
hereunder. The rights and obligations of the Trustee under this
Section 1104 are subject to the approval of the court having
jurisdiction in the premises.
Section 1105. Merger or Consolidation of Trustee. Any
bank or trust company to which the Trustee may be merged, or with
which it may be consolidated, or to which it may sell or transfer
its trust business and assets as a whole or substantially as a
whole, or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which it is a party, ipso
facto, shall be and become successor trustee hereunder and vested
with all of the title to the whole property or Trust Estate and
all the trusts, powers, discretions, immunities, privileges, and
all other matters as was its predecessor, without the execution
or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that
such successor trustee shall have capital and surplus of at least
$10,000,000.
Section 1106. Resignation by Trustee. The Trustee and
any successor trustee may at any time resign from the trusts
hereby created by giving thirty (30) days written notice to the
County andto the Company, and such resignation shall take effect
at the end of such thirty (30) days, or upon the earlier
appointment of a successor trustee by the bondholders or by the
County. Such notice may be served personally or sent by
registered mail.
Section 1107. Removal of Trustee. The Trustee may be
removed at any time by an instrument or concurrent instruments in
writing delivered to the Trustee and to the County, and signed by
the holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
Section 1108. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable of acting hereunder, or in case it
shall be taken under the control of any public officer or
officers, or of a receiver appointed by the court, a successor
may be appointed by the holders of a majority in aggregate
principal amount of Bonds outstanding hereunder, by an instrument
or concurrent instruments in writing signed by such holders, or
by their attorneys in fact, duly authorized; provided,
nevertheless, that in case of such vacancy the County by an
instrument executed and signed by its County Judge and attested
by its Clerk under its seal, shall appoint a temporary trustee to
fill such vacancy until a successor trustee shall be appointed by
the bondholders in the manner above provided; and any such
temporary trustee so appointed by the County shall immediately
and without further act be superseded by the trustee so appointed
by such bondholders. Every such temporary trustee and every such
successor trustee shall be a trust company or bank in good
standing, having capital and surplus of not less than
$10,000,000.
Section 1109. Concerning Any Successor Trustee. Every
successor or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the County
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the County or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the County be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the County. The
resignation of any trustee and the instrument or
instrumentsremoving any trustee and appointing a successor
hereunder, together with all other instruments provided for in
this Article shall, at the expense of the County, be forthwith
filed and/or recorded by the successor trustee in each recording
office where the Indenture shall have been filed and/or recorded.
Section 1110. Reliance Upon Instruments. The
resolutions, opinions, certificates and other instruments
provided for in this Indenture may be accepted and relied upon by
the Trustee as conclusive evidence of the facts and conclusions
stated therein and shall be full warrant, protection and
authority to the Trustee for its actions taken hereunder.
Section 1111. Appointment of Co-Trustee. The County
and the Trustee shall have power to appoint and upon the request
of the Trustee the County shall for such purpose join with the
Trustee in the execution of all instruments necessary or proper
to appoint another corporation or one or more persons approved by
the Trustee, and satisfactory to the Company so long as there is
no termination of the interest of the Company by virtue of an
event of default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the County shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the County be required
by separate trustee or co-trustee so appointed for more fully and
certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
County. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and
delivered, and all powers, duties, obligations and
rights conferred upon the Trustee in respect of
the custody of all money and securities pledged or
deposited hereunder, shall be exercised solely by
the Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or
co-trustee.
Every instrument, other than this Indenture, appointing
any such co-trustee or separate trustee, shall refer to this
Indenture and the conditions of this Article XI expressed, and
upon the acceptance in writing by such separate trustee or
co-trustee, he, they or it shall be vested with the estate or
property specified in such instrument, jointly with the Trustee
(except insofar as local law makes it necessary for any separate
trustee to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
Section 1112. Designation and Succession of Paying
Agents. The Trustee and any other banks or trust companies, if
any, designated as Paying Agent or Paying Agents in any
supplemental indenture providing for the issuance of Additional
Bonds as provided in Section 211 hereof or in an instrument
appointing a successor Trustee, shall be the Paying Agent or
Paying Agents for the applicable series of Bonds.
Any bank or trust company with which or into which any
Paying Agent may be merged or consolidated, or to which the
assets and business of such Paying Agent may be sold, shall be
deemed the successor of such Paying Agent for the purposes of
this Indenture. If the position of Paying Agent shall become
vacant for any reason, the County shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the County shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective
provisions in the performance of their duties hereunder as are
specified in Section 1101 hereof with respect to the Trustee
insofar as such provisions may be applicable.
Section 1113. Several Capacities. Anything in this
Indenture to the contrary notwithstanding, the same entity may
serve hereunder as the Trustee, the Paying Agent, and the Bond
Registrar and in any other combination of such capacities, to the
extent permitted by law.
ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without
Bondholder Consent. The County and the Trustee may, from time to
time and at any time, without the consent of or notice to the
bondholders, enter into supplemental indentures as follows:
(a) to cure any formal defect, omission,
inconsistency or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the
Trustee for the benefit of the bondholders any
additional rights, remedies, powers, authority,
security, liabilities or duties which may lawfully be
granted, conferred or imposed and which are not
contrary to or inconsistent with this Indenture as
theretofore in effect, provided that no such additional
liabilities or duties shall be imposed upon the Trustee
without its consent;
(c) to add to the covenants and agreements of,
and limitations and restrictions upon, the County in
this Indenture other covenants, agreements, limitations
and restrictions to be observed by the County which are
not contrary to or inconsistent with this Indenture as
theretofore in effect;
(d) to confirm, as further assurance, any pledge
under, and the subjection to any claim, lien or pledge
created or to be created by, this Indenture, of the
Revenues of the County from the Sale Agreement or of
any other moneys, securities or funds;
(e) to authorize the issuance and sale of one or
more series of Additional Bonds;
(f) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(g) to provide for the registration and
registration of transfer of the Bonds through a
book-entry or similar method, whether or not the Bonds
are evidenced by certificates; or
(h) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the bondholders and which does not involve a
change described in clause (a), (b), (c), (d), (e) or
(f) of Section 1202 hereof and which, in the judgment
of the Trustee, is not to the prejudice of the Trustee.
Section 1202. Supplemental Indentures Requiring
Bondholder Consent. Subject to the terms and provisions
contained in this Section, and not otherwise, the holders of not
less than a majority in aggregate principal amount of the Bonds
then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the
County and the Trustee of such indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by
the County for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental
indenture; provided, however, that nothing herein contained shall
permit, or be construed as permitting, unless approved by the
holders of all Bonds then outstanding (a) an extension of the
maturity (or mandatory sinking fund or other mandatory redemption
date) of the principal of or the interest on any Bond issued
hereunder, or (b) a reduction in the principal amount of or
redemption premium or rate of interest on any Bond issued
hereunder, or (c) the creation of any lien ranking prior to or on
a parity with the lien of this Indenture on the Trust Estate or
any part thereof, except as hereinbefore expressly permitted, or
(d) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds, or (e) a reduction in the aggregate principal
amount of the Bonds required for consent to such supplemental
indenture, or (f) depriving the holder of any Bond then
outstanding of the lien hereby created on the Trust Estate.
Nothing herein contained, however, shall be construed as making
necessary the approval of bondholders of the execution of any
supplemental indenture as provided in Section 1201 of this
Article.
If, at any time the County shall request the Trustee to
enter into any supplemental indenture for any of the purposes of
this Section, the Trustee shall, at the expense of the County,
cause notice of the proposed execution of such supplemental
indenture to be mailed by first class mail to each registered
owner of the Bonds. Such notice shall briefly set forth the
nature of the proposed supplemental indenture and shall state
that copies thereof are on file at the principal corporate trust
office of the Trustee for inspection by bondholders. The Trustee
shall not, however, be subject to any liability to any bondholder
by reason of its failure to mail such notice, and any such
failure shall not affect the validity of such supplemental
indenture when consented to and approved as provided in this
Section. If the holders of not less than a majority in aggregate
principal amount of the Bonds outstanding at the time of the
execution of any such supplemental indenture shall have consented
to and approved the execution thereof as herein provided, no
holder of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution
thereof, or to enjoin or restrain the Trustee or the County from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution ofany such supplemental
indenture, this Indenture shall be deemed to be modified and
amended in accordance therewith.
Section 1203. Consent of Company. Anything herein to
the contrary notwithstanding, a supplemental indenture under this
Article XII shall not become effective unless and until the
Company shall have consented to the execution and delivery of
such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
Section 1204. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, a supplemental indenture
under this Article XII shall not become effective unless and
until the Trustee shall have received an opinion of Bond Counsel
to the effect that such supplemental indenture will not affect
the exclusion of interest on the Bonds from gross income for
purposes of federal income taxation.
ARTICLE XIII
AMENDMENT TO SALE AGREEMENT
Section 1301. Amendments Not Requiring Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Sale
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein, which in
the reasonable judgment of the Trustee is not to the prejudice of
the Trustee or the holders of the Bonds. The Trustee shall not
consent to any other amendment, change or modification of the
Sale Agreement without the approval or consent of the holders of
not less than a majority in aggregate principal amount of the
Bonds at the time outstanding, evidenced in the manner provided
in Section 1401 hereof; provided the Trustee shall not, without
the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 1401
hereof, consent to any amendment which would change the
obligations of the Company under Section 5.02 or 5.03 of the Sale
Agreement or the nature of the obligations of the Company on the
First Mortgage Bonds as provided in Section 5.03 of the Sale
Agreement.
Section 1302. Amendments Requiring Consent of
Bondholders. If at any time the County or the Company shall
request the Trustee's consent to a proposed amendment, change or
modification requiring bondholder approval under Section 1301,
the Trustee, shall, at the expense of the requesting party, cause
notice of such proposed amendment, change or modification to the
Sale Agreement to be mailed in the same manner as provided by
Section 1202 hereof with respect to supplemental indentures.
Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of
the instrument embodying the same are on file in the principal
office of the Trustee for inspection by any interested
bondholder. The Trustee shall not, however, be subject to any
liability to any bondholder by reason of its failure to publish
or mail such notice, and any such failure shall not affect the
validity of such amendment, change or modification when consented
to by the Trustee in the manner hereinabove provided.
Section 1303. Opinion of Bond Counsel. Anything
herein to the contrary notwithstanding, any amendment to the Sale
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
ARTICLE XIV
MISCELLANEOUS
Section 1401. Consents, etc. of Bondholders. Any
request, direction, objection or other instrument required by
this Indenture to be signed and executed by the bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds,
if made in the following manner, shall be sufficient for any of
the purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under such
request or other instrument, namely:
(a) The fact and date of the execution by any person
of any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person signing
such writing acknowledged before him the execution thereof, or by
an affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and the
date of holding the same shall be proved by the registration
books of the County maintained by the Trustee as Bond Registrar.
Section 1402. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing expressed
or mentioned in or to be implied from this Indenture, or the
Bonds issued hereunder, is intended or shall be construed to give
to any person or company other than the parties hereto, the
Company, and the holders of the Bonds secured by this Indenture
any legal or equitable rights, remedy or claim under or in
respect to this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the
covenants, conditions and provisions hereof being intended to be
and being for the sole exclusive benefit of the parties hereto,
the Company, and the holders of the Bonds hereby secured as
herein provided.
Section 1403. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other
provision or provisionsherein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
Section 1404. Notices. Except as otherwise provided
in this Indenture, all notices, certificates or other
communications shall be sufficiently given and shall be deemed
given when mailed by registered or certified mail, postage
prepaid, to the County, the Company, the Trustee and any Paying
Agent. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Arkansas Power & Light Company
P.O. Box 551
Little Rock, Arkansas 72203
Attention: Treasurer
County: ___________ County, Arkansas
___________ County Courthouse
____________, Arkansas ______
Attention: County Judge
Trustee: ______________________________
______________________________
______________________________
Attention: Corporate Trust Department
Any Paying
Agent other
than the
Trustee: At the address designated to the
County and the Trustee.
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 1405. Applicable Provisions of Law. This
Indenture shall be considered to have been executed in the State
of Arkansas and it is the intention of the parties that the
substantive law of the State of Arkansas govern as to all
questions of interpretation, validity and effect.
Section 1406. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
Section 1407. Successors and Assigns. All the
covenants, stipulations, provisions, agreements, rights, remedies
and claims of the parties hereto in this Indenture contained
shall bind and inure to the benefit of their successors and
assigns.
Section 1408. Captions. The captions or headings in
this Indenture are for convenience only and in no way define,
limit or describe the scope or intent of any provisions or
sections of this Indenture.
Section 1409. Photocopies and Reproductions. A
photocopy or other reproduction of this Indenture may be filed as
a financing statement pursuant to the Uniform Commercial Code,
although the signatures of the County and the Trustee on such
reproduction are not original manual signatures.
Section 1410. Bonds Owned by the County or the
Company. In determining whether bondholders of the requisite
aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which
are owned by the County or the Company or by any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and
deemed not to be outstanding for the purpose of any such
determination, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Bonds which the Trustee knows
are so owned shall be so disregarded. Bonds so owned which have
been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the
pledgee is not the County or the Company or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company. In case of a dispute
as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
Section 1411. Holidays. If the date for making any
payment or the last date for performance of any act or the
exercising of any right, as provided in this Indenture, shall be
a legal holiday or a day on which banking institutions in the
city in which is located the principal corporate trust office of
the Trustee are authorized by law to remain closed, such payment
may be made or act performed or right exercised on the next
succeeding day not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the
same force and effect as if done on the nominal date provided in
this Indenture, and no interest shall accrue for the period after
such nominal date.
IN WITNESS WHEREOF, the County has caused these
presents to be signed in its name and behalf by its County Judge
and its corporate seal to be hereunto affixed and attested by its
County Clerk, and, to evidence its acceptance of the trust hereby
created, the Trustee has caused these presents to be signed in
its behalf by its Executive Vice President and Trust Officer and
its corporate seal to be hereto affixed and attested by its
Corporate Trust Officer.
___________ COUNTY, ARKANSAS
By ___________________________
ATTEST: County Judge
_______________________________
County Clerk
(SEAL)
________________________________
________________________________
TRUSTEE
By _____________________________
Executive Vice President and
Trust Officer
ATTEST:
______________________________
Corporate Trust Officer
(SEAL)
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)
COUNTY OF _________ )
On this ____ day of _______, ____, before me, a Notary
Public duly commissioned, qualified and acting within and for the
State and County aforesaid, appeared in person the within named
_________________ and _______________, County Judge and County
Clerk, respectively, of _________ County, Arkansas, to me
personally well known, who stated that they were duly authorized
in their respective capacities to execute the foregoing
instrument for and in the name of the municipality, and further
stated and acknowledged that they had signed, executed and
delivered the foregoing instrument for the consideration, uses
and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this ____ day of _______, ____.
________________________________
Notary Public
My Commission expires:
______________________
(SEAL)
ACKNOWLEDGMENT
STATE OF __________ )
)
COUNTY OF _________ )
On this ____ day of _______, ____, before me, a Notary
Public duly commissioned, qualified and acting within and for the
State and County aforesaid, appeared in person the within named
________________ and _________________, ________________________
and _______________________________, respectively, of
_____________ _______________________, __________, ________, to
me personally well known, who stated that they were duly
authorized in their respective capacities to execute the
foregoing instrument for and in the name and behalf of the Bank,
and further stated and acknowledged that they had so signed,
executed and delivered the foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
official seal this ______ day of _______, ____.
________________________________
Notary Public
My Commission expires:
______________________
(SEAL)
EXHIBIT A
Form of Series ____ Bond
No. ____ $_______
UNITED STATES OF AMERICA
STATE OF ARKANSAS
_________ COUNTY, ARKANSAS
POLLUTION CONTROL REVENUE REFUNDING BOND, SERIES ____
(ARKANSAS POWER & LIGHT COMPANY PROJECT)
Date of Bond: _________ Maturity Date: _______ 1, ____
Interest Rate: _% per annum CUSIP _________
Registered Owner: _________________________________________________
Principal Amount: _________________________________________ DOLLARS
KNOW ALL MEN BY THESE PRESENTS:
That _________ County, Arkansas, a political
subdivision under the Constitution and laws of the State of
Arkansas (the "County"), for value received, promises to pay to
the registered owner shown above, or registered assigns, but
solely from the source and in the manner hereinafter set forth,
on the maturity date shown above, the principal amount shown
above and in like manner to pay interest on said amount from the
date hereof shown above until such principal amount becomes due
and payable, at the rate per annum shown above, semiannually on
_______ 1 and ____ 1 of each year commencing on the _______ 1 or
____ 1 next succeeding the date of this Bond, and to pay interest
on overdue principal at the rate of ___ percent (_%) per annum
until paid, except as the provisions hereinafter set forth with
respect to redemption of this Bond prior to maturity may become
applicable hereto. The principal of and premium, if any, on this
Bond are payable in lawful money of the United States of America
upon the presentation and surrender hereof at the principal
corporate trust office of _____________
___________________________, __________, ________, or its
successor or successors, as Trustee (the "Trustee"), and interest
on this Bond is payable in like money to the registered owner
hereof by check drawn upon the Trustee and mailed to the person
in whose name this Bond is registered at the close of business on
the fifteenth day of the calendar month next preceding such
interest payment date, at his address as it appears on the bond
registration books of the County kept by the Trustee.
This Bond, designated "________ County, Arkansas
Pollution Control Revenue Refunding Bond, Series ____ (Arkansas
Power & Light Company Project)," is one of a series of Bonds in
the aggregate principal amount of ___________________ Dollars
($__________) (the "Bonds"), issued for the purpose of financing
the cost of acquiring, constructing and equipping an undivided
interest (the "Project") in certain pollution conterol
facilities(the "Facilities") at the electric generating plant of
Arkansas Power & Light Company, an Arkansas corporation (the
"Company"), located within the boundaries of the County and known
as Arkansas ___________ (the "Plant"), for sale to the Company,
and paying a portion of the expenses of issuing the Bonds. The
Bonds are all issued under and are all equally and ratably
secured and entitled to the protection given by a Trust Indenture
dated as of _______ _, ____ (the "Indenture"), duly executed and
delivered by the County to the Trustee. The Indenture provides
that the County may hereafter issue Additional Bonds from time to
time under certain terms and conditions contained in the
Indenture and, if issued, such Additional Bonds will be equally
and ratably secured by and entitled to the protection of the
Indenture. Reference is hereby made to the Indenture and all
indentures supplemental thereto for the provisions, among others,
with respect to the nature and extent of the security, the
rights, duties and obligations of the County, the Trustee and the
registered owners of the Bonds, and the terms upon which the
Bonds are issued and secured. The terms and conditions of the
acquisition, construction and equipment of the Facilities, the
use of the proceeds of the Bonds for such purpose, and the sale
of the Facilities by the County to the Company, are contained in
an Installment Sale Agreement dated as of _______ _, ____ (the
"Sale Agreement"), by and between the County and the Company.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Arkansas,
particularly Title 14, Chapter 267 of the Arkansas Code of 1987
Annotated (the "Act"), and pursuant to Orders of the County Court
of the County, which Orders authorized the execution and delivery
of the Indenture. The Bonds do not constitute an indebtedness of
the County within the meaning of any constitutional or statutory
limitation.
REFERENCE IS HEREBY MADE TO THE ADDITIONAL PROVISIONS
OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH FOR ALL
PURPOSES SHALL HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all
acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of the Bonds do exist,
have happened and have been performed in due time, form and
manner as required by law; that the indebtedness represented by
the Bonds, together with all obligations of the County, does not
exceed any constitutional or statutory limitation; and that the
above referred to revenues pledged to the payment of the
principal of and premium, if any, and interest on the Bonds as
the same become due and payable will be sufficient in amount for
that purpose.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under
theIndenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, _______ County, Arkansas, has
caused this Bond to be executed by its County Judge and County
Clerk, thereunto duly authorized (by their manual or facsimile
signatures), and its corporate seal to be affixed or imprinted,
all as of the date of this Bond shown above.
_________ COUNTY, ARKANSAS
By ____________________________
ATTEST: County Judge
______________________________
County Clerk
(SEAL)
(Form of Trustee's Certificate)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in
and issued under the provisions of the within mentioned
Indenture.
_______________________________
_______________________________
TRUSTEE
By_____________________________
Authorized Signature
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED, __________________________________
("Transferor"), hereby sells, assigns and transfers unto
_______________, the within Bond and all rights thereunder, and
hereby irrevocably constitutes and appoints ________________
("Transferee") as attorney to transfer the within Bond on the
books kept for registration thereof with full power of
substitution in the premises.
DATE: __________________
_________________________________
Transferor
GUARANTEED BY:
______________________
NOTICE: Signature(s) must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or a trust
company.
(Reverse Side of Series ____ Bond)
ADDITIONAL PROVISIONS
The Bonds are not general obligations of the County but
are special obligations payable solely from revenues derived from
the Facilities (including particularly payments under the Sale
Agreement). The Sale Agreement provides for payments by the
Company, for the purchase of the Facilities on an installment
basis, in amounts sufficient to provide for the payment of the
principal of and premium, if any, and interest on the Bonds as
due and payable. Such payments will be made directly to the
Trustee and deposited in a special account of the County
designated "________ County, Arkansas Pollution Control Revenue
Refunding Bond Fund - Arkansas Power & Light Company Project,"
and such payments have been duly assigned to the Trustee for that
purpose. The obligation of the Company to make such payments is
evidenced in part by the Company's first mortgage bonds issued
and delivered to the Trustee an additional series under the
Mortgage and Deed of Trust dated as of October 1, 1944, between
the Company and Guaranty Trust Company of New York (now Morgan
Guaranty Trust Company of New York) and Henry A. Theis (John W.
Flaherty, successor), and, as to property, real and personal,
situated or being in Missouri, Marvin A. Mueller (The Boatmen's
National Bank of St. Louis, successor), as trustees, as amended
and supplemented. All the rights and interest of the County in
and to the Sale Agreement (except for certain rights specified in
the Indenture) have been assigned under the Indenture to the
Trustee to secure the payment of the principal of and premium, if
any, and interest on the Bonds.
The owner of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to enforce
the covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds and Additional Bonds
issued under the Indenture and then outstanding may be declared
and may become due and payable before the stated maturity
thereof, together with accrued interest thereon.
Modifications or alterations of the Indenture, or of
any indenture supplemental thereto, may be made only to the
extent and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity
as follows:
(a) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, in whole but not
in part, at any time, at a redemption price equal to the
principalamount being redeemed plus accrued interest to the
redemption date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued construction or operation of the Facilities
is impracticable, uneconomical or undesirable due to
(A) the imposition of taxes, other than ad valorem
taxes currently levied upon privately owned property
used for the same general purpose as the Facilities, or
other liabilities or burdens with respect to the
Facilities or the construction or operation thereof,
(B) changes in technology, in environmental standards
or legal re-quirements or in the economic availability
of materials, supplies, equipment or labor or (C)
destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of the Facilities
or the Plant shall have been condemned or taken by
eminent domain; or
(iv) the construction or operation of the
Facilities or the Plant shall have been enjoined or
shall have otherwise been prohibited by any order,
decree, rule or regulation of any court or of any
federal, state or local regulatory body, administrative
agency or other governmental body.
(b) The Bonds shall be subject to mandatory
redemption, at a redemption price equal to the principal amount
being redeemed plus accrued interest to the redemption date, on
the one hundred eightieth day (or such earlier date as may be
designated by the Company) after a final determination by a court
of competent jurisdiction or an administrative agency, to the
effect that as a result of a failure by the Company to perform or
observe any covenant, agreement or representation contained in
the Sale Agreement, the interest payable on the Bonds is included
for federal income tax purposes in the gross income of the
bondholders thereof, other than any bondholder who is a
"substantial user" of the Facilities or a "related person" within
the meaning of Section 147(a) of the Internal Revenue Code of
1986, as amended (the "Code"). No determination by any court or
administrative agency will be considered final unless the Company
has participated in the proceeding which resulted in such
determination, either directly or through a bondholder, to a
degree it reasonably deems sufficient and until the conclusion of
any appellate review sought by any party to such proceeding or
the expiration of the time for seeking such review. The Bonds
shall be redeemed either in whole or in part in such principal
amount that the interest payable on theBonds remaining
outstanding after such redemption would not be included in the
gross income of any bondholder thereof, other than a bondholder
who is a "substantial user" of the Facilities or a "related
person" within the meaning of Section 147(a) of the Code.
(c) The Bonds shall be subject to optional redemption
by the County, at the direction of the Company, on and after
_______ 1, ____, in whole at any time or in part from time to
time, by lot or in such other manner as may be determined by the
Trustee to be fair and equitable, at the redemption prices
(expressed as percentages of principal amount) set forth below,
plus accrued interest to the redemption date:
Redemption
Redemption Period Price
_________, ____ through ___________, ____ ___%
_________, ____ through ___________, ____ ___%
_________, ____ through ___________, ____ ___%
_________, ____ through ___________, ____ ___%
_________, ____ and thereafter 100
The Bonds shall also be subject to optional redemption by the
County, at the direction of the Company, in whole but not in
part, at any time prior to _________, ____, 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 any of the Bonds or portions thereof
(which shall be $_____ or any integral multiple thereof) are
called for redemption, notice thereof shall be given by the
Trustee by first class mail, postage prepaid, to the registered
owner of each such Bond addressed to such registered owner at his
registered address and placed in the mails not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed
for redemption; provided, however, that failure to give such
notice by mailing, or any defect therein, shall not affect the
validity of any proceeding for the redemption of any Bond with
respect to which no such failure or defect has occurred. Each
notice shall identify the Bonds or portions thereof being called,
and the date on which they shall be presented for payment. After
the date specified in such call, the Bond or Bonds so called will
cease to bear interest provided funds sufficient for their
redemption have been deposited with the Trustee, and, except for
the purpose of payment, shall no longer be protected by the
Indenture and shall not be deemed to be outstanding under the
provisions of the Indenture.
With respect to notice of redemption of Bonds at the
option of the County (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
andinterest on the Bonds to be redeemed shall have been received
by the Trustee prior to the giving of such notice, such notice
shall state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, such notice shall be of no force and effect, the County
shall not redeem such Bonds and the Trustee shall give notice, in
the manner in which the notice of redemption was given, that such
moneys were not so received.
This Bond may be transferred on the books of
registration kept by the Trustee by the registered owner or by
his duly authorized attorney upon surrender hereof, together with
a written instrument of transfer duly executed by the registered
owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without
coupons in denominations of $_____ and any integral multiple
thereof. Subject to the limitations and upon payment of the
charges provided in the Indenture, Bonds may be exchanged for a
like aggregate principal amount of Bonds of other authorized
denominations.
This Bond is issued with the intent that the laws of
the State of Arkansas will govern its construction.
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